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[Cites 10, Cited by 0]

Delhi District Court

Pooja Talwar vs Delhi Development Authority on 19 October, 2020

 IN THE COURT OF ADDITIONAL DISTRICT JUDGE(ADJ)
          SOUTH DISTRICT, SAKET COURTS
       PRESIDED OVER BY MS. POOJA TALWAR

                              CS NO. 505/2019.                                  Digitally
                                                                                signed by
In the matter of :                                                              POOJA
                                                                   POOJA        TALWAR
Vaitalik Society,                                                  TALWAR       Date:
                                                                                2020.10.26
Registered Office At                                                            17:02:10
                                                                                +0530
A­8, Qutub Institutional Area,
Katwaria Sarai, New Delhi.                                ...... Plaintiff

Versus
Delhi Development Authority,
Service to be effected through
Its Vice Chairman, INA,
Vikas Sadan, New Delhi.                                   .... Defendant.


Date of filing                         :         30.03.2007.
Final arguments heard on               :         19.10.2020.
Judgment pronounced on                 :         19.10.2020.

     Suit for Declaration, mandatory and Permanent Injunction.


J U D G M E N T:

1. This is a suit for declaration, mandatory and permanent injunction filed by the plaintiff against the defendant.

CS NO. 505/2019 Vaitalik Society v. Delhi Development Authority Page No.1/30

PLAINTIFF CASE:

2. The case of the plaintiff is that the plaintiff is a society engaged in promoting interstate integration by means of cultural exchanges and is devoted to the promotion of the performing arts both Indian and Western and providing support and aid to poor and deserving artists interested in music and fine arts and crafts and also providing opportunities for their training on non profit basis.

3. It is stated that the plaintiff had been allotted a vacant land having an area of 0.5 acre at A­8, Qutub Institutional Area, Katwaria Sarai on 10.02.1984 by defendant no.1 vide perpetual lease deed executed in favour of plaintiff on 17.12.1986. After allotment and sanctioned plan, plaintiff started construction as per the building plans out of its own funds and resources. However, since the plaintiff society is a non­profit making organization, plaintiff society faced some difficulty in completing the construction due to paucity of the funds therefore, vide letters dated 20.02.1986, 05.02.1987 and 25.05.1989 to the defendant no.1 requesting to grant permission to the plaintiff society to let out the building on rent to enable the plaintiff to raise funds for completion of the construction. But despite receipt of said letters, the defendant did not grant permission to the plaintiff. Thereafter vide letter dated 06.08.1988 plaintiff intimated the defendant no.1 that there is a discrepancy in the size of the plot CS NO. 505/2019 Vaitalik Society v. Delhi Development Authority Page No.2/30 allotted to the plaintiff. However, despite request, defendant no.1 did not take any action to sort out the discrepancy regarding the size of the plot. Therefore plaintiff vide its letter dated 25.07.1990 requested defendant no.1 to provide new dimensions of the site plan of the plot of the society. Defendant no.1 handed over revised possession of plot to the plaintiff society on 14.09.1990 and subsequently construction was completed by the plaintiff society on 11.08.1995 after getting loan from the corporation bank for which it was decided by the plaintiff to let out some portion of the total built up area of the said building as per the policy of defendant no.1 subject to payment of 10% of the rent/service charges/license fee. Defendant no.1 allowed renting out of the 30,000/­ sq. ft. banks for commercial use and also permitted the change of land use in the case of M/s. India Tourism Development Corporation Ltd. which is being used as a hotel for commercial offices. Vide circular dated 08.07.1996, defendant no.1 framed a policy to grant permission to the institution to let out 40% of the built up area for commercial purposes.

4. Plaintiff let out a portion of the said building to M/s. Whirlpool in 1997 which was about 30% of the built up area and the plaintiff again submitted an application for permission to sublet the said portion vide letter dated 07.04.1997 to the defendant no.1 in response thereto defendant no.1 requested to furnish certain documents which were submitted by the plaintiff vide letter dated CS NO. 505/2019 Vaitalik Society v. Delhi Development Authority Page No.3/30 14.04.1997. Thereafter, plaintiff again wrote letter dated 09.06.1997 however, defendant no.1 did not communicate to the plaintiff as to what decision had been taken regarding the said proposal. As per guidelines of letter dated 10.12.1999 of the Minister of Urban Development, institutions were permitted to sublet upto 25% of the total built up area in a building and use an additional 15% for the purpose of residence of functionaries of the institution. Part II of the said letter states that in cases where the institutions had already sublet the part of the building without prior permission, then in that case the said subletting would be allowed after making payment of the fixed percentage of rent to DDA. Therefore, since the plaintiff had already subletted the part of the building prior to the said letter, the case of the plaintiff society would fall inthe category in Part­II of this letter. Pursuant to this notification, DDA also issued public notice citing the same terms and conditions. Various societies applied with DDA for availing the permission for subletting as per the aforesaid policy.

5. The Ministry of Urban Development issued a letter no.K­ 20013/6/99­DDA, dated 29.02.2000 further relaxing the provisions of its earlier letter dated 10.12.1999 by granting permission to one of the society upto 75% of the total built up area. In case of one society namely M/s. Population Foundation of India, the permission was granted to sub­let 68% of the built up area subject to payment of 15% of the rental income vide letter dated 17.04.2000.

CS NO. 505/2019 Vaitalik Society v. Delhi Development Authority Page No.4/30

6. Plaintiff again sent another letter dated 21.12.2000 requesting the defendant to grant permission for renting out the extra space, which was replied by defendant vide letter dated 18.01.2001 informing the plaintiff that proposal is still under consideration. The defendant then suddenly issued a show cause notice dated 23.03.2006 to the plaintiff society alleging that the plaintiff has subletted the entire premises to Technology Development Board and M/s. Whirlpool. The plaintiff replied the said show cause notice vide reply dated 26.04.2006 intimating that the subletting was within the permissible limit as granted by defendant. Plaintiff also intimated the defendant that no show cause notices dated 23.07.2004 and 15.03.2006 were received by the plaintiff.

7. The defendant vide letter dated 07.11.2006 bearing no.F.12(7)06/IL/2492 intimated the MCD that various properties including the property allotted to plaintiff exceeded the subleeting norms of 25% of the available area. On 14.11.2006, the entire property of the plaintiff was sealed by MCD on the instructions of DDA. Then the defendant also issued final show cause notice dated 09.11.2006 and the plaintiff replied it vide reply dated 28.11.2006.

8. Pursuant to CWP (Civil) No.4582/2003 titled as Kalyan Sanstha Welfare Organisation v. Union of India, some of the tenants CS NO. 505/2019 Vaitalik Society v. Delhi Development Authority Page No.5/30 of the plaintiff namely Technology Development Board, Stanley Consultant India Pvt. Ltd. and Whirlpool India Ltd. vacated the subject premises after de­sealing of the property but Whirlpool India Ltd. was given extension for the same. Thereafter, the property was got re­sealed by the defendant through MCD.

9. It is further stated that thereafter, the defendant proceeded to terminate the lease in favour of the society vide letter dated 05.02.2007 and directed the plaintiff to hand over the possession of the said land/building thereon to A.D. (Survey) by 12.02.2007, failing which the defendant would take action for resumption of the premises. The termination of lease was illegal and contrary to the perpetual lease deed dated 17.12.1986. The plaintiff replied the said termination vide reply dated 10.02.2007 and asserted that plaintiff had refused to accept the termination as defendant had no authority, jurisdiction and power to take the possession of the land without due process of law. Since the termination of lease as well sealing of the properties is illegal, hence the suit.

Defendant's Case:

10. Defendant filed the written statement stating that the suit filed by plaintiff is barred under the provisions of Section 53­B (1) of the Delhi Development Act, 1957 and the same is liable to be CS NO. 505/2019 Vaitalik Society v. Delhi Development Authority Page No.6/30 dismissed on this ground. The plaintiff has neither served the requisite mandatory notice upon defendant as contemplated under section 53­B(1) of the Delhi Development Act nor the plaint contains any statement to this effect that the notice was sent or delivered to defendant. It is further stated that members of the plaintiff society are also members of four other societies (which were sealed for commercial subletting) who had also subletted their properties to the extent of 100%. A builder of Delhi, Anant Raj Agencies through Mr. Anil Sarin/Mr. Ashok Sarin, and their associates, have taken over many of such properties/societies in the area of Katwaria Sarai, New Delhi.
11. It is further stated that the land/plot of 0.5 acres was allotted to plaintiff in the area of Qutub Institutional Area, Kathwaria Sarai, New Delhi on concessional rates for the purpose of promoting performing arts: dance and music and other cultural activities. It is denied that plaintiff society duly started the construction as per the building plans on the vacant plot out of its own funds and resources and society vide letters dated 20.02.1986, 05.02.1987, 25.05.1989 and reminder dated 18.01.1994 requested defendant for permission to let out the building on rent to enable it to raise funds for completion of the construction. It is further stated that plaintiff had not approached the defendant DDA for any such permission. It is further denied that plaintiff vide letter dated 06.08.1998 intimated the CS NO. 505/2019 Vaitalik Society v. Delhi Development Authority Page No.7/30 defendant that there was discrepancy in the size of the plot allotted to the society and defendant vide its letter dated 07.09.1988 requested the plaintiff society to get the matter sorted out regarding the size of the plot. It is further denied that plaintiff vide letter dated 25.07.1990 again requested the defendant to provide new dimensions of the site plan of the plot of the society. It is further denied that "revised possession" of the plot was handed over on 14.09.1990 or that construction was completed on 11.08.1995. It is further denied that defendant had allowed the renting out of 30,000/­ sq. feet for commercial use. It is further denied that defendant vide circular dated 08.07.1996 framed a policy to grant permission to the institutions to let out 40% of the built up area for commercial purposes. The said circular was modified vide circular dated 10.12.1999 which was applicable prospectively. It is denied for want of knowledge that plaintiff allotted about 30% of the built up area to Whirlpool in 1997.

It is further stated that since the sublettees by the plaintiff exceeded the permissible limit, the question of the plaintiff falling within the ambit of circular dated 10.12.1999 does not arise. Repeated show cause notices were issued to plaintiff on 23.07.2004, 15.03.2005 and 23.03.2006.

12. It is 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 unauthorisedly and the CS NO. 505/2019 Vaitalik Society v. Delhi Development Authority Page No.8/30 society did not pay any misuse or subletting charges to DDA despite service of show cause notices. It is further submitted that no permission was granted to any society by DDA beyond the permissible limit of 25% built up area except to one project work of Ministry of Health and Family Welfare i.e. Population Foundation of India, where the permission was given for subletting of 68% of the built up area by Ministry of Urban Development, Government of India.

13. It is further stated that in compliance with orders of the Division Bench of the Hon'ble High Court passed in CWP (Civil) No.4582/2003 titled as Kalyan Sanstha Welfare Organisation v. Union of India, certain societies were allotted lands by DDA on concessional rates on the purported ground that societies were social/charitable/educational in nature but they utilized the premises constructed on these plot contrary to their aims and objectives. Orders were passed for sealing of the premises of such societies and directions were also given to DDA to lodge an FIR with Delhi Police for taking appropriate actions. It further stated that defendant in order to correct the factual position regarding the subletting of various properties in the institutional area and the extent thereof, DDA called MCD to initiate action as per the provisions of the DMC Act and various orders passed by the courts. It is further submitted that the action against the society for sealing of the premises was CS NO. 505/2019 Vaitalik Society v. Delhi Development Authority Page No.9/30 taken as a society had sublet the premises in question to the extent of 100% of built up area to the multinational corporations for commercial use and no prior permission of the lessor was sought before subletting. It is further denied that termination of lease was wrong, illegal and contrary to the terms of perpetual lease deed dated 17.12.1986. It is further denied that any action of the defendant qua the plaintiff is itself contrary to letter dated 10.12.1999 issued by the Ministry of Urban Development and in the said letter it was mentioned that in past cases the defendant can only charge the subletting charges and cannot under any circumstances terminate the lease. It is further submitted that office order 4/2012 is not applicable to the plaintiff society but its office order no.1/2008 is applicable. The area sublet by the plaintiff was 100% which was far in excess of 25% of the total area. The entities to which plaintiff had sublet are not converted under the scope of "permitted organisations"

and thus the plaintiff shall have to share the rent with the DDA in accordance with sub clause (iii) of clause 3 and not in terms of sub clause (ii) clause 3.
14. It is admitted that vide circular dated 10.02.2015, DDA had adopted the office order no.4/2012 however the said office order is prospective in nature and does not apply to the plaintiff society for the past violations. All the allegations of the plaintiff in its plaint are denied by the defendant.
CS NO. 505/2019 Vaitalik Society v. Delhi Development Authority Page No.10/30
15. 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 29.04.2011:­ ISSUES:
1. Whether the suit is not maintainable for want of notice under Section 53(B) of the Delhi Development Act?
2. Whether the suit is not maintainable for want of notice under Section 477/478 of DMC Act.
3. Whether sealing of property in question was illegal? OPP
4. Whether termination of lease deed was illegal? OPP
5. To what relief the plaintiff is entitled? OPP
16. During plaintiff's evidence, plaintiff examined four witnesses. Sh. Anil Sarin was examined as PW­1, Sh. Shiv Kumar, Notice Server, Commissioner of Income Tax, Minto Road, New Delhi was examined as PW­2, Sh. Vijay Kumar, Junior Secretariat Assistant, L&DO, Nirman Bhawan as PW­3 and Sh. Vivek Chaudhary, Assistant Director, Institutional Land Branch, DDA, Vikas Sadan, INA, New Delhi as PW­4.
17. PW­1 Sh. Anil Sarin tendered his affidavit as PW1/A and CS NO. 505/2019 Vaitalik Society v. Delhi Development Authority Page No.11/30 relied upon following documents :
• Letter dated 20.02.1986 is Ex. PW­1/4 (OSR), • Letter dated 05.02.1987 is Ex. PW­1/5 (OSR), • Letter dated 25.05.1989 is Ex. PW­1/6 (OSR), • Letter dated 20.02.1994 is Ex. PW­1/7 (OSR), • Copy of letter dated 17.04.2000 is Mark P­3, • Letter dated 07.04.1997 is Ex. PW­1/9 (OSR), • Letter dated 11.04.1997 is Ex. PW­1/10 (OSR), • Letter dated 14.04.1997 is Ex. PW­1/11 (OSR), • Copy letter dated 30.04.1997 is Mark P­4, • Copy of letter dated 09.06.1997 is Mark P­5, • Letter dated 21.12.2000 is Ex. PW­1/14 (OSR), • Letter dated 18.01.2001 is Ex. PW­1/15 (OSR), • Copy of letter dated is Mark P­6, • Copy of letter dated 26.04.2006 is Mark P­7, • Copy of letter dated 07.11.2006 is Mark P­8, • Copy of notice dated 28.11.2006 is Mark P­9, • Copy of letter dated 05.02.2007 is Mark P­10, • Copy of letter dated 10.02.2007 is Mark P­11, • Postal receipt is Ex. PW­1/23 (OSR), • Office order dated 17.01.2008 is Ex. PW­1/24 (already exhibited as Ex. P­3 during the admission/ denial of CS NO. 505/2019 Vaitalik Society v. Delhi Development Authority Page No.12/30 documents), • Copy of notice dated 17.12.2011 is Mark P­12, • Office order dated 22.08.2012 is Mark P­13, • Certificate dated 17.11.2000 is Mark P­14, • Copy of letter dated 15.10.1976 is Mark P­15, • Original notice u/o XII Rule 8 CPC given to the defendant on 04.05.2017 as Ex. PW­1/28.

(Court Observation : The Ex. PW­1/8, Ex. PW­1/12, Ex. PW­1/13, Ex. PW­1/16, Ex. PW­1/17, Ex. PW­1/18, Ex. PW­1/19, Ex. PW­ 1/20, Ex. PW­1/21, Ex. PW­1/22, Ex. PW­1/25, Ex. PW­1/26, Ex. PW­1/27 have not been marked in the evidence of PW­1 and the documents which are tendered in the evidence of PW­1 may be read accordingly).

• Copy of circular dated 08.07.1996 is Mark P­16, • Copy of public notice by defendant is Mark P­17, • Copy of letter dated 29.02.2000 is Mark P­18 and • Copy of policy dated 10.12.1999 is Mark P­19.

18. PW­2 Sh. Shiv Kumar was a summoned witness, who brought some documents i.e. reply dated 05.12.2017 by Assistant Commissioner of Income Tax, Head Quarter to letter dated 17.11.2000 Ex.PW2/1 and copy of letter dated 17.11.2000 CS NO. 505/2019 Vaitalik Society v. Delhi Development Authority Page No.13/30 Ex.PW2/2.

19. PW­3 Sh. Vijay Kumar was also a summoned witness who brought documents i.e. letter no.J­130011/1/94­LD dated 10.12.1999 Ex.DW3/A and letter no.24(276) 2012/CDN dated 22.08.2012 (office order no.4/2012) Ex.PW3/B.

20. PW­4 Sh. Vivek Chaudhary was also a summoned witness and he brought the summoned record i.e. photocopies of some letters of various dates, which were marked as Mark PW4/A to Mark PW4/E and Ex.PW4/1 (OSR). All the witnesses were duly cross­ examined by counsel for defendant and thereafter, plaintiff's evidence was closed.

21. In defendants' evidence, defendant examined only two witnesses in support of its case. Sh. Vijay Kumar, JSA, L&DO Office, Nirman Bhawan as DW­1, who brought the summoned record i.e. letter dated 04.08.2011 issued by Dy. Director (IL) DDA alongwith office order no.1/2008 and 4/2012 Ex.DW1/1 (colly). Sh. Vivek Chaudhary, Assistant Director, Institutional Land Branch, DDA, Vikas Sadan was examined as DW­2. He tendered his evidence by way of affidavit Ex.DW2/A and relied upon following documents:

CS NO. 505/2019 Vaitalik Society v. Delhi Development Authority Page No.14/30
1. Show cause notice dated 23.03.2006 Ex.DW2/1.
2. Reply dated 26.04.2006 Ex.DW2/2.
3. Cancellation letter dated 05.02.2007 Ex.DW2/3.
4. Letter dated 07.11.2006 Mark P­8.
5. Letter dated 04.01.2007 Ex.DW2/5.
6. Letter dated 02.02.2017 Ex.DW2/6.
7. Letter dated 28.02.2017 Ex.DW2/7.
8. Letter dated 10.03.2017 Ex.DW2/8.
9. Photocopy of letter dated 05.02.2011 Mark DW2/A2.

22. Both the witnesses were duly cross­examined by counsel for plaintiff and thereafter defendant's evidence was closed.

23. On 20.02.2020 on statement of counsel for plaintiff, defendant no.2 was deleted from the array of parties.

24. I have heard ld. counsels for both the parties and have gone through the records carefully. My issue wise findings are as under:

FINDINGS OF THE COURT:
Issue No.1: Whether the suit is not maintainable for want of notice under Section 53(B) of the Delhi Development Act? OPD.
CS NO. 505/2019 Vaitalik Society v. Delhi Development Authority Page No.15/30

25. It is contented by defendant DDA that the suit is not maintainable as the notice under section 53 (B) DDA Act was not served by plaintiff upon the defendant. The instant suit is filed by plaintiff seeking declaration as well as permanent and mandatory injunction against the defendants. Since the lease of the plaintiff was terminated accordingly due to compelling urgent circumstances, the plaintiff could not have waited to give notice under section 53 (B) DDA Act. Reliance is place on a judgment of the Hon'ble Apex Court in Raghunath Das v. Union of India & Anr., 1969 SCC 674 which reads as under: "The object of the notice contemplated by Section 80, CPC is to given to the concerned Government and public officers opportunity to reconsider the legal position and to make amends or settle the claim, if so advised without litigation. The legislative intention behind that section is that public money and time should not be wasted on unnecessary litigation and the Government and the public officers should be given a reasonable opportunity to examine the claim made against them lest they should be drawn into avoidable litigation. The purpose of law is advancement of justice. The provisions in Section 80 are not intended to be used as boobytrap against ignorant and illiterate persons".

10. In the present case there is no dispute that appellants had filed an application for grant of leave under Section 80(2) which was not dealt with and considered by the court. On the contrary the court CS NO. 505/2019 Vaitalik Society v. Delhi Development Authority Page No.16/30 had proceeded to frame a preliminary issue on the preliminary objection take by respondents in their written statement and dismissed the suit for want of service of notice under Section written statement and dismissed the suit for want of service of notice under Section 80. This, in our view, could not have been done, because once the court was seized of appellants's application under Section 80(2) it ought to have disposed of this application first by either granting leave or refusing it in which case it was to return the plaint to them which they could refile after service of two months notice. It would not have dismissed without doing and this renders the impugned dismissed order straightway unsustainable. The order warrants setting aside on this ground alone.

13. It is true that Section 53 B of DDA Act does not carry a provision analogous to the provisions of Section 80(2) to provide for grant of leave in filing the suit without service of two months notice. But it is also contains a proviso in Sub­Section (3) which make the embargo contained in Sub­Section (1) inapplicable in a suit in which relief claimed is that of injunction only.

14. But this apart, taking in regard that this court had registered the suit and granted the stay order and that respondents had contested it all through even notice under Section 53­B should be deemed waived in the facts and circumstances of the case. After all the purpose of notice under Section 53­B of DDA Act is the same as that Section 80 CPC i.e. to bring the claim to the autority's notice CS NO. 505/2019 Vaitalik Society v. Delhi Development Authority Page No.17/30 so that it may concede or contest it. Once the authority had contested it on merits even at preliminary stage, it could not complaint or non­ service of notice under Section 53­B now. Nor could it be held fatal to justify the dismissal of the suit."

26. In view of the aforesaid observations, DDA has contested the suit, hence the notice under section 53 (B) DDA Act is deemed to be waived. This issue is accordingly decided in favour of the plaintiff and against the defendant.

Issue No.2: Whether the suit is not maintainable for want of notice under Section 477/478 of DMC Act? OPD

27. Onus to prove this issue was on Municipal Corporation of Delhi (MCD). MCD has already been deleted from the array of parties and has not led any evidence. Moreover since the relief of injunction is sought by the plaintiff, hence in view of clause (3) of Section 478 of DMC Act the object would have been defeated by giving prior notice enforce institution of suit. Since the plaintiff had sought an urgent relief therefore prior notice was not required. This issue is accordingly decided in favour of the plaintiff and against the defendant.

CS NO. 505/2019 Vaitalik Society v. Delhi Development Authority Page No.18/30

Issue No.3: Whether sealing of property in question was illegal?

OPP & Issue No.4. Whether termination of lease deed was illegal? OPP

28. All these issues are taken together as they are interlinked. The onus to prove of all these issues was on the plaintiff. The plaintiff in the present suit has sought a declaration in its favour against the defendant for declaring the letter dated 05.02.2007, which is Ex.DW2/3, as illegal, null and void and has further sought the direction to the defendant to de­seal the property which was sealed by MCD on directions of defendant DDA. In order to decide the aforesaid issues it would be relevant to understand the conditions on the basis of which the lease granted to the plaintiff by DDA was terminated. DDA vide its termination notice dated 05.02.2007 Ex.DW2/3 cancelled the allotment of perpetual lease granted to the plaintiff on the following grounds:

1. The plaintiff as a lessee was required to use the constructed building exclusively for auditorium.
2. In view of clause 5(a)12 of lease deed, the plaintiff was required to obtain a written consent from DDA for using it for any purpose other than auditorium.
3. The plaintiff society had sublet 100% of the area without prior permission of the competent authority.
4. The reply to the show cause notice furnished by society was not found satisfactory by the authority and that the society did not furnish CS NO. 505/2019 Vaitalik Society v. Delhi Development Authority Page No.19/30 the details required by the office of DDA and even unauthorised subletting was neither brought down nor the subletting charges were paid to the DDA.

29. In order to decide whether termination notice issued by the DDA was illegal, it would be pertinent to discuss the grounds in detail. First ground is of subletting to non permitted organization, it is claimed by DDA that the society has sublet the premises to commercial organizations i.e. M/s. Technology Development Board, Whirlpool and Nortel unauthorizedly.

30. Counsel for plaintiff has argued that circular dated 19.11.1999 permitted to lease out to the companies which were set up under the Companies Act. The said circular is Ex.DW2/Z­1. The plaintiff was governed by the said policy and the relevant extract of the policy is reproduced hereinunder:

"4. The institution may also be allowed to sublet a portion of built­up space with prior permission of DDA for service organizations like banks or organisations of similar nature or organisations which have been set up under a statute such a Companies Act, 1956, Indian Trusts Act etc. or institutions which have the requisite permission of RBI subject to the following conditions­ CS NO. 505/2019 Vaitalik Society v. Delhi Development Authority Page No.20/30
(a) They will not run shops, restaurants, hotels, any industrial or manufacturing activity causing noise or pollution or disturbing the manufacturing activity causing noise or pollution or disturbing the environment of the area in any way.
(b) The income received on account of subletting would be ploughed back to the institution for creation of assets.
(c) The subletting charges would be required to be paid on an annual basis in advance."

31. In view of the aforesaid office order, DDA had permitted the lessee to let out the premises to organizations which were set up under the Companies Act and the same is admitted by DW­2 in his cross­examination. Further, DDA has failed to prove that the sub­lettees of the plaintiff were causing any noise pollution or disturbing the environment of the surrounding area and all the companies to whom the plaintiff had sub­let the premises were entities incorporated under the Companies Act. DW­2 has admitted that DDA had been granting permission for sub­letting the premises to entities as per clause 4 of Ex.DW2/Z­1.

32. Since both, Whirlpool and Nortel, are permissible entities in view of clause 4 of Ex.DW2/Z­1, hence in view of policy CS NO. 505/2019 Vaitalik Society v. Delhi Development Authority Page No.21/30 dated 10.12.1999 Ex.PW3/A which was in existence at the time when premises were sub­let by the plaintiff, the plaintiff could let out the premises to the companies registered under the Companies Act. As per the termination notice the plaintiff had let out the premises to Nortel and Whirlpool which are both registered under the Companies Act, hence the DDA had erroneously included the said ground of subletting to non permitted organisation in termination notice Ex.DW2/3.

33. Second ground in the cancellation notice is regarding Subletting of the premises by the society without the prior written consent of DDA. It is claimed by DDA that the plaintiff had sublet the premises without prior consent of DDA. In order to prove the same, DDA has placed reliance upon Inspection Report dated 07.02.2006 by virtue of which it had come to the knowledge of DDA that the plaintiff had sublet the entire building to Technology Development Board and Whirlpool without permission of DDA which is contrary to the terms and conditions of the Lease Deed.

34. In rebuttal, plaintiff has relied upon its letter Ex.PW1/4 dated 20.02.1986, letter Ex.PW1/5 dated 05.02.1987, letter dated 25.05.1989 Ex.PW1/6, letter dated 18.01.1994 Ex.PW1/7, letter dated 17.04.2000 Mark P­3. Further the plaintiff has placed reliance CS NO. 505/2019 Vaitalik Society v. Delhi Development Authority Page No.22/30 upon Ex.PW1/14 dated 21.12.2000 showing that from time to time letters were written seeking permissions from DDA for subletting the premises to other entities. Vide its letter E.xPW1/15, the plaintiff was informed by the DDA that the permission sought by the plaintiff is still under consideration and as and when the decision is taken the plaintiff would be informed. The said letter is dated 18.01.2001. Thereafter, without further communicating any decision on the proposal of the plaintiff a show cause notice E.xDW2/1 was issued to the plaintiff by defendant regarding the illegal subletting of the property which was duly replied by the plaintiff explaining the circumstances under which the premises were sublet. As per policy dated 10.12.1999 Ex.PW3/A clause (2) mentions about sublet without prior permission. A similar clause was introduced even in the subsequent policy of 2008. The relevant extract of the said office order is reproduced hereinunder:

"3. Allotments made in part where space has been sub­ let without prior permission.
(i) Only 25% of the built­up space in respect of a socio cultural institution can be sub subject to permissible FAR and no separate residential use would be permitted. I watch and ward residence would be as permitted as per the provisions of the MPD 202.
(ii) In all such cases of permitted sub­letting 15% of the rent realized by the Lessee/allottee institution shall CS NO. 505/2019 Vaitalik Society v. Delhi Development Authority Page No.23/30 be payable to the Lessor/land­owning agency (L&DO) based on the rent deed from the date of the agreement.

Wherever the area so sub­let exceeds the permissible limit of 25%, the Lessee/allottee institution shall pay 20% of the rent respect of whole area sublet until it is brought to permissible limit of 25%.

(iii) Case where the area has been sublet to to the non­ permitted organizations, Lessee/allotted institution shall share the rent with the Lessor/land­owning agents (L&DO) as per the following table:

Area sub­letting (As percentage of Share of rent to built­up space) the Lessor (As percentage of rent) Up to 25 25 More than 25 & up to 50 40 More than 50 & up to 75 50 More than 75 Misuse charges for the excess area
35. The aforesaid office order describes the manner in which the rent was to be shared by the lessee with DDA on the basis of area of sublet. Perusal of the said order would reveal that DDA had the power to condone the acts of subletting where the same was done without prior consent of DDA on receiving of certain percentage of rent and/or misuser charges provided for such subletting in the office CS NO. 505/2019 Vaitalik Society v. Delhi Development Authority Page No.24/30 order.
36. It is claimed by DDA that the plaintiff had let out 100% of the area to various companies however, no evidence has been led by DDA to prove that 100% of the area was let out. DW­2 was specifically asked to tell the area which was sublet by the plaintiff, to which, he replied that as per noting of Assistant Director dated 09.06.2006, it was mentioned that society had sublet the building as under: basement for its own use, ground floor­not declared, first floor used for Nortel­ (some portion), second and third floors by Whirlpool, and as per inspection report dated 19.09.2006, basement by society itself, ground floor to Technology Development Board, first floor and second floor to Whirlpool.

37. Though DW­2 has made a reference to inspection reports dated 09.06.2006 and 19.09.2006 but the said inspection reports have not been brought on record, nor the prior notice has been issued to the plaintiff before carrying out these inspections. The said fact is admitted by DW­2 in question no.29 of his cross­examination. The show cause notice Ex.DW2/1 talks about inspection dated 07.02.2006 whereas as per DW­2, the inspection was carried out on 09.06.2006 and 19.09.2006. The witness is unable to explain as to when the inspection was carried out whether on 07.02.2006 or on the dates as mentioned by DW­2 in his cross­examination. Moreover, CS NO. 505/2019 Vaitalik Society v. Delhi Development Authority Page No.25/30 the cancellation of allotment of the property of the plaintiff was carried out on the basis of show cause notice dated 23.03.2006 where it is mentioned that the building was sublet to Technology Development Board and Whirlpool and as per DW­2 the noting dated 09.06.2006 mentions that the property was sublet to Nortel and Whirlpool and it was only during the inspection carried out on 19.09.2006 that it was found about subletting by the plaintiff to Technology Development Board and Whirlpool. Defendant has failed to prove that when the inspection was actually carried out of the premises and that why a prior notice of the same was not issued to the plaintiff. Hence, the defendant has failed to prove that 100% of the property was sublet. Show cause notice Ex.DW2/1 is contrary to the statement of DW­2. In his cross­examination and interestingly, in termination letter Ex.DW2/3, it is mentioned that the plaintiff has unauthorisedly sublet the property to Nortel and Whirlpool. It does not mention about Technology Development Board.

38. No concrete evidence has been led by DDA either to prove to whom the property was sublet and secondly, what percentage of the premises was actually sublet by the plaintiff. Be that as it may. There is a clause in the policy dated 10.12.1999 by which the plaintiff was governed that all the cases where the subletting was done without prior permission a remedy was available in the form of payment of particular percentage of the rent and/or CS NO. 505/2019 Vaitalik Society v. Delhi Development Authority Page No.26/30 misuser charges wherever applicable. The said policy does not mention about termination of the lease in the cases of subletting without prior permission. The plaintiff in his evidence has been able to bring on record the instances where the acts of other lessees have been condoned by the DDA and in some cases the permission was also granted to sublet 68% of the area. It is admitted by DW­2 that a permission was granted as a special case to Population Foundation of India. Admittedly, the plaintiff herein had written numerous letters seeking permission for subletting which were under consideration and were not rejected by DDA prior to 2006.

39. DW­2 in his cross­examination admitted that DDA is restoring the cancelled lease deeds of the societies which are similarly placed according to the policy number 1/2008. It is admitted by DDA in its written statement that the plaintiff is now governed by policy number 1/2008 Ex.DW1/1 dated 17.01.2008 as the society herein is similarly placed as the societies to which the benefit of policy of 1/2008 has been given by DDA.

40. As per the said policy, clause 3 (iii) the relevant extract is reproduced: "If the lessee/allottee institution comes forward to remedy the breaches and pays the penalty as per the rules, an opportunity may be given to the lessee/allottee institution to attach new norms and enter into fresh agreement fairly stating that it would CS NO. 505/2019 Vaitalik Society v. Delhi Development Authority Page No.27/30 not resort to any sublet for excess of prescribed limit and for violation of the guidelines in future". Hence, the police of 2008 by which the plaintiff society is now governed specifically provides the remedial clause in case of past subletting without prior consent of the DDA.

41. DW­2 has admitted that no personal hearing was accorded to the plaintiff society prior to the inspection or termination. Once the remedial clauses were already provided in the policy in case of subletting without prior consent of DDA, DDA should have taken resort to such measures rather than terminating the lease. It is further admitted by DW­2 that the plaintiff society is entitled for restoration of lease deed in terms of applicable policy of DDA. Hence, lease should not have been terminated on this ground.

42. Insofar as ground no.4 is concerned, it is admitted by DW­2 that no personal hearing was accorded to the plaintiff after the show cause notice was issued. It was not explained to the plaintiff as to how the reply of the society was unsatisfactory. No details were mentioned in the show cause notice which were required to be furnished to the office of the DDA. DDA till date has not calculated the sublet charges payable by the society. Plaintiff society on its own as per its calculation has deposited over Rs.2 Crores with DDA. Once, DDA itself had not calculated the charges payable by the CS NO. 505/2019 Vaitalik Society v. Delhi Development Authority Page No.28/30 society, it could not have terminated the lease of the plaintiff. Natural justice requires a personal hearing to be accorded to someone against whom the adverse order is being passed. In the present case neither the plaintiff is informed about the charges payable by him nor any discrepancy in subletting carried out by the plaintiff. Hence, this ground is arbitrary and should not have been the basis for termination of lease.

43. DDA had terminated the lease primarily on the ground of subletting of the premises by the plaintiff society beyond the prescribed limit and secondly to non­permitted organisations without prior consent of DDA. The said breach, if any, is capable of being remedied. In view of the terms of both the policies of 1999 as well as policy of 2008, DDA could have given an opportunity to the lessee to rectify the said breach and should not have gone ahead to terminate the lease deeds for the defect which was capable of being remedied. In view of the aforesaid discussions, it stands proved that the decision of the DDA of termination of lease of the plaintiff society was illegal and arbitrarily and also the sealing of the property by MCD on directions of DDA is illegal. All three issues are decided in favour of the plaintiff and against the defendant DDA.

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Relief:

44. In view of aforesaid discussions, it is hereby declared that termination notice dated 05.02.2007 is illegal alongwith order of sealing of the property bearing no.A­8, Qutub Institution Area, Kathwaria Sarai, New Delhi. Accordingly, lease of property bearing no.A­8, Qutub Institution Area, Kathwaria Sarai, New Delhi is hereby restored and DDA is directed to de­seal the said property and hand over the possession to the plaintiff. Decree sheet be prepared accordingly. File be consigned to record room after due compliance.

Announced through Video Conferencing on CISCO Webex on 19.10.2020.

(Pooja Talwar) Additional District Judge­01, (South) Saket District Courts, New Delhi.

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