Delhi District Court
Delhi Development Authority vs Sh. Prem Prakash Tyagi on 27 April, 2011
IN THE COURT OF SH. REETESH SINGH
ADDITIONAL DISTRICT JUDGE-01 (NORTH-EAST)
KARKARDOOMA COURTS, DELHI
RCA No. 51/08
IN THE MATTER OF:-
Delhi Development Authority,
Vikas Sadan, I.N.A.
New Delhi, through Sh. B.S. Jaglan (OSD) RL.
......Appellant.
Versus
Sh. Prem Prakash Tyagi,
S/o Sh. B.S. Tyagi,
R/o C-9/246, Yamuna Vihar,
Delhi-110053.
.........Respondent.
Date of Institution of Appeal : 03.12.2008
Date on which Reserved for Judgment : 05.04.2011
Date of Judgment/Order : 27.08.2011
Case I.D. Number : 02402C0384682007
JUDGMENT
1. This appeal has been filed by the appellant Delhi Development Authority (herein after referred to as the DDA) against the impugned judgment and decree dated 25.1.2007 by which suit of the respondent / plaintiff for declaration and permanent injunction was decreed.
RCA No. 51/08 Page no. 1 of 17
2. Brief facts leading to filing of this appeal are that the plaintiff filed suit before Ld. Trial Court seeking relief of declaration and permanent injunction with respect to letter dated 7.3.2001 of the appellant by which perpetual lease of the plaintiff was canceled and to restrain the defendant from implementing the said decision against the plaintiff. Plaintiff claimed that plot no.246, Block C-9, Yamuna Vihar in Ghonda residential area scheme was allotted to him in 1976 and the defendant DDA executed a perpetual lease in respect of the same in favour of plaintiff on 8.2.1977. Plaintiff averred that after getting possession, he raised construction on the plot upon sanction of building plans. Plaintiff claimed that in 1987-1988 he received letters / show cause notices from the office of Lease Administration Officer, DDA alleging that plaintiff was misusing part of premises for running Type and Shorthand College.
3. Plaintiff stated that by letters dated 9.10.1997 and 30.07.1988 he duly replied to the said notices claiming that running of a typing school in a DDA flat was not an offence in terms of news paper report published in Hindustan Times on 15.11.1980. Plaintiff further claimed that in Writ Petition titled O.N. Gupta Vs. DDA, the Hon'ble High Court of Delhi had been pleased to hold that running of a type and shorthand college in a DDA flat was a permissible activity. It was averred that against the said order the defendant DDA had approached the Hon'ble Supreme Court by way of a special leave petition which was dismissed.
RCA No. 51/08 Page no. 2 of 17
4. Plaintiff averred that after sending the reply in 1988 no communication was received from the DDA for the next twelve years and thought that the explanation of the plaintiff had been accepted by the DDA. He subsequently applied with the DDA on 16.11.1999 for conversion of the lease into freehold and deposited all necessary charges as directed by the defendant. However instead of allowing his application for conversion, on 14.3.2001 plaintiff received a letter from the defendant DDA dated 7.3.2001 informing it that lease of the plaintiff was cancelled. Plaintiff received a subsequent letter dated 18.5.2001 from DDA stating that application of plaintiff for conversion of the plot from lease hold to free hold had been rejected on account of cancellation of his lease. Plaintiff issued legal notice dated 4.6.2001 to defendant and then filed the above mentioned suit.
5. Written statement was filed by DDA in which it was stated that show cause notices dated 27.5.1983, 20.2.1987, 28.9.1987, 13.11.1987 and 13.7.1988 were issued asking the plaintiff to show cause as to why his lease be not cancelled since it was found that he was running a type and shorthand college from the said premises. It was stated that in his reply dated 9.10.1987 and 30.07.1988 the plaintiff admitted to running of Type and Shorthand College but claimed that the same was not an offence and on the other hand requested for issuing of no objection certificate. Defendant submitted that running of type and shorthand college from a non-conforming area was not a permissible user under the terms of RCA No. 51/08 Page no. 3 of 17 the lease and was also a violation of the Master Plan of Delhi, which was statutory and binding. It was stated that since misuser of the plot was not discontinued DDA, cancelled the lease by letter dated 7.3.2001 and also rejected the application of the plaintiff for conversion of plot from free hold to lease hold.
6. On the pleadings of the parties Ld. Trial court by order dated 8.7.2003 framed the following issues:
1. Whether suit is bad for want of notice u/s 53-B of DD Act.?OPD
2. Whether suit has been properly valued for the purpose of court fees and jurisdiction?OPD
3. Whether plaintiff is entitled for relief of declaration as prayed for?
OPP
4. Whether plaintiff is entitled for relief of injunction as prayed for? OPP
5. Relief.
7. Plaintiff examined himself as PW1 and proved the executed lease deed as Ex.PW1/A, letter dated 14.1.2000 as Ex.PW1/B, bank challan as EX.PW1/C, copy of letter dated 22.2.2000 written by DDA for furnishing of Bank challan as EX.PW1/D, letter dated 25.6.1983 as Ex.PW1/E, electricity bill as Ex.PW1/F, water bill as Ex.PW1/G, telephone bill as Ex.PW1/H, letter dated 2.7.1983 as Ex.PW1/J, dated 20.2.1987 as Ex.PW1/L, letter dated 28.9.1987 as Ex.PW1/M, letter dated RCA No. 51/08 Page no. 4 of 17 9.10.1987 as Ex.PW1/N, letter dated 13.7.1988 as Ex.PW1/O and letter dated 30.07.1988 as Ex.PW1/P. Plaintiff also examined his father Sh. Baljeet Singh Tyagi as PW2 and Sh. Chandrakant Sharma as PW3.
8. The Defendant on its part examined Sh. K.C. Shah Assistant Director as DW1 who proved show cause notices dated 27.5.1983, 20.02.1987, 28.09.1987, 13.11.1987 and 13.7.1988 as EX.DW1/1 to Ex.DW1/5, cancellation of lease letter dated 7.3.2001 as Ex.DW1/6 and resolution no.105 dated 21.10.1988 as Ex.DW1/7.
9. The ld. Trial court after hearing the parties decided all issues in favour of plaintiff and decreed the suit.
10. Ld. Counsel for the appellant has argued that Ld. Trial Court had decreed suit relying on the judgment of Hon'ble High Court of Delhi in case O.N. Gupta Vs. DDA CRL Misc. (Main) 342/1980 decided on 13.11.1980 in which it was held that if an activity i.e. running of school was permissible, then running of such school from a residence would not amount to violation of Master Plan of Delhi. Counsel for the appellant submitted that the said judgment no longer held the field as by a subsequent judgment in the case of DDA Vs. National Tonnage Club of Farmers reported in 1983 DLT (24) 211 a Division Bench of the Hon'ble High Court of Delhi has been pleased to hold that even though an activity may be a permissible activity, same would not mean that a building or premises meant for residential RCA No. 51/08 Page no. 5 of 17 purpose can be put to any of the users permitted in a residential zone.
11. Counsel for the Appellant therefore submits that since the judgment in the case of DDA Vs. National Tonnage Club of Farmers (Supra) was rendered by a Division Bench of Hon'ble High Court, the same would hold the field as the judgment in the case of O.N. Gupta Vs. DDA was rendered by a Single Bench of the Hon'ble High Court of Delhi.
12. Counsel further submitted that in the present case plaintiff has admitted having used his premises for running of type and shorthand college. The same not only violated the Master Plan but also contravened the terms of the lease executed between the appellant DDA and the respondent plaintiff. Counsel submitted that the terms of lease specifically provided that the lease of the plot was granted for residential purposes only and commercial activity was forbidden. In view of the admitted fact that the plaintiff used the premises for non-residential purposes, action of appellant DDA in canceling the lease was fully justified.
13. Counsel for the respondent on the other hand argued that the judgment of the Hon'ble High Court in the case of DDA Vs. National Tonnage Club of Farmers would not apply to the present case. He submitted that case of plaintiff/respondent was covered by the judgment of the Hon'ble High Court in the case of O.N. Gupta Vs. DDA since issue of Typing and Shorthand College was specifically dealt with in that case. He further submitted that against the said judgment, the DDA had filed a RCA No. 51/08 Page no. 6 of 17 Special Leave Petition before the Hon'ble Supreme Court which was dismissed on 27.7.81. Counsel submits that since the appeal of DDA before the Hon'ble Supreme Court was dismissed, the judgment of Hon'ble High Court in the case of O.N. Gupta was approved by the Hon'ble Supreme Court and in this view of the matter the judgment in the case of DDA Vs. National Tonnage Club of Farmers would not apply.
14. Counsel for respondent thereafter submitted that last notice of the DDA was dated 13.7.1988 which was duly replied to by the plaintiff. Thereafter no action / decision was taken by the DDA on the said show cause notice. On 16.11.1999 plaintiff applied with the DDA for conversion of his lease into free hold. On 14.1.2000 DDA issued a letter to the plaintiff directing him to deposit ground rent. On 24.1.2000 plaintiff deposited requisite ground rent. Thereafter on 22.2.2000 DDA wrote another letter to the plaintiff regarding conversion which was satisfactorily replied by the plaintiff on 27.3.2000. After one year, the DDA vide order dated 7.3.2001 cancelled the lease of the plaintiff and on 18.5.2001 rejected the application for conversion to free hold. Counsel submitted that there is a gap of almost 13 years between the date of last notice issued by DDA and date of cancellation of lease. Delay in taking the decision itself caused prejudice to the plaintiff and amounted to violation of principles of natural justice. Counsel further submitted that effect of cancellation of lease affected civil rights of the plaintiff and RCA No. 51/08 Page no. 7 of 17 the same could not have been done without affording the plaintiff a personal hearing. Counsel therefore, submits that on the ground of violation of principle of natural justice itself suit was fit to be decreed.
15. Counsel for the respondent drew the attention of this court to EX.DW1/7 which is a copy of resolution no.105 dated 21.10.88 of the DDA and argued that the same referred to an earlier resolution no.249 dated 29.3.1967 of the DDA in which the DDA had resolved as under:
1. There is no objection to the running of shorthand and typewriting school in the premises on plot no.1, Block No.51 W.E.A.
2. Functioning of the Kala Vihar School of Indian Act in the premises on plot no.18, Block No.16 W.E.A be not objected to, and no penalty charged and
3. the institutions of the type mentioned in (i) and (ii) above may function in residential areas without payment of any penalty.
Counsel submitted that by resolution no.105 dated 21.10.1988 the DDA resolved for revocation of resolution no.249 dated 29.3.1967 in view of judgment of Hon'ble High Court of Delhi in DDA Vs. National Tonnage Club of Farmers. Counsel submitted that inference that can be drawn from the same is that between 29.3.1967 to 21.10.1988, running of typing and shorthand school from residential premises was a permissible activity.
16. Counsel for respondent thereafter relied on Master Plan for Delhi 2001 and RCA No. 51/08 Page no. 8 of 17 stated that entries 087 and 092 provided that such activity was permissible. Entries 087 and 092 read as under:
"087 Vocational Training Institute: A premises with training facilities for short term courses for discipline, preparatory to the employment in certain profession and trade. It shall be run by public or charitable institution on non-commercial basis. It includes training-cum-work centre."
"092 Commercial and Secretarial Training Centre: A premises having training facilities for stenography, correspondence, record keeping etc."
17. Counsel further argued that action of DDA for cancelling the lease was precipitated only after the plaintiff filed an application for conversion of the plot from lease hold to free hold. Counsel submitted that on the asking of DDA plaintiff deposited all charges such as conversion charges, ground rent etc. for processing of the application. As DDA accepted the application for conversion and the said deposits, DDA was estopped from canceling the lease.
18. In rejoinder counsel for appellant argued that although vide resolution 105 dated 21.10.1988 the DDA had revoked resolution 249 dated 29.3.1967, the same could not be construed to mean that running of type and shorthand college from residential premises was a permissible activity during the said period. Counsel argues that DDA as well as citizens of Delhi are bound by law as declared by the Hon'ble High Court of Delhi. He submitted that the judgment of the Hon'ble High Court in case of DDA Vs. National Tonnage Club of Farmers was passed by RCA No. 51/08 Page no. 9 of 17 Hon'ble Division Bench on 15.7.1983. Hence on and from 15.7.1983 running of commercial activity from residential premises would not be permissible. He submitted that law as declared by the Hon'ble High Court would hold precedence over the terms of resolution of the DDA i.e. resolution of 249 dated 29.3.1967. He further submits that resolution 105 dated 21.10.1988 discussed the judgment of Hon'ble High Court in the case of O.N. Gupta Vs. DDA as well as in the case of DDA Vs. National Tonnage Club of Farmers and said resolution was passed to bring the resolutions of the DDA on the subject matter in conformity with the judgment of Hon'ble High Court in the case of DDA Vs. National Tonnage Club of Farmers.
19. It may be noted that during the course of arguments, on a query by the Court, counsel for DDA submitted that as per the policy of conversion of leases into freehold, cases of misuser of property were compounded by levying misuser charges from the applicant / lease holder.
20. Heard the submissions and perused the record.
21. The Ld. Trial Court with respect to issue no.1 held that notice u/s 53-B of Delhi Development Act was served on the DDA. With respect to issue no.2 it was held that the defendant could not show as to how the suit was undervalued for purposes of court fee and jurisdiction. Both the said issues were decided in favour of the plaintiff. Counsel for appellant has not made any submissions on the findings RCA No. 51/08 Page no. 10 of 17 of the Ld. Trial on the said issues. Hence the same are not being gone into.
22. As regards issues no.3 and 4, Ld. Trial Court decided the same in favour of the plaintiff relying on the judgment of the Hon'ble High Court passed in the case of O.N. Gupta from DDA. Ld. Trial Court observed that the Hon'ble High Court had held that running of type and shorthand college from residential premises did not violate the Master Plan of Delhi.
23. The facts in the present case are admitted. Plaintiff/respondent has not denied that he has used his premises for running of Type and Shorthand College. Only submission was that the same was not illegal in terms of judgment in the case of O.N. Gupta Vs. DDA. However in case of DDA Vs. National Tonnage Club of Farmers decided on 15.7.1983, Hon'ble Division Bench in para 11 has held as under:
"In our view, the above approach of learned Magistrate is not correct. A residential zone would require a number of facilities such as clubs, schools, nurseries, clinics, social and cultural institutions, etc. But this does not mean that a building or premises meant for residential purpose can be put to any of the users permitted in a residential zone. The zonal development plans earmark the sites or the areas in the residential zone which can be put to the various uses such as schools, nurseries, clinics, social and cultural institutions, etc. and those areas can be used for the purpose for which it is earmarked. But it does not mean that a residential house can be used as a school or a club or for any other use which is permitted in a RCA No. 51/08 Page no. 11 of 17 residential zone. There is an exception and that is that the competent authority can after a special appeal permit certain other uses (page 48 of Master Plan). There is no plea that the competent authority had permitted the respondents to use the premises as a club."
(Emphasis Supplied)
24. The Hon'ble Division Bench has clearly held that even if an activity was permissible in a particular area it would not mean that a person is permitted to carry out the same from his residential premises. The subsequent judgment of the Hon'ble High Court which is a Division Bench judgment in the opinion of this court would hold the field and the judgment in the case of O.N. Gupta Vs. DDA would no longer be good law.
25. Further, Clause II (13) of the lease deed executed between the parties provided prohibited carrying out of any commercial activity from the leased premises. Clause II (13) of the lease deed reads as under:-
"(13) The Lessee shall not without the written consent of the Lessor carry on, or permit to be carried on the residential plot or in any building thereon any trade or business whatsoever or use the same or permit the same to be used to any purpose other than that of private dwelling or do or suffer to be done therein any act or thing whatsoever which in the opinion of the Lessor may be a nuisance, annoyance or disturbance to the Lessor and persons living in the neighbourhood."
26. A bare perusal of the same reveals that any kind of trade or commercial RCA No. 51/08 Page no. 12 of 17 activity from the premises was prohibited. In the opinion of this court since the respondent has admitted to having used his premises for commercial purposes i.e. Type and Shorthand College, he would be liable for action for violation of terms of his lease as well as of Master Plan of Delhi.
27. The Hon'ble Supreme Court in the case of Kunhayammed v. State of Kerala reported in (2000) 6 SCC 359 has been pleased to hold that an order refusing spe- cial leave to appeal does not attract the doctrine of merger and that an order refus- ing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discre- tion so as to allow the appeal being filed. Unless and until special leave to appeal was granted by the Hon'ble Supreme Court, an order appealed against foes not merge in the order of the Hon'ble Supreme Court. In view of the said dictum, con- tention of the petitioner that in view of the dismissal of the special leave petition of the DDA against the judgement of the Hon'ble High Court in the case of ON Gupta V/s DDA has been approved by the Hon'ble Supreme Court and the same will hold the field has no substance.
28. Submission of counsel for respondent that since resolution no.249 dated 29.3.1967 was revoked only on 21.10.1988 vide resolution 105 by the DDA and therefore running of type and shorthand college was permissible within this period also has no merit. This is for the reason that the judgment of the Division Bench of RCA No. 51/08 Page no. 13 of 17 Hon'ble High Court was rendered on 15.7.1983 and on and from 15.7.1983 the ratio and law as declared by the Hon'ble High Court would bind not only the DDA but as well as the citizens of Delhi. Merely because the DDA revoked its resolution dated 29.3.1967 on 21.10.1988, the same would not tantamount to mean that running of a type and shorthand college was permitted from residential premises. The judgment of Hon'ble High Court of Delhi nullified the effect of the resolution dated 29.3.1967 on and from the 15.7.1983.
29. Reliance placed by the Counsel for the respondent on entries 087 and 092 in the Master Plan for Delhi 2001 is misplaced for the reason that the said entries only define Vocational Training Institute Commercial and Secretarial Training Centre. The same do not provide that such activities can be rune from a residential property.
30. However, submission of counsel for respondent that since more than 12 years was taken by DDA to decide / dispose of his replies to the show cause notices of 1988 in the year 2001 and that principles of natural justice were violated has merit. This is for the reason that Counsel for DDA had submitted that policy of DDA for conversion property from lease hold to free hold had changed and that instances of misuser of residential premises found during consideration of application for conversion were being compounded by the DDA by levying of misuser charges. It seems that changed policy was taken into consideration by the RCA No. 51/08 Page no. 14 of 17 DDA while processing the case of plaintiff for converting the lease into free hold. In the case of Ossein and Gelatine Manufacturers' Assn. v. Modi Alkalies and Chemicals Ltd. reported in (1989) 4 SCC 264 the Hon'ble Supreme Court was pleased to observe as under:
"5. On the issue of natural justice, we are satisfied that no prejudice has been caused to the appellant by any of the circumstances pointed out by the appellant. It is true that the order has been passed by an officer different from the one who heard the parties. However, the proceedings were not in the nature of formal judicial hearings. They were in the nature of meetings and full minutes were recorded of all the points discussed at each meeting. It has not been brought to our notice that any salient point urged by the petitioners has been missed. On the contrary, the order itself summarises and deals with all the important objections of the petitioners. This circumstance has not, therefore, caused any prejudice to the petitioners. The delay in the passing of the order also does not, in the above circumstances, vitiate the order in the absence of any suggestion that there has been a change of circumstances in the interregnum brought to the notice of the authorities or that the authority passing the order has forgotten to deal with any particular aspect by reason of such delay. The argument that the application of the Modis had referred to bonemeal as the raw material used and this was later changed to "crushed bones" is pointless because it is not disputed that all along the petitioners were aware that the reference to bonemeal was incorrect and that the Modis were going to use crushed bones in their project. The last contention that some documents were produced at the hearing by the Modis which the RCA No. 51/08 Page no. 15 of 17 petitioners could not deal with effectively is also without force as, admittedly, the assessee's representatives were shown those documents but did not seek any time for considering them and countering their effect. There has, therefore, been, in fact, no prejudice to the petitioners. They have had a fair hearing and the government's decision has been reached after considering all the pros and cons. We are unable to find any ground to interfere therewith."
(Emphasis supplied)
31. In the above mentioned case the Hon'ble Supreme Court has been pleased to hold that where there was delay in the passing of an order and there are change in circumstances during this period or where decision has been taken without considering a particular aspect, principles of natural justice would stand violated. Hence in the present matter, since the DDA failed to take into account its own policy of levying misuser charges instead of cancelling the lease, the order dt.7.3.2001 cancelling the lease stood vitiated and is liable to be set aside on that account.
32. For the reasons recorded, above findings of the Ld. Trial Court in the impugned order dated 25.1.2007 that running of type and shorthand college was a permissible activity in terms of judgment in the case of O.N. Gupta Vs. DDA cannot be sustained in view of the judgment of the Hon'ble High Court Division Bench in case of DDA Vs. National Tonnage Club of Farmers and is hereby set aside.
RCA No. 51/08 Page no. 16 of 17
33. However since more than 12 years had passed between the date of show cause notice and cancellation of lease by the DDA on 7.3.2001 and DDA had DDA failed to take into account its own policy of levying misuser charges instead of canceling the lease, the order dt.7.3.2001 canceling the lease stood vitiated and is set aside. The DDA is restrained from taking any action against the plaintiff on the basis of the order dt.7.3.2001. Appellant DDA is further directed to consider the application of the plaintiff for conversion of lease of premises bearing plot no.246, Block C-9, Yamuna Vihar in Ghonda from lease hold to free hold in the light of its policy regarding compounding of misuser of premises by levying misuser charges in accordance with law.
34. Appeal is disposed of with the said directions. Decree sheet be prepared accordingly.
35. A copy of this order along with TCR be sent back to the Ld. Trial Court.
36. File be consigned to Record Room.
Announced and Dictated to the Steno in Open Court today i.e. 27.04.2011 (REETESH SINGH) Addl. Distt. Judge-01 (NE) Karkardooma Courts, Delhi RCA No. 51/08 Page no. 17 of 17