Delhi District Court
Ms. Uma Khanna vs . Delhi Development Authority, on 8 December, 2014
IN THE COURT OF SH. PRASHANT KUMAR,
ADJ04 (NW), ROHINI DISTRICT COURTS, DELHI.
CS No. 339/14
Ms. Uma Khanna Vs. Delhi Development Authority,
Ms. Uma Khanna,
W/o Late Sh. Ramesh Chand Khanna,
B195, PhaseI, Ashok Vihar,
New Delhi110052. ................. Plaintiff
Vs.
Delhi Development Authority,
Through its Vice Chairman,
Vikas Sadan, INA, Delhi ................Defendant.
Date of Institution of the case : 01.05.2008
Date of hearing the arguments : 28.11.2014
Date of announcing the Judgment : 08.12.2014
J U D G M E N T
1. By this Judgment, I shall pronounce the final Judgment in this case.
2. Brief facts of the suit filed by the plaintiff are as under:
Husband of the plaintiff namely Sh. Ramesh Chander Khanna had purchased a plot bearing no. 11, Community Centre, Ashok Vihar, Phase II, Delhi (hereinafter referred as suit property in question) in open auction on 28.05.1971 and lease deed was registered on 26.02.1974 and CS No. 339/14 Page No. 1/24 Smt. Uma Khanna Vs. DDA subsequently the suit property in question was got constructed after approval of plans. It is further stated that in the year 1983, the defendant sought to cancel the lease on the ground that suit property in question has been let out to several tenants who were carrying out commercial activities, without the knowledge and consent of husband of the plaintiff. It is further stated that the notice sent by DDA was replied by husband of the plaintiff wherein he denied the allegations of misuse of the suit property in question and filed a suit for injunction before Hon'ble High Court of Delhi wherein the defendant was restrained from canceling the lease deed and reentering upon the suit property in question. It is further stated that the basement of the suit property in question was rented out in four portions wherein one portion was being used by Smt. Bhagwati for storage of electrical goods, one portion was being used by Ashok Kumar for storage of ready made kurta pajamas, one portion was being used as godown by Dr. Raj Rani and one portion was being used as godown by Mrs. Usha Rani. It is further stated that subsequently, the plaintiff's deceased husband immediately by way of abundant precaution, filed proceedings against the tenants in the basement in response to which the tenant in "portion A" submitted a statement stating that he is using the portion for storage of video cassettes and not for hiring to individuals as for that purpose they had another shop. The tenant in "portion B" surrendered the possession of the premises in CS No. 339/14 Page No. 2/24 Smt. Uma Khanna Vs. DDA question, the tenant in "portion C" contested the matter with the husband of plaintiff untill he was directed by the trial court to stop misuse of the premises in question and the tenant in "portion D" were using the premises for godown only so there was no misuse on the part of any of the tenants. It is further stated that the misuse, if any, was being carried out by the respective tenants without knowledge of the deceased husband of the plaintiff as in the lease/ rent deed executed, it had specifically been mentioned that the portions in the basement were being let out for the purpose of godown/ storage in accordance with law. It is further stated that the defendant thereafter restored the lease in favour of the deceased husband of the plaintiff vide its letter dated 13.01.2000 subject to the following conditions i.e. to withdraw the court case, pay restoration charges amounting to Rs. 29,726/, pay ground rent upto date, which was immediately done by them.
It is further stated that subsequently, after four years of restoration of lease, the defendant vide letter dated 21.12.2004 sought to levy misuse charges amounting to Rs. 26,63,460/ . It is further stated that husband of the plaintiff moved an application under the Right to Information Act to know the basis for alleged misuse charges and upon repeated follow ups and explanations provided by deceased husband of the plaintiff, the defendant vide letter dated 08.07.2007, reduced the demand for misuse CS No. 339/14 Page No. 3/24 Smt. Uma Khanna Vs. DDA charges from Rs. 26,63,460/ to Rs. 17,52,733/. It is further stated that the fresh calculations submitted by DDA were still not justified and were erroneous. It is further stated that on 28.05.2007, husband of plaintiff died and all other LRs of deceased gave NOC in favour of plaintiff and she applied for mutation of the premises in her favour, however, the defendant is not processing the mutation till payment of illegal and baseless misuse charges are paid. It is further stated that a legal notice dated 24.03.2009 was also served upon the defendant calling upon to withdraw/ revoke the illegal demand of misuse charges and also to effect the mutation in favour of the plaintiff in respect of the suit property in question. However, despite receipt of notice and repeated reminders, the defendant and its officers failed to do the needful.
3. In the WS, it has been stated by the defendant that the suit filed by the plaintiff is time barred, without any cause of action and has been filed after a delay for more than 21 years and it has been filed without mandatory notice u/s 53B to the DDA. It has been further stated that after inspection of the site by the field staff, show cause notices dated 04.06.1983 and 07.06.1983 were issued to the exlessee to the effect that the suit property in question is being misused as shop. It is further stated that he letters were replied by exlessee but the reply was not satisfactory. Thereafter, the exlessee was again asked to remove the misuse of the suit CS No. 339/14 Page No. 4/24 Smt. Uma Khanna Vs. DDA property in question vide letter dated 09.03.1984 and ultimately final notice were issued on 03.08.1984 and 17.08.1988. These notices were served and duly replied by the exlessee. It is further stated that the suit property in question was also inspected on 08.05.1985 and misuse thereof was detected and exlessee was issued a letter dated 02.07.1985 to remove the same within 15 days and the said letter was replied by the lessee vide letter dated 24.07.1985, however, the misuse was never removed. It is further stated that the final notice was issued on 17.08.1988 wherein ex lessee replied that he has taken the legal action against the said tenants who were misusing the premises. It is further stated that on submission the lease deed of the plot was determined by Hon'ble LG vide order dated 02.08.1989. It has been further alleged that the calculations of misuse charges has been in accordance with law and is totally justified.
4. After the pleadings were completed, following issues were framed vide order dated 20.01.2011.
(i) Whether the suit is not maintainable for want of notice u/s 53 (b) of DDA Act as alleged in preliminary objection no. 3 in WS? OPD.
(ii) Whether the suit is barred by time? OPD.
(iii) Whether plaintiff is entitled to decree of declaration as prayed? OPP.
(iv) Whether the plaintiff is entitled to decree of permanent injunction as prayed? OPP.
CS No. 339/14 Page No. 5/24 Smt. Uma Khanna Vs. DDA
(v) Whether the plaintiff is entitled to decree of mandatory injunction as prayed? OPP.
(vi) Relief.
5. Before proceeding further, It is pertinent to mention here that plaintiff has examined one witness in PE and one witnesses have been examined on behalf of the defendants.
6. My issue wise findings are as under:
Issue No. 1: Whether the suit is not maintainable for want of notice u/s 53 (B) of DDA Act as alleged in preliminary objection no. 3 in WS? OPD.
Onus of this issue is upon the defendant. The objection taken by the defendant is that the mandatory notice under section 53 (B) as per act has not been given. Record is perused. Plaintiff has given a legal notice dated 24.03.2009. This legal notice is perused throughly. It is a matter of record that nowhere in the said notice, it has been mentioned that it is given under section 53 (B) of the Act. The object of giving notice under the section is that DDA should be informed in advance that legal proceedings are being initiated against it and opportunity is also given to the DDA to take the steps accordingly so that no need arises for filing any such suit. It is further pertinent to mention here that technicalities of Law should not come in the way of justice and mere not mentioning the notice under section 53 (B) in the nomenclature or title of the legal notice dated 24.03.2009 should not be CS No. 339/14 Page No. 6/24 Smt. Uma Khanna Vs. DDA considered so detrimental that plaintiff is deprived of her legal right for which she has approached the court and had conducted the entire trial which had taken about five year to conclude. The object, however, has been fulfilled that DDA has been made aware about the proposed action so taken by the plaintiff. Therefore, after considering the pith and substance of the legal notice dated 24.03.2009, I am of the considered opinion that plaintiff has complied with the mandate of section 53 (B) of the Act impliedly. In terms of these observations, this issue is decided in favour of the plaintiff.
Issue no. 2: Whether the suit is barred by time? OPD.
Onus of this issue is upon defendant. Plaintiff has filed the suit for declaration, permanent and mandatory injunction. The limitation period for filing such suit is three years from the date of cause of action. This suit has been filed on 01.05.2009 which is a matter of record. The impugned demand for misuse charges of Rs. 17,52,733/ is vide letter dated 08.07.2007. The cause of action in such case, therefore, starts from the demand of alleged misuse charges of Rs. 17,52,733/. The suit filed by the plaintiff is apparently within the period of limitation. Hence, this issue is decided in favour of the plaintiff.
Issue No. 3: Whether the plaintiff is entitled to decree of declaration as prayed? OPP.
CS No. 339/14 Page No. 7/24 Smt. Uma Khanna Vs. DDA Onus of this issue is upon the plaintiff. The plaintiff?PW1 has stated that her deceased husband Ramesh Chander had purchased the suit property in question in auction on 28.05.1971 and lease deed was registered on 26.02.1974. The premises was constructed after approval of plans. The detailed floor wise plan of the suit premises is annexed as Ex. PW1/1. It is further stated that in the year 1983, defendant sought to cancel the lease of the premises on the plea that the premises had been let out to several tenants in the basement who were carrying out commercial activities without the knowledge and consent of the plaintiff's deceased husband. Husband of the plaintiff responded to the notice of defendant stating that there was no misuse, however, the defendant finally ordered for determining the lease and called upon the husband of plaintiff to hand over the possession of plot. Plaintiff's deceased husband thereafter filed a suit for injunction bearing no. 2525 of 1989 before Hon'ble High Court of Delhi whereby DDA was restrained from canceling the lease and re entering upon the suit property in question. Copy of the interim order dated 21.09.1989 is Ex. PW1/2. The details of the tenants have been given in para no. 5 of the affidavit. The copy of rent agreement are Ex. PW1/3 (Colly). Subsequently, the plaintiff's deceased husband for abandoned precaution filed proceedings against the tenants in the basement. Copies of the orders passed by court in those proceedings are Ex. PW1/4 (colly). It CS No. 339/14 Page No. 8/24 Smt. Uma Khanna Vs. DDA is further stated that in those proceedings filed against tenants, tenant in "portion A" submitted a statement stating that he is using the portion for storage of video cassettes and not for hiring to individuals as for that purpose they had another shop. The tenant in "portion B" surrendered the possession of the premises in question, the tenant in "portion C" contested the matter with the husband of plaintiff untill he was directed by the trial court to stop misuse of the premises in question and the tenant in "portion D" were using the premises for godown only so there was no misuse on the part of any of the tenants. It is further stated that the misuse, if any, was being carried out by the respective tenant without the knowledge of the deceased husband of the plaintiff. The purpose of letting out was mentioned in the lease deed which was in accordance with the byelaws of MCD and DDA. Deceased husband of the plaintiff had taken effective steps to ensure stoppage of alleged misuse at the earliest which was also stopped upon the proceedings initiated by the husband of the plaintiff. The defendant was, therefore, directed to restore the lease in favour of deceased husband of the plaintiff and in pursuant to it, defendant vide letter dated 13.01.2000 called upon the deceased husband of the plaintiff to withdraw the court cases first, then pay restoration charges amounting to Rs. 29,726/, pay ground rent upto date which was done by the deceased husband of the plaintiff immediately. Copy of the letter dated 13.01.2000 CS No. 339/14 Page No. 9/24 Smt. Uma Khanna Vs. DDA sent by defendant is Ex. PW1/5. Subsequently, defendant without giving any opportunity of hearing to the owner or any adjudication, sought to levy misuse charged amounting to Rs. 26,63,460/ which were illegal and were sought after more than four years of restoration of lease. The tenants who has allegedly misused the premises had since left and their whereabouts were not known. The copy of the letter dated 21.12.2004 is Ex. PW1/6. This is the first time when misuse charges for the period 04.06.1983 to 05.09.1997 were quantified by the defendant and informed to the plaintiff's deceased husband. Deceased husband of the plaintiff filed and RTI and came to know that misuse charges were based upon the fact that suit premises was let out to several tenants in the basement who were carrying out commercial activities which was, however, without the knowledge and consent of the deceased husband of the plaintiff. Copy of RTI filed by the plaintiff is Ex. PW1/7. It is further stated that at the request of the plaintiff, defendant reduced its demand of misuse charges to Rs. 17,52,733/ vide its letter dated 08.07.2007 which is Ex. PW1/9. It is stated that demand of misuse charges is illegal and without any basis. Deceased husband of the plaintiff has sent several representations and filed RTIs with the defendant, however, they have provided a calculations sheet in respect of demand of Rs. 17,52,733/ in respect of misuse charges which is Ex. PW1/10. Husband of plaintiff expired on 28.05.2007 and thereafter, all other legal CS No. 339/14 Page No. 10/24 Smt. Uma Khanna Vs. DDA heirs gave NOC in favour of their mother i.e. the plaintiff on the basis of which the plaintiff had applied with the defendant for mutation of the premises in her favour vide letter dated 03.04.2008 which is Ex. PW1/11. It is stated that defendant has not been processing the case of mutation till payment of illegal and baseless misuse charges are made by the plaintiff. Defendant vide its letter dated 08.08.2008 had raised a demand of ground rent and interest amounting to Rs. 8733.25/ upto the period 14.01.2009 which was duly paid by the plaintiff on 09.02.2009. Copy of demand dated 08.08.2008 raised by defendant is Ex. PW1/12 and receipt of payment made by plaintiff is Ex. PW1/13, the legal notice given by the plaintiff is Ex. PW1/14 which is dated 24.03.2009. Plaintiff has been suffering from various old age diseases. It is further stated that the defendant vide its letter dated 09.04.2009 have called upon the plaintiff to deposit the misuse charges amounting to Rs. 17,52,733/ within 20 days or else the restoration of the premises would not be allowed and defendant ie. DDA would take back the suit premises with due process of law. The copy of the letter dated 09.04.2009 sent by DDA is Ex. PW1/16.
During her cross examination, no material contradiction have emerged and the plaintiff has corroborated what she has stated in her examination in chief.
Defendant, on the other hand, has examined Surender Kumar as CS No. 339/14 Page No. 11/24 Smt. Uma Khanna Vs. DDA DW1 who has stated that as per record inspection report of misuse charges dated 19.01.1984 has been filed. Thereafter, on 07.04.1984, Ramesh Chand Khanna represented a letter in which name of a tenant Usha Rani was mentioned. The documents pertaining to misuse charges, unauthorized use of suit property in question are Ex. DW1/1 (Colly). It is further stated that a show cause notice was issued on 14.08.1984. Inspection was carried on thereafter on 17.12.1984. Ramesh Chand Khanna again represented that there was a doctor clinic in the basement and shops at ground floor, however, the report of field staff of DDA was different, hence, again an inspection was carried out on 08.05.1985 and it was found that there is a basement under which there are tailoring shop, doctor clinic, video library, one shop as store, ground floor shops, mezzanine floor storage of books. Misuse was created at mezzanine floor by running an office. It is further stated that Ramesh Chand Khanna again represented to DDA vide letter dated 08.07.1985 for removal of misuse and again a letter was sent to Ramesh Chand Khanna to remove the misuse and his representation had no merits. Ramesh Chand Khanna always represented with the request that site inspection be carried out and at his request, on 19.04.1988, inspection was carried out again and it was found that there was a clinic of a doctor namely Dr. K. Jain, a video shop, sunshine kurta pajama, Veer electricals, mezzanine floor for book CS No. 339/14 Page No. 12/24 Smt. Uma Khanna Vs. DDA publishing work, ground floor different shops etc. It is further alleged that recent inspection of building dated 02.05.1988 shows that misuse of basement and mezzanine floor was not removed. Ramesh Chand Khanna had given a legal notice to DDA that they are taking action against the tenant and due to this malafide representation, DDA did not take coercive action against him. Due to misuse in the basement show cause notice dated 04.06.1983 and 07.06.1983 was issued. The reply so given by the plaintiff's husband was not satisfactory and finally a notice dated 12.08.1988 was given since the misuse was not removed and the lease deed of the plot was determined by Hon'ble L.G. on 02.08.1989. It is further stated that a Civil suit was filed before Hon'ble High Court of Delhi against DDA. On 11.03.1997, the case was referred to Hon'ble LG, Delhi to restore the lease deed in respect of this plot subject to unconditional withdrawal of court case and payment of restoration charges of lease deed. A circular dated 28.08.1996 regarding the restoration policy states that Rs. 200/ per sq. meter would be charged for restoration. Ramesh Chand Khanna again represented to DDA vide letter dated 25.10.1999 and undertook not to repeat the misuse in future. The restoration of lease was approved by Hon'ble LG on 30.12.1999 subject to withdrawal of court case, payment of restoration charges @ Rs. 200 per sq. meter, recovery of upto date ground rent and payment of misuse and damage charges. A letter dated CS No. 339/14 Page No. 13/24 Smt. Uma Khanna Vs. DDA 13.01.2000 was issued in this regard. Rates at the time of misuse were taken into account of L & DO for the period from 04.06.1983 to 31.03.1989 @ Rs. 6000/ per sq. meter and w.e.f. 01.04.1989 to 31.03.1991 @ Rs. 10,500/ per sq. meter of Kamla Nagar as compared to the area of Wazir Pur. Thereafter, rates were taken into account w.e.f. 01.04.1991 to 05.09.1997 of Committee rate of Wazir Pur. It is further alleged that since injunction against misuse was granted by court on 25.02.1991, DDA can not levy misuse charges after this date, hence, the amount was reduced to Rs. 17,52,733/ which has been approved by the competent authority. It is stated that there is no policy in DDA to recover the misuse charges on periodical basis. Charges are in the nature of penalty and misuse is a ground for determination of lease. Therefore, in case where lease is determined then DDA recovers the past misuse charges being one of the condition for restoration of the lease. It is further stated that misuse charges are also recovered when property is converted from lease hold to free hold as per the conversion policy of Government of India.
In his cross examination, it is stated by DW1 that inspections were done four to five times. DW1 could not tell the exact period till which DDA had levied misuse charges. It is further stated by DW that in the inspection report which is Ex. DW1/2 there was no mention of misuse and it was mentioned that entire basement is used for storage only. DW1 has also CS No. 339/14 Page No. 14/24 Smt. Uma Khanna Vs. DDA expressed his ignorance that the doctor clinic had stopped running at the suit property. Witness has also expressed his ignorance regarding the period for which DDA had levied misuse charges in this case. During cross examination, DW was asked specific question that document Ex. DW1/2 at page no. 4 & 13 has mentioned that there was no misuse and the entire basement was used for storage only for which witness stated that it was a matter of record. DW further admitted that lessee had informed DDA through his application that as he became aware by DDA about misuse, he gave notices and thereafter, initiated proceedings against his tenants for stopping misuse, if any. DW1 also admitted that above stated fact was mentioned in document Ex. DW1/2 that DDA was aware of the proceedings initiated by lessee. DW also expressed his ignorance regarding the formula or basis for calculating the misuse by DDA. In this regard, DW stated that it was done by accounts department, hence, he was not aware. DW1 further stated that he was not part of any inspection conducted at the site.
It has been reflected from the examination of PW and DW that the alleged inspection had taken place which is not a proper inspection as per rules and procedures which is reflected from the documents filed by the defendant themselves. It is also reflected that DDA had issued notice for the alleged misuse, to the plaintiff, on the basis of report dated 19.01.1984. CS No. 339/14 Page No. 15/24 Smt. Uma Khanna Vs. DDA Show cause notice has been given on 14.08.1984. Thus, the alleged misuse, if any, are pertaining to the year 1984 itself. It is also reflected from the record that the demand for the alleged misuse charges has been made on behalf of the DDA vide letter dated 21.12.2004 for the first time. It is also reflected from the evidence of the parties that Late husband of the plaintiff had initiated the proceedings against his respective tenants for the alleged misuse, if any. During final arguments, counsel for the plaintiff has drawn attention towards the Judgment titled as, Professor Ram Prakash Vs. DDA, 2007, Rajdhani Law Reporter, 566(Delhi High Court).
Counsel for the plaintiff has heavily relied upon this judgment under which Mr. Justice Dr. S. Murlidhar has stated that "the demand of misuse charges in respect of the community center was made vide letter dated 20.05.2004 for the period upto 05.02.2003. In this case, the property in question was purchased in joint names of petitioner's mother Smt. Savitri, his wife Smt. Kamla and petitioner in an open auction held by DDA on 10.08.1969. The possession of plot was given to the purchaser on 05.03.1972 and lease deed was executed on 05.04.1972. DDA also stopped the proceedings of mutation with regard to suit property in question. In this case, DDA has stated that various show cause notices were given and it was alleged that the demand was for the period 07.09.1992 to 13.01.2003, 20.06.1990 till 05.02.2003 and 30.07.1983 to 05.02.2003. in this CS No. 339/14 Page No. 16/24 Smt. Uma Khanna Vs. DDA case, it was held that collection of fines and penalties have to be done within a reasonable time, if no outer limit for such recovery is specifically mentioned. There can not be an open ended time framed for recovery of misuse charges.
If the DDA wants to avoid the loss it might suffer from the failure of its official to act within a reasonable time, it requires to put its house in order and ensure that the necessary corrective action, in the event of a misuse, and the consequential action after the stoppage of such misuse is taken promptly. The court held that demand for misuse was unsustainable which was not made within reasonable time. In this case, there were tenants in the premises in question which were considered as using the property unauthorizedly and the petitioner had taken steps against them. This fact was duly considered by the court and it was further held that the lessee could not be penalized for such violation as long as he took prompt action to stop the misuse."
Judgment of Professor Ram Prakash was given by a single judge which was referred to a Higher bench at the instance of DDA and the order passed by Hon'ble Mr. Justice Dr. S. Murlidhar J., dated 17.08.2007 has been upheld.
Counsel for the defendant has stated that DDA was taking prompt action throughout the entire proceedings since 1984 till 2004 and as there CS No. 339/14 Page No. 17/24 Smt. Uma Khanna Vs. DDA were various communication in between the parties by way of letters and the connected case was filed before Hon'ble High Court of Delhi due to which demand could not be made prior to 2004. Counsel for plaintiff, on the other hand, has stated that it was directed by Hon'ble High Court of Delhi in a petition filed before it that the case of plaintiff herein be considered and DDA was directed to restore the lease in favour of the deceased husband of the plaintiff and the matter was withdrawn thereafter. It is further stated during final arguments on behalf of the plaintiff that after the withdrawal of the case filed before Hon'ble High Court of Delhi, Hon'ble LG has passed the relevant order imposing certain conditions and DDA has further levied the alleged misuse charges despite the specific directions of Hon'ble High Court of Delhi. Record is perused again. One document Ex. PW1/5 which is a letter dated 13.01.2000 is relevant to mention here which has been issued by Asst. Director, DDA to Ramesh Chand Khanna under which he has stated on behalf of Hon'ble LG that the lease in respect of suit property in question was restored subject to following conditions:
(i) withdrawal of court case, if any, unconditionally.
(ii) payment of restoration charges @ Rs. 200/ per square meter i.e. Rs.
29728/
(iii) Payment of ground rent up to date.
(iv) payment of misuse and damage charges of basement. CS No. 339/14 Page No. 18/24 Smt. Uma Khanna Vs. DDA Plaintiff has stated that he withdrew the cases filed before Hon'ble High Court of Delhi and paid the charges of Rs. 29,728/, however, has further stated that the demand of alleged misuse charges are unreasonable.
DA Plaintiff has relied upon judgment titled as, D Vs. Ram Prakash, AIR, 2011, Supreme Court, 1399 wherein it has been held that claim for misuse charges set up after lapse of 25 years are inequitable & unjustifiable.
Defendant, on the other hand, has also relied upon following judgments:
(I) Vijay Kumar Rajput Vs. New Delhi Municipal Counsel & Anr.,117 (2005) Delhi Law Times 216, Delhi High Court.
(ii) Goyal Industries Corporation & Ors. Vs. Delhi Development Authority, 2004 IV AD (Delhi) 316, dated of decision 28.11.2003.
(iii) Suresh Sharma & Ors. Vs. M/s Stein Doshi & Bhalla, 2002 II AD (DELHI) 189.
(iv) Munshi Ram & Anr. Vs. Union Of India & Others, (2000) 7 Supreme Court Cases 22.
The fact and circumstances of the present case are peculiar in nature. Hence, none of the judgments relied upon by the defendant are applicable in the present case.
From the perusal of the above mentioned facts and circumstances, it is reflected that the judgment of Professor Ram Prakash (supra) is equably applicable in the present facts and circumstances. All these facts regarding CS No. 339/14 Page No. 19/24 Smt. Uma Khanna Vs. DDA application for mutation, demand for misuse charges, existence of tenants against whom proceedings have been initiated, are also existing in the judgment of Professor Ram Prakash (Supra). In these circumstances, therefore, as no specific time frame has been provided for the demand of alleged misuse, however, such demand has to be within reasonable time and there can not be an open end time frame for the said demand of alleged misuse. In these circumstances, if the submissions made by DDA are presumed to be correct, even then, the alleged misuse pertains to and starts from the year 1994 for which the demand for the first time has been raised in the year 2004. It is also reflected from the record itself that Hon'ble High Court of Delhi vide order dated 21.09.1989, in another pending litigation in between the parties pertaining to the same suit property in question had directed to restore the lease which was restored accordingly thereafter. However, no such demand was ever made by the DDA till 2004. In these circumstances, I am of the considered opinion that such a demand raised by DDA is unreasonable. Hence, this issue no. 3 is decided in favour of plaintiff and plaintiff is entitled for declaration that demand of Rs. 17,52,733/ is unjustified.
Issue No. 4: Whether plaintiff is entitled to decree of permanent injunction as prayed? OPP.
Onus of this issue is upon plaintiff. Plaintiff has discharged the CS No. 339/14 Page No. 20/24 Smt. Uma Khanna Vs. DDA burden of proving the issue no. 3 upon her and has shown by way of evidence that defendant, its officials etc. have been taking actions in respect of cancellation of lease of premises on the basis of demand for alleged misuse. Such misuse charges have been shown by the plaintiff as unreasonable. Therefore, any action flowing therefrom is also unreasonable. Hence, plaintiff is entitled for the relief of permanent injunction. Hence, this issue is decided in favour of the plaintiff. Issue No. 5: Whether plaintiff is entitled to decree of mandatory injunction as prayed? OPP.
Onus of this issue is upon plaintiff. Plaintiff has stated that she had applied for mutation of the premises which has been withheld by the officials of DDA. The plaintiff has shown by way of evidence, which is reflected from the outcome of issue no. 3 that the demand of alleged misuse charges is unreasonable. Ownership of plaintiff is not disputed, therefore, as per law as nothing else besides the alleged demand is raised in the present matter against the title of plaintiff and as no other legal right of the plaintiff has been challenged or questioned by the DDA, therefore, she can not be deprived of her lawful right of seeking the order of mutation in her favour. Therefore, this issue is also decided in favour of the plaintiff. Relief: In the light of above discussion, it is reflected that the plaintiff has been able to discharge the burden of proving all the issued in her favour. CS No. 339/14 Page No. 21/24 Smt. Uma Khanna Vs. DDA Therefore, she is entitled for the relief so prayed. Accordingly, plaintiff is entitled for the declaration thereby declaring the demand of Rs. 17,52,733/ on account of misuse charges is unjustified, hence, she is not liable to pay. Plaintiff is also entitled for the decree of permanent injunction restraining the defendants, its officials, agents, etc. for taking any action in respect of the cancellation of the lease of suit property in question or taking over possession of the suit property in question or doing any act in order to restrain the peaceful enjoyment of the property by the plaintiff. Plaintiff is also entitled for the decree of mandatory injunction directing the defendant to effect the mutation of the suit property in question in favour of the plaintiff in pursuant to her application dated 03.04.2008. Cost of the suit is also awarded.
7. Decree sheet be prepared accordingly.
8. Case file be consigned to record room after completion of all necessary formality.
Announced & dictated in the (Prashant Kumar)
open court today i.e. on 08.12.2014 ADJ04(NW)/Rohini Courts
Delhi/08.12.2014
CS No. 339/14 Page No. 22/24
Smt. Uma Khanna Vs. DDA
IN THE COURT OF SH. PRASHANT KUMAR , ADJ4 (NORTHWEST) ROOM NO.212, ROHINI COURTS, DELHI.
DECREE CS No. 339/14 Ms. Uma Khanna Vs. Delhi Development Authority, Ms. Uma Khanna, W/o Late Sh. Ramesh Chand Khanna, B195, PhaseI, Ashok Vihar, New Delhi110052. ................. Plaintiff Vs. Delhi Development Authority, Through its Vice Chairman, Vikas Sadan, INA, Delhi ................Defendant. Plaint presented on 0f1.05.2008 Claim for : Suit for recovery.
This suit coming for final judgment on 08.12.2014 in presence of parties and their respective counsels. The plaintiff is entitled for the declaration thereby declaring the demand of Rs. 17,52,733/ on account of misuse charges is unjustified, hence, she is not liable to pay. Plaintiff is also entitled for the decree of permanent injunction restraining the defendants, its officials, agents, etc. for taking any action in respect of the cancellation of the lease of suit property in question or taking over possession of the suit property in question or doing any act in order to restrain the peaceful enjoyment of the property by the plaintiff. Plaintiff is also entitled for the decree of mandatory injunction directing the defendant to effect the mutation of the suit property in question in favour of the plaintiff in pursuant to her application dated 03.04.2008. Cost of the suit is also awarded.
COST OF SUIT
PLAINTIFF DEFENDANT
S.No Particulars Amt. S.No. Particulars Amt.
1 Stamp for plaint Rs.19,500/ 1 Stamp for plaint Nil
2 Stamp for power Nil. 2 Stamp for power Nil
3 Process Fee. Nil. 3 Process Fee Nil
4 Miscellaneous Rs. 2/ 4 Miscellaneous Nil
CS No. 339/14 Page No. 23/24
Smt. Uma Khanna Vs. DDA
TOTAL Rs. 19502/ TOTAL Nil
Given under my hand and the seal of this Court on 08.12.2014. SEAL (PRASHANT KUMAR) ADJ4 (N/W) Rohini Courts CS No. 339/14 Page No. 24/24 Smt. Uma Khanna Vs. DDA