Delhi High Court
Garden View Meadows P. Ltd. vs Land And Development Officer And A on 11 November, 2005
Equivalent citations: 124(2005)DLT710, 2005(85)DRJ428, AIR 2006 (NOC) 188 (DELHI)
Author: Vikramajit Sen
Bench: Vikramajit Sen
JUDGMENT Vikramajit Sen, J.
Page 2335
1. The facts of the case are that the Petitioner had purchased property bearing No.48, Hanuman Road, New Delhi. He had applied for the conversion of the said property into 'freehold' in consonance with the prevailing Policy of the Respondent. In that connection a sum of Rs.97,02,000/- has already been paid to the L & DO as the demanded Conversion Charges.
2. It appears that the erstwhile Tenant had been misusing the property. Misuse Charges were computed by the L & DO for a sum of Rs.38,92,994/-. That Demand had been challenged in CWP No.796/1995 and the assault had been accepted in terms of the Judgment dated 30.9.1996. It had been held that the Respondents were entitled only to recovery of one per cent as a token penalty under Clause 8 of the Office Order No.23/76 dated 31.3.1976. The Respondents have filed a Letters Patent Appeal against the aforementioned Judgment dated 30.9.1996. Admittedly, a stay of the impugned Judgment has not been granted.
3. Mr. Mridul, learned counsel appearing for the Respondent, submits that it is not Clause 8 alone which is relevant but also Clauses 9 and 10. He contends that in cases of misuse which are governed by Clause 8, instead of ten per cent penalty covered under Clause 10, only one per cent penalty would be recoverable together with misuse charges.
4. The subject tenancy is of 1923 vintage. At that time it was governed by the Delhi Rent Control Act which permitted eviction of a tenant only if anyone or more of the grounds under Section 14 had been established. It is common empirical knowledge that even where a tenant who had not let out premises for residential purposes only, used them for non-residential premises, the landlord Page 2336 would be in a helpless and hapless position. He would have to approach the Rent Controller for the abusing tenant's eviction. It is, therefore, clear that Clause 8 which permits the imposition and calculation of a token penalty of one per cent is both salutary and logical. The application of Clauses 9 and 10 would only arise in cases where the landlord prays for 'temporary change of use'. This is not what transpires in the present case. The predecessor-in-interest of the Petitioner had no option but to suffer his tenant whose eviction was only possible through Court. Quite apparently, these are the reasons which weighed in the mind of the learned Single Judge while restricting the landlord's liability to the token one per cent. It would not be appropriate for this Court to make any further reflections as the matter is sub- judice before the Division Bench.
5. So far as the adjudication presently stands, the Petitioner is liable only to pay a token penalty of one per cent. However, in order to free the property from the encumbrances and disabilities imposed by the Respondent, the Petitioner states that the misuse charges of Rs.38,92,994/- shall be deposited with the Registrar General of this Court within four weeks from today. This is without prejudice to the Petitioner's contention that the Petitioner is not liable to pay any amount in excess of the one per cent token penalty which has already been paid. On behalf of the L & DO Mr. Mridul submits that if interest is added to the misuse charges the amount recoverable would be Rs.67,71,453/-. He presses that it is this amount which should be ordered to be deposited. In response thereto learned counsel for the Petitioner relies on Office Order No.24/1993 dated 20.10.1993, Clause (ii) whereof stipulates that in cases where misuse charges/damages claimed earlier have not been paid by the lessee, such charges need not be reassessed/worked out or updated along with interest but instead the amount as per the demand raised earlier should be recovered before conversion is allowed. It is Mr. Malhotra's contention that only a sum of Rs.38,92,994/- had been demanded towards misuse charges, and that interest had been claimed consequent upon the Petitioner's application for conversion to freehold. Therefore, even in respect of the claim for interest there appears to be a prima facie defense. Be that as it may, learned counsel for the Petitioner states that an Undertaking will be filed by the Petitioner with the Registrar General of this Court whereby, if the Division Bench which is ceased of the LPA is of the view that any amount in excess of one per cent is due and chargeable from the Petitioner, the entire amount shall be paid within the time allowed by the Court.
6. It is in this background that the Writ Petition is allowed. The Petitioner is directed to deposit a sum of Rs.38,92,994/- with the Registrar General of this Court within four weeks from today. An Undertaking shall also be filed, to the satisfaction of the Registrar General, unequivocally undertaking to abide by the decision in LPA No.50/1999. The Petitioner shall also Undertake to inform any future purchasers of the property, of the obligations contained in the Undertaking. This will more than meet the ends of justice. On depositing of the aforementioned sum of money, and on the furnishing of the Undertaking, the L & DO shall pass appropriate orders for converting the property in question into freehold and execute the requisite Conveyance Deed. Writ Petition is allowed in these terms.