Delhi High Court - Orders
Om Parkash Kapoor Thru Lrs vs Delhi Development Authority And Ors on 28 September, 2022
Author: Sachin Datta
Bench: Sachin Datta
$~74
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5794/2015
OM PARKASH KAPOOR THRU LRs ..... Petitioners
Through: Mr. Harish Malhotra, Sr. Advocate
with Mr. Rajender Aggarwal and
Mr.Anoop Kumar, Advocates.
versus
DELHI DEVELOPMENT AUTHORITY AND ORS. .... Respondents
Through: Mr. Ashim Vachher, Standing
Counsel for DDA with Mr. Kunal
Lakra, Advocate.
CORAM:
HON'BLE MR. JUSTICE SACHIN DATTA
ORDER
% 28.09.2022
1. The present petition has been filed by the original petitioner, namely Sh. Om Prakash Kapoor seeking the following reliefs:
"a) The Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ or direction thereby directing the respondent to forthwith execute a lease deed in respect of plot No. 273, Fruit and Vegetable Market, Okhla Industrial Area, New Delhi, for general commercial purpose as per the Court direction and as approved in the resolution passed in the 208th meeting of the Screening Committee of the respondent held on 30.11.1999 as well as clarified in letter dated 25.01.2001.
b) Cost of the petition be allowed to the plaintiff."
2. The matter has a chequered history with two rounds of litigation having already taken place with regard to the property in question.
3. The instant petition was originally filed by Sh. Om Prakash Kapoor Signature Not Verified Digitally Signed By:ANU KAPOOR Signing Date:06.10.2022 13:19:05 (the original petitioner). The said Om Prakash Kapoor expired during the pendency of this petition whereupon his legal heirs were impleaded vide order dated 10.11.2017. The present petitioners relied upon the Will dated 08.02.2016 left behind by the original petitioner, whereby the property in question was bequeathed in favour of the present petitioners, and excluded the other legal heirs who have been impleaded as respondent nos.2 to 5.
4. Initially, for the purpose of conversion of the property bearing No. 273, Fruit and Vegetable Market, Okhla Industrial Area, New Delhi (hereinafter referred to as the 'said property') from cold storage to commercial office purpose, the original petitioner filed the writ petition, being W.P.(C) No. 2935/1987, which culminated in a judgment dated 05.02.1990, in which it was held as under:-
"Considering the facts and circumstances of the case and after hearing the parties, it appears to us that the suggestion given by Mr. Bhatia regarding the change of user in the manner as aforesaid would not violate the Zonal Plan. In this view of the matter we direct respondent No.1/Delhi Development Authority to allow the petitioner to change the user of the property from cold storage to office purpose to the extent of 70% and the remaining 30%, including basement, for storage. If, however, the petitioner is able to get licence for cold storage in future the petitioner will be allowed to use 30%, including basement, for the cold storage. For the purpose of effecting the aforesaid change, the petitioner would be liable to fulfil necessary formalities as also to pay the additional premium as determined by the D.D.A. on the basis of the extent of the change of the user of the property.
With these remarks the petition stands disposed of"
5. It is the admitted position of the respective counsel appearing for the parties that the directions contained in the order dated 05.02.1990 have Signature Not Verified Digitally Signed By:ANU KAPOOR Signing Date:06.10.2022 13:19:05 acquired finality, inasmuch as, the SLP filed by the DDA/respondent no.1 against the aforesaid order was dismissed vide order dated 07.09.1995. Thereafter, vide minutes of the 208th Screening Committee meeting held on 30.11.1999, a specific decision was taken with regard to the said property as under:-
"8. Item No. 77:99:208:SC: Modified scheme for proposed commercial plots on vacant land adjacent to fruit vegetable market Okhla and finalization of development controls/guide line/use of plot No. 273.
No. SA(SZ) 96/
The proposal was explained by Sr.
Architect (SZ). After detailed
discussion following decisions were
taken:-
i) The plot may be allowed as General
Commercial as per the Court‟s
direction.
ii) Other two plots No. 277 & 279 should
also be sold as General
Commercial."
6. Pursuant to the aforesaid decision, a letter dated 25.01.2001 came to be issued, wherein the original petitioner was informed as under:-
"With reference to your letter dated 21.6.2K on the subject noted above, I am directed to inform you that Competent Authority has already accepted the request for conversion of land use from Cold Storage to General Commercial and permitted uses are Guest House, Storage, Godown, Ware Housing, Commercial office, Cinema, Motor Garrage, Workshop, Flated Group Industries.
Your case is being sent to Finance Branch for working out the conversion charges and same will be communicated as and when received. However, the central norms of the plot will be as follow:Signature Not Verified Digitally Signed By:ANU KAPOOR Signing Date:06.10.2022 13:19:05
Plot Size : 22.5x51.8 mtr
Area of plot : 1147.5 sq mtr
Use : General Commercial
Max covered area : 50%
F.A.R. allowed : 100
Height : 14 Mtr.
(This is however subject to payment of conversion charges)"
7. Thereafter, certain demand letters came to be issued by the DDA, demanding an amount of Rs.1,53,74,644/- along with interest @ 18% towards conversion charges in respect of the said property. The original petitioner being aggrieved with the demands raised by the DDA once again approached this Court by filing a writ petition, being W.P.(C) 10616/2019 which ultimately culminated in the judgment/order dated 25.04.2013, wherein it was directed as under:-
"12. For the reasons stated hereinabove, the impugned demand of Rs, 1,53,74,644 is quashed and DDA is directed to issue a fresh demand letter to the petitioner in terms of this order within four weeks.
The interest would be calculated by the DDA till 31.05.2013 on the same rate. A fresh demand letter would be issued to the petitioner within two weeks from today and he shall make payment of the amount demanded by DDA or on before 31.05.2013. On such payment being made, DDA would consider the request of the petitioner for execution of the lease deed for the above referred property as per its rules and policies and take an appropriate decision in the matter."
8. Pursuant to the aforesaid directions of this Court, another demand letter dated 11.07.2013 came to be issued by the DDA whereby an amount of Rs.1,58,13,986/- was demanded from the original petitioner as conversion Signature Not Verified Digitally Signed By:ANU KAPOOR Signing Date:06.10.2022 13:19:05 charges payable towards conversion of the said property to general commercial purpose.
9. The original petitioner, admittedly, paid the aforesaid amount to the DDA on 03.09.2013. Despite the same, the DDA did not proceed to execute the lease deed in favour of the original petitioner, and hence, the present petition came to be filed.
10. In the counter affidavit filed on behalf of the DDA, it has been averred as under:-
"18. That the petitioner represented against the above charges and fined at an exhaustive calculation of conversion charges and thereafter the petitioner filed another Civil Writ Petition No.10616/2009 before this Hon‟ble Court and the same was decided on 25.04.2013 observed as follows:
i.) I am of the view that instead of 18% per annum, the petitioner should made to pay interest @ 15% per annum on the amount of conversion charges, which the petitioner was asked to pay. ii.) At this stage, Mr. Harish Malhotra, Senior Counsel for the petitioner states on instructions that does not dispute the conversion charges of Rs.35,14,219 demanded by the DDA and his only grievances I with respect to rate of interest which has been applied @ 18% per annum and which according to him highly unreasonable. iii.) For the reasons states herein above, the impugned demand of Rs.1,53,74,644/- is quashed and DDA is directed to issue fresh demand letter to the petitioner in terms of this order within four weeks.
iv.) The interest would be calculated by the DDA till 31.04.2013 on the same rate. A fresh demand letter would be issued to the petitioner within two weeks from today and he shall make payment of the amount demanded by DDA or on before 31.05.2013. On such payment being made, DDA would consider the request of the petitioner for execution of the lease deed for the referred property as per the rules and policies and take an appropriate decision in the matter. v.) It is transpired during the course of hearing that though the order passed by the Division Bench of this Hon'ble Court on Signature Not Verified Digitally Signed By:ANU KAPOOR Signing Date:06.10.2022 13:19:05 08.02.1990 envisaged payment of additional premium and not any conversion charges by the petitioner, the demand raised by the DDA vide letter dated 07.10.2008 refers to conversion charges and there is no reference of payment of any additional premium. Pragraph 2 of the said letter reads as under:-
vi.) In pursuance of directions issued by this Hon'ble Court Rs.1,53,74,644 (One Crore fifty three lakhs Seventy four thousand Six hundred forty four only) has been calculated by the Finance Wing as conversion charges that are payable up to 31.10.2008. vii.) In the subsequent letter dated 20.11.2008 issued by DDA, there is no reference to any additional premium. Therefore, for the purpose of deciding this petition, the Court has proceeded on the assumption on that it is the additional premium envisaged in the order dated 05.02.1990 which has been referred as conversion charges in the communication sent by DDA to the petitioner and that this is not the case of the DDA that in additional to the aforesaid conversion charges, the petitioner is also required to pay some other amount by way of additional premium.
viii.) It also appears from communication sent by DDA to the petitioner that some action was sought to be taken by the DDA for levying misuse/damage and unauthorized construction. It is made clear that no opinion is being expressed in this order with respect to levying misuse charges and in respect of unauthorized construction alleged to have been made by the petitioner, those issues being beyond the scope of this writ petition and, therefore, DDA would be entitled to take such action, as is open to it in law with respect to levy of misuse charges/damages and in respect of alleged unauthorized construction. Copy of order dated 25.04.2013 is annexed herewith marked as Annexure A-1."
xxxx xxxx xxxx
23. That in this regard, it is submitted that no doubt there were recommendations of the screening committee given on 30.11.1999 which allows the petitioner to change land use from cold storage to general commercial. But on the other hand the matter remained under examination with the Hon‟ble High Court. The Hon‟ble High Court vide judgment dated 05.02.1990 permitted the change of land use in the following manner:
"From cold storage to office purpose to the extent of 70 % and remaining 30%, including basement, for storage. If however, Signature Not Verified Digitally Signed By:ANU KAPOOR Signing Date:06.10.2022 13:19:05 the petitioner is able to get licence for the cold storage in future the petitioner will be allowed to use 30%, including basement, for cold storage. For the purpose of affecting the aforesaid change, the petitioner would be liable to fulfill necessary formalities as also to pay the additional premium as determined by the DDA on the basis of the extent of the change of the user of the property".
24. That therefore, the judgment of this Hon'ble Court will prevail over the recommendations/decision of the screening committee. DDA cannot change the decision/judgment passed by the Hon'be Court. It is binding on both the DDA and the petitioner. It is pertinent to mention that there is difference in general commercial and commercial. The general commercial use includes all activities of commercial nature where as when specified use as office purposes is a restricted use. The office does not find any reason to change the sprit of the judgment. The lease deed can be executed on the basis of judgment. Therefore, the lease deed is executed, the petitioner would be required to pay outstanding ground rent along with interest, damages, misuse charges and other dues etc.
25. That now the petitioner has filed the instant writ petition No.5794/2015 before this Hon‟ble Court seeking direction to DDA to execute the lease deed of the plot for general commercial purpose as per court direction and as approved in the resolution passed in the 208th meeting of the screening committee of the respondent held on 30.11.1999 as well as clarified in letter dated 25.02.2001.
26. That in this case, since the terms of execution of lease deed and of the use of the plot has been disputed by the petitioner and the matter is sub-judice before this Hon‟ble Court as such it is not possible to execute the lease deed under these circumstances."
11. The only contention raised by Mr. Ashim Vachher, learned senior counsel appearing for the DDA is that the DDA is also entitled to charge additional premium over and above the conversion charges already paid by the petitioner as a pre-condition for execution of the lease deed.
12. A perusal of the judgment/order dated 25.04.2013, passed by this Court in W.P.(C) 10616/2009 clearly reveals that the aforesaid plea is Signature Not Verified Digitally Signed By:ANU KAPOOR Signing Date:06.10.2022 13:19:05 expressly obviated as a result of the following observations contained in the said judgment/order dated 25.04.2013:-
"13. It transpired during the course of hearing that though the order passed by the Division Bench of this Court on 5.2.1990 envisaged payment of additional premium and not any conversion charges by the petitioner, the demand raised by the DDA vide letter dated 7.10.2008 refers to conversion charges and there is no reference to payment of any additional premium. Paragraph 2 o the said letter reads as under:
"In pursuance of direction issued by the Hon'ble High Court Rs.1,53,74,644 (one crore fifty three lakh seventy four thousand six hundred forty four only) has been calculated by the Finance Wing as conversion charges that are payable up to 31.10.08."
In the subsequent letter dated 20.11.2008 issued by DDA also, there is no reference to any additional premium. Therefore, for the purpose of deciding this petition, the Court has proceeded on the assumption that it is the additional premium envisaged in the order dated 5.2.1990 which has been referred as conversion charges in the communication sent by DDA to the petitioner and that this is not the case of the DDA that in addition to the aforesaid conversion charges, the petitioner is also required to pay some other amount by way of additional premium."
[emphasis supplied]
13. It has been specifically recorded in the judgment/order dated 25.04.2013 that it has never been the stand of the DDA that any other amount is to be paid by the original petitioner towards additional premium apart from the conversion charges. The aforesaid findings rendered in the aforesaid judgment/order dated 25.04.2013 have also acquired finality since, admittedly, no appeal has been filed by the DDA against the aforesaid judgment/order. As such, for the DDA to now contend that any additional amount is now to be paid by the original petitioner towards additional Signature Not Verified Digitally Signed By:ANU KAPOOR Signing Date:06.10.2022 13:19:05 premium in addition to the conversion charges, is clearly untenable and is in the teeth of the aforesaid findings. There is also no rationale for the DDA to act contrary to the decision taken by its own Screening Committee on 30.11.1999 and its own communication dated 25.01.2001.
14. In view of the aforesaid, the present petition deserves to be allowed. The DDA is, accordingly, directed to execute the lease deed in respect of plot No. 273, Fruit and Vegetable Market, Okhla Industrial Area, New Delhi, in favour of the original petitioner for general commercial purpose in accordance with the directions already issued by this Court vide order dated 25.04.2013 in W.P.(C) 10616/2009, read with the resolution passed in the 208th meeting of the Screening Committee held on 30.11.1999, as clarified in the communication dated 25.01.2001. The same shall be done within a period of eight weeks from today.
15. Needless to say, the petitioner shall be bound to comply with all necessary formalities/requirements of the DDA for the purpose of execution of the lease deed in respect of the said property for general commercial purpose. It is made clear that this court has not commented/pronounced upon the inter se lis between the petitioners and the respondent no.2. The impact, thereof, if any, on the issue of execution of lease deed, as prayed in this petition, shall be considered by the DDA as per its own policy/guidelines.
SACHIN DATTA, J SEPTEMBER 28, 2022 AK Signature Not Verified Digitally Signed By:ANU KAPOOR Signing Date:06.10.2022 13:19:05