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4. The brief factual matrix is as follows:

The appellant is a member of the Mohan Cooperative Industrial Estate, New Delhi and is holding an industrial plot bearing No.B-1 Extension, A-27, Mohan Cooperative Industrial Estate, New Delhi. The plot was originally allotted to one Mr.Ram Prakash under a perpetual sub-lease deed dated 17th April, 1978. The appellant, which is a company incorporated under the LPA No.283/2008 page 2 of 13 Companies Act, 1956, is a subsequent purchaser who bought the property in July, 1995. The premises were thereafter and is since being used predominantly for the purposes of computer software and programming / IT enabled services and other similar activities. The appellant applied to the Municipal Corporation of Delhi and was granted an industrial licence for the purposes of computer and software programming, which is being renewed from time to time. In 2003, the DDA floated a scheme for conversion of the industrial property from leasehold rights to freehold rights on payment of conversion charges. Under the scheme an option is given to the subsequent purchaser to have the property converted from leasehold rights to freehold rights thereby recognising and regularising the sale pertaining to the said purchase. The DDA under the said scheme levied a surcharge of 33.33% over and above the conversion charges applicable in cases of purchases / sales from the original sub lessee, while allowed concession / discount of 40% in case of an original allottee.

7. Coming then to the alleged violation of Sub-Clause 14 of Clause II of the sub-lease deed, it is an admitted position that the industrial premises in question are used for the purposes of LPA No.283/2008 page 5 of 13 production of computer software, programming and for providing Information Technology enabled services and only part of the premises is being used for storage / godown and for office purposes. Consequent upon an order of this Court dated 5th March, 2007, a joint inspection was carried out on 26 th March, 2007. A joint inspection report is filed as per which basement was found to be used for storage, ground floor was found to be used for software programme (computers installed) and the first and the second floors were found to be used for office purposes with computers installed on the first floor. An industrial licence was also produced. The inspection report states that the nature of trade carried out by the occupier was computer installed software programming.

"16. The contention raised by the respondent is that software development and Information Technology cannot be regarded as manufacturing process or industry. It is not possible to accept the said contention. The Black's Law Dictionary defines "Industry" as "Any department or branch of art, occupation or business conducted as a means of livelihood or for profit: especially one which employs much labour and capital and is a distinct branch of trade." Industry can be defined as the habitual activity, either bodily or mental, to manufacture by way of processing, assembling and creating goods or saleable commodity. Software development is done with the aid and help of manpower. It results in creation of a product which may be intangible initially but when is transferred to floppies, CD roms, punch card, magnetic tapes, etc, it becomes a marketable commodity or goods. It is saleable and has value even in it's intangible form. Sub- Clause 14 of the Sub-lease deed has to be interpreted in a reasonable manner and with sufficient flexibility and should not be given a very strict interpretation as to prevent the Sub- lessee from using the property in a manner he wants. Computer software is a marketable product and are 'goods' under Article 366(12) of the Constitution of India as held in Tata Consultancy Services v. State of Andhra Pradesh reported in (2005) 1 SCC 308. Use of intellectual rights and resources which are LPA No.283/2008 page 7 of 13 otherwise intangible to produce a product can be regarded as a manufacturing process/activity for the purpose of Sub-Clause

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18. A reading of the said Clause indicates that under the new Master Plan of Delhi 2021, a limited type of new industries have been permitted and these include computer hardware and software industries which are regarded as hi-tech areas. Contention of DDA in their affidavit dated 26th September, 2007 that under the Master Plan of Delhi 2001 computer software was not considered as an industry and was not permissible in industrial premises and under the Master Plan of Delhi 2021, computer software is permissible only in new industrial areas and is to be restricted to hi-tech areas, is to be rejected. It cannot be said that Master Plan of Delhi 2001 did not consider development of computer software to be an industry or involving manufacturing process. Further interpretation given to Clause 7.7 of LPA No.283/2008 page 8 of 13 Master Plan of Delhi 2021 by DDA is incorrect. The said Clause stipulates that new industrial activity in Delhi would be restricted to hi-tech areas like computer software industry and also industries involving system integration using computer hardware and software. The term "hi- tech area" is used for the purpose of referring to the nature of industry rather than expanding the scope of the terms industry or manufacturing process by deeming fiction. Certain other industries are also mentioned.