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(ii) There is no provision in the lease or the Delhi Development Act 1957 ('DD Act') for recovering misuse charges and so the demand is without the authority of law.
(iii) Without prejudice to the above submissions, it was submitted that there is an implied limitation for recovering misuse charges for past misuse. An analogy was drawn with Section 29(2) of the DD Act which provides for levy of fine for an offence there under which, when read with the provisions of Section 468 of the Code of Criminal Procedure 1973 (CR PC) would imply a period of limitation for taking action. The impugned demand which seeks to recover in 2004 misuse charges for a period from 30.7.1983 to 5.2.2003 is barred by laches.
The power to demand misuse charges
9. There are two aspects of the validity of the demand for misuse charges. The first concerns the authority in law of the DDA to recover misuse charges. The second is whether, assuming such authority exists, the demand for past misuse charges is justified in the facts of the present case.
10. The property in question was given on a perpetual lease jointly in favor of the petitioner, his mother and his wife by a lease deed dated 15.4.1972. Apart from the two Clauses referred to by the DDA i.e. Clause II(13) and Clause III there appears to be no other specific provision in the lease deed that enables the DDA to collect misuse charges. Much less is there any provision which permits the levy and collection of charges for past misuse within a specified period. Therefore, while not disputing that there was no statutory authority in terms of the DD Act, counsel for the DDA sought to justify the demand by referring to the expression "on receipt of such amount and on such terms and conditions" occurring in the proviso to Clause III and submitted that this would include the power to levy misuse charges. The same expression occurs in the proviso to Clause II(13) of the lease deed.
31. This Court is unable to accept the submissions of the DDA that there is no limitation whatsoever for recovering misuse charges. That would render the power to recover misuse charges arbitrary and unreasonable. The petitioner is right in contending that even where a penalty in terms of Section 29(2) DD Act, has to be recovered within a reasonable time, it is inconceivable that there would be no limitation whatsoever for recovering misuse charges. Also, this Court is not prepared to accept the argument advanced by the DDA that by repeatedly issuing show cause notices to the lessee, without taking any follow up action on such alleged misuse for several years, the DDA was in fact being lenient. By not adjudicating on these show cause notices and by merely repeating the same charges in the subsequent show cause notices, the DDA cannot expect to give itself a endless period of limitation for adjudicating on the alleged misuse. Significantly, in none of the show cause notices or 'final' notices has the lessee been informed that the DDA is proposing to levy and collect misuse charges. There is therefore no mention of the likely amount of such misuse charges. The petitioner is right in contending that till 2004 he was never informed that he was even required to pay misuse charges. The exercise of the power by the DDA to levy and collect misuse charges in the instant case can by no means be said to be reasonable.