Raj Rani And Anr. vs Delhi Development Authority
2003 Latest Caselaw 974 Del

ORDER

Sanjay Kishan Kaul, J.

1. Rule.

2. With the consent of learned Counsel for the parties, the petition is taken up for final disposal at this stage.

3. A perpetual lease was executed dated 20.4.1972 in favor of the petitioners in respect of plot No. A-874, Naraina Industrial Area Phase-I, New Delhi measuring 1941 sq. yds. for all industries allowed under the Master Plan for Delhi except acid and Chemicals, cold storages, ice factories and food products. The petitioners constructed on the said plot and was issued the occupancy certificate.

4. The petitioners, received a show-cause notice dated 8.1.2002 alleging that there was unauthorised construction to the extent that a weigh bridge in front side of the open space of the premises had been installed and the same was in violation of the terms and conditions of the clauses of these lease deed being Clauses II(2), II(11) and II(12). The said clauses are as under:

"II. The lessee for himself, his heirs, executors, administrators and assigns covenants with the Lesser in the manner following that is to say:

(2) The lessee shall not deviate in any manner from the lay-out plan nor alter the size of the industrial plot whether by sub-division, amalgamation or otherwise.

(11) The lessee shall not without sanction or permission in writing of the proper municipal or other authority creet any building or make any alteration or addition to such building on the industrial plot."

5. In response to the said notice, the petitioners sent a reply dated 28.1.2002. The petitioners denied that any construction was made and stated that it was fully open, but the petitioners had only put the foundation to make a grip of a weigh machine, which machine was approved by Government authority. The petitioners were, once again, issued a final show-cause notice dated 30.1.2002 alleging the same violation, to which a reply was sent on 14.2.2002 reiterating what was stated earlier in the reply.

6. As order dated 9.5.2002 was passed by the respondent authority determining the lease of the petitioners, which was communicated vide letter dated 22.5.2002. In the letter, it was stated that there is unauthorised construction in open space for an illegal weigh bridge 'Dharam Kanta' of a capacity more than 60 tons.

7. The petitioners soon thereafter filed an application dated 25.6.2002 for purpose of carrying on commercial activity in respect of the weigh bridge, which has been installed in an area of 24 sq. mtrs., and deposited necessary charges.

8. The petitioners also made a representation dated 25.6.2002 for restoration of the lease and property of the petitioners was sealed and, thus, the petitioners also made a request for removal of seal vide letter dated 23.9.2002.

9. The respondent issued a letter dated 30.9.2002 to the petitioners seeking to restore the lease subject to the petitioners paying restoration charges and charges for de-sealing and removal of the unauthorised Dharam Kanta within 15 days. The provisional amount demanded was as-under:

  "Restoration charges Rs. 488900.00 }
De-sealing charges Rs. 15000.00    } Provisional 
Maintenance charges Rs. 5000.00    }"
 

10. The petitioners also got the weigh bridge inspected and certified by the office of the Controller dealing with the Standards of Weights and Measures (Enforcement) Act, 1985.
 

11. At the stage of issuance of notice in the writ petition, the petitioners were directed to deposit a sum of Rs. 50,000/- without prejudice to the rights and contentions of the parties and the premises were directed to be de-sealed by the respondent, which was confirmed on 25.2.2003.

12. In the counter affidavit filed by the respondent, it is stated that DDA had cancelled the lease deed of the petitioners, since the petitioners were and are carrying on commercial activity in the industrial plot, which is totally contrary to the terms of the lease and the purpose for which the plot was purchased. Reliance in this behalf has been placed on Clause II(12), which is as under:

"II(12). The lessee shall not without the written consent of the Lesser use, or permit to be used, the industrial plot or any building thereon for residence or for carrying on any trade or business whatsoever or use the same or permit the same to be used for any purpose other than that of carrying on the manufacturing process or running the industry of for all industries as allowed in the Master Plan for Delhi except acid and Chemicals, cold storages, ice factories and food products or such other manufacturing process or industry as may be approved from time to time by the Chief Commissioner or do or suffer to be done therein any act or thing whatsoever which in the opinion of the Lesser may be a nuisance, annoyance or disturbance to the Lesser and persons living in the neighborhood:

Provided that, if the lessee is desirous of using the said industrial plot or the building thereon for a purpose other than that of the manufacturing process or industry as may be approved from time to time, the Lesser may allow such change of user on such terms and conditions, including payment of additional premium, additional rent, as the Lesser may in his absolute discretion determine."

13. It is, thus, alleged that though the plot was for industrial activities, the commercial activity of the weigh bridge was carried on. It is stated that the show-cause notices dated 8.1.2002 and 30.1.2002 were issued and sufficient time was given to discontinue misuser, failing which the respondent was constrained to determine the lease on 9.5.2002 and thereafter the premises were sealed. It is stated that the petitioners had agreed to comply with the directions and the restoration was subject to the payment of charges and complying with the direction. One such direction/ requirement was that the unauthorised construction/misuser be stopped.

14. It has been stated in the counter affidavit that the petitioners admit the installation of weigh bridge, which is contrary to the terms of the lease deed, since the petitioners themselves had applied for grant of temporary permission for commercial use in the industrial plots. This matter is stated to be kept in abeyance in view of the pendency of some matter before the Hon'ble Supreme Court.

15. I have considered the submissions advanced by learned Counsel for the parties.

16. In order to appreciate the stand of the parties, it has to be seen as to what is the allegation in the show-cause notice. The show-cause notice is based on violation of Clauses II(2) and II(11). Clause II(2), states that the lessee shall not deviate in any manner from the lay-out plan nor alter the size of the plot. This has not happened and, thus, there is apparently no violation of the said clause. Clause II(11) states that without sanction or permission in writing, no alteration or addition in the building on the plot shall be carried out. In fact, there is no addition or alteration of the building on the plot.

17. The respondent seems to have become wiser at the stage of filing of counter affidavit and sought to defend issuance of the show-cause notice as well as termination of the lease on the basis of Clause II(12). Thus, the contention advanced is that the plot was being used for commercial activity while industrial user is permitted. Interestingly, this was neither in the show-cause notice and, thus, the petitioner had no opportunity to reply to the same. The order of termination of lease passed on the basis of the show-cause notice, which does not contain the ground, which is now sought to be raised in the counter affidavit itself would, thus, be bad in law and not sustainable.

18. Be that as it may, even if the case of the petitioners was to be considered under Clause II(12), the contention is that the petitioners are capable of using the weigh bridge for commercial use. On the other hand, learned Counsel for the petitioners states that the petitioners will use the weigh bridge only for themselves and will file an undertaking before this Court within a period of 1 week from today to the said effect. This undertaking will continue to operate till such time the license for commercial use is granted to the petitioners on the application of the petitioners, which is pending consideration.

19. I am unable to accept the aforesaid contention of learned Counsel for the respondent that a presumption should be drawn against the petitioners in view of their application for license for commercial use since the petitioners applied so, when the property of the petitioners was sealed and further nothing prevents the petitioners from applying for such commercial license in accordance with law.

20. Once the weigh bridge is used only by the petitioners themselves, there can be no question of any commercial use of the weigh bridge. In fact, the contention of the petitioners is that the petitioners were only using the weigh bridge for their own material and the respondent has placed no material on record to the contrary nor have any original records been produced before the Court.

21. In view thereof, a writ of mandamus is issued quashing the impugned order dated 9.5.2002 communicated vide letter dated 22.5.2002 terminating the lease of the petitioners and also quashing the impugned notice dated 30.9.2002 demanding the amounts towards restoration charges, de-sealing charges and maintenance charges. The amount of Rs. 50,000/- deposited by the petitioners under directions of the Court dated 11.10.2002 be refunded to the petitioners within a period of 4 weeks from today.

22. Rule is made absolute leaving the parties to bear their own costs.