Malhotra Tyre Service Company vs National Capital Territory Of ...
2005 Latest Caselaw 195 Del

JUDGMENT

Manmohan Sarin, J.

1. Rule.

With the consent of the parties, writ petition is taken up for disposal.

2. Petitioner by this writ petition seeks quashing of the impugned order No.1and/BIE/E/II-20/813 dated 29.11.1999 passed by the Deputy Secretary, Commissioner (Industry) determining the lease of Plot no.20, Phase II, Badli Industrial Estate, Delhi. Lease was determined on the ground that petitioner was not carrying out any manufacturing activity at the plot. This conclusion was on the basis of a report dated 10th August, 1999 of Estate Manager, Badli. The case of the petitioner, on the other hand, is that on account of industrial recession and financial difficulties, petitioner had not been able to carry out the industrial activity to its full extent and only light machining work was carried out. Petitioner disputed the factum of any alleged inspection, which admitted was not carried out in the presence of the petitioner or his representative.

3. The termination order had been challenged in appeal before the Lt. Governor. Appeal was also dismissed on merits. It was also held that appeal appears to have been preferred by an unknown person who had no locus standi. Counsel for the petitioner submits that appeal had been preferred through a duly constituted attorney.

4. It is not necessary to go on the merits of petitioner's contention regarding petitioner carrying out lathe machining work and no inspection having been carried out and the order of determination was passed based on a report made behind the back of the petitioner. This is because the very foundation of initiating the action for determination i.e issuance of a show cause notice has not been complied with.

5. Petitioner had been issued on 9th September, 1999 a communication which reads as under:-

  No.678                                                                Dated 9.9.99
 

To
 

M/s Malhotra Tyre Service Co.(Regd.) 

Plot No.20, Phase II, 

Badli Industrial Estate, 

Delhi-110 042.
 

Subject: Personal hearing regarding no manufacturing activities at Plot No.20,  Phase II, BIE, Delhi.
 

Sir,
 

I am directed to request you to appear before the JDI(Land) in her chamber in the office of the Commissioner of Industries; CPO Building, Kashmere Gate, Delhi-110 006 on 17-9-1999 at 12.00 Noon, for personal hearing in connection with the above noted subject.

Yours faithfully,

Sd/-

(S.K. Nigam)

Assistant Director of Industries

(LAND)

6. Ms. Sonali Malhotra, learned counsel for the petitioner submits that the above communication cannot be regarded as a show cause notice. It refers to a personal hearing granted in respect of "no manufacturing activities" at Plot no.20, Phase II, Badli Industrial Estate, Delhi. Reference may be usefully made to the lease executed between the parties. Clause IV of the lease is as under:-

"No forfeiture or re-entry shall be effected until the Lesser has served on the Lessee a notice in writing.

(a) Specifying the particular breach complained of, and

(b) if the breach is capable of remedy, requiring the Lessee to remedy the breach.

And the lease fails within such reasonable time as may be mentioned in the notice to remedy the breach, if it is capable of remedy; and in the event of forfeiture or reentry the Lessee may, in his discretion relieved against forfeiture on such terms and conditions as he thinks proper.

Nothing in this cause shall apply to forfeiture or recently."

7. It would be seen from the foregoing that communication dated 9th September, 1999 would not meet the requirement of the aforesaid clause inasmuch as it does not even specify in detail the nature of breach except the same is mentioned as subject of a personal hearing. More significantly, it does not meet the requirement of requiring the lessee to remedy the breach and giving an opportunity therefore.

8. In these circumstances, it has to be held that respondents singularly failed to give requisite show cause notice. Looking at from the requirements under Public Premises (Eviction of Unauthorized Occupants) Act point of view also, the aforesaid communication does not meet the requirement of statutory notice, as prescribed. This is if it was to be urged that notice was not under the lease but otherwise. This court having reached the conclusion that the order of termination has been passed contrary to the lease terms and without giving the requisite show cause notice, the order of determination is not sustainable and is accordingly quashed. Resultantly, the order in appeal passed by the Lt. Governor also stands quashed.

9. In the result, writ petition is allowed. Order No.1and/BIE/II-20/813 dated 29th November, 1999 passed by respondent no.3, order passed by Lt. Governor, Delhi in the appeal filed by the petitioner against the order dated 29.11.1999 and the order No.1and/BIE/II-20/1070 dated 14.2.2001 passed by respondent no.3, requiring the petitioner to vacate the plot, are hereby quashed.

10. Learned counsel for the respondents at this stage submits that petitioner has possibly parted with possession and transferred the property on power of attorney since appeal had been filed by a person who does not appear to have any locus standi. It would be open for the respondents to proceed against the petitioner if such a ground is available.