Delhi High Court
Mr. Pradeep Kuckreja vs Delhi Development Authority on 10 March, 2005
Author: S R Bhat
Bench: S R Bhat
JUDGMENT
S. Ravindra Bhat, J.
1. The petitioner herein, a member of the Mohan Cooperative Industrial Estate was allotted an industrial plot. A perpetual lease was executed in his favor on 13.3.1979. In terms of the perpetual lease deed, clause 14, the petitioner was entitled to use the plot for manufacturing purposes or running of industry, as per Master Plan, excepting certain industries, such as those:
"emitting excessive smoke fumes nuisance, cold storage, refrigeration fruit canning and preservatives, feeds and allied products etc."
2. The petitioner could not complete construction on the plot within the time granted in the lease deed and sought extensions which were granted. On the first occasion he was required to deposit an amount of Rs. 7,88,653/- which was paid on 10.4.1996. Sub-equently, another extension was granted, subject to payment of further amount; the other amount of Rs. 2,66,371/- was paid on 19.4.2001 as per the demand raised by the DDA in that regard.
3. The petitioner was issued with a show cause notice on 10.12.2002 alleging that on site inspection it was found that the plot was being used for a show room namely, for "Nike Wears show room" which was not permitted being commercial. The petitioner replied to this stating that with effect from 1.11.2002 he had started using the same for storage godown and warehousing purposes which were permitted activities under the Master Plan. He also stated that the master plan permitted use of the premises/outlets for administrative and as well as office etc.
4. The DDA by its order dated 11.3.2003 cancelled the lease and required the petitioner to hand the possession. This action has been impugned in these proceedings.
5. In the counter affidavit of the DDA, the plea taken is that the plot had been vacant for a long time. Eventually, after payment of late construction charges on two occasions, the petitioner proceeded to complete his construction. The activity in question namely, using it as a show room is not permitted, since it amounts to defeating the industrial policy of the DDA. It is also stated that in terms of the lease deed the action was fully justified.
6. Learned counsel for the petitioner has relied upon the decision of this Court in Rajandheer (India) Pvt. Ltd. v. Delhi Development Authority, 2004(1) AD 409 (hereinafter referred to as "Rajandheer's case"). In that case also the question which arise for consideration was whether the use of an industrial plot for some other purpose would amount to a non-condonable purpose justifying the determination of lease by the DDA. After considering the submissions and the provisions in the master plan, more particularly clauses 8(2) and 8(3) that define the various use activities permitted in use premises and also the definitions contained in the master plan; the Court stated as follows :
"In order to appreciate whether a particular property is being put to use contrary to the Master Plan, an inspection must take place to find out as to the extent of the premises being put to non-manufacturing and non-industrial use, since part of the premises can be put to such use. This has not been done in any of the cases. Really speaking, the test is of the predominant purpose of the use of the plot with permission to carry on the other incidental activities as prescribed in the use zones."
More recently, in a judgment referred in Rajandheer (India) Pvt. Ltd. v. Delhi Development Authority; 2004(1) AD (Del) 409 the same question had arisen; if usage of the premises for godown/storage purposes can be considered as impermissible, leading to cancellation of the lease. While following the ratio in Rajandheer's case, it was also held that the mode and manner-in-which the cancellation was effected could not be sustained.
5. In my opinion, the present case is no different from the facts and features that were existing in other two cases. Here the lease deed required the petitioner to use the plot for industrial/manufacturing purposes, in accordance with the Master Plan. The various provisions of the Master Plan, particularly clauses 8(2) and 8(3)with the annexure define use activities/use zone and permit godown/storage use and permit in certain manufacturing zones or areas.
6. In view of the foregoing conclusions, I am of the view that the petition is entitled to succeed, as far as it concerns itself with relief of cancellation of the lease, I accordingly set aside the order dated 11.3.2003 impugned in these proceedings.
7. The DDA is directed to forthwith restore the said lease dated 30.3.1979 in favor of the petitioner. It is made clear that the respondent-DDA may issue a fresh show cause notice, if necessary, in the event of the DDA deciding to take any action toward determining/canceling the lease. The liberty granted to the DDA shall also be subject to the condition that the petitioner shall cooperate and furnish such materials as may be required of him. The petitioner shall also not obstruct or unreasonably withheld inspection of the premises.
8.The DDA shall also deal with the request for conversion of the property from lease hold into free hold basis as per the Scheme in accordance with law.
9. No order as to costs.
