Shri Sant Ram Sodhi vs Lt. Governor And Anr.
2005 Latest Caselaw 487 Del

JUDGMENT

S. Ravindra Bhat, J.

1. By these proceedings, under Article 226 of the Constitution, directions have been sought to quash demands raised by the respondent Delhi Development Authority (hereafter 'DDA') on 20th October 2003 and also for a direction to the DDA to convert lease hold rights of the petitioner's property into free hold interest.

2. The petitioner purchased a 378 Sq.Mtrs plot, being 621, Block-B-1, Pankha Road Residential Scheme (hereafter called "the property") in an open auction, for valuable consideration, in 1973. The DDA executed a perpetual lease deed in the petitioner's favor. He raised a single storeyed construction on the plot. At that time, the petitioner was a public servant, being a Class-I officer in the Indian Foreign Service. He, therefore, let out the premises to a tenant. The tenant put up certain unauthorized additions/ constructions on the property, and built shops with the aim of letting them out, unauthorizedly. The petitioner filed a suit for injunction. The Civil Court, in those proceedings (Suit No. 376/86) issued an order of status quo.

3. The petitioner had, in the meanwhile, filed eviction proceedings being E-142/84 against the tenant. That was decreed in his favor on 29.09.1992. The tenants' revision petition, directed against the eviction decree was dismissed on 27.09.1993. The tenant, apparently set up a stranger, who filed a suit before this Court and secured an ex-parte stay of dispossession from the property caliming to be a purchaser, in occupation of the premises. The ex-parte order was finally vacated on 14.07.1995; the appeal against that order was dismissed by the Division Bench on 31.07.1995.

4. The petitioner had also filed two other eviction proceedings; one under Section 14C of the Delhi Rent Control Act, in 1993 just before his retirement. This, too was decreed on 11.03.1994 and eviction was ordered against the tenant. The other eviction proceeding had been filed earlier being case No. 371/89. The ground for eviction here was unauthorized construction / alteration of the premises and sub-letting.

5. The petitioner himself had intimated the DDA and the police authorities from time to time urging them to take demolition action against his tenant for the unauthorized construction and misuse of the property.

6. Eventually, after considerable effort, and much litigation, the petitioner secured vacant possession of the premises on 4th August 1995. He had, in the meanwhile, also initiated contempt proceedings against the tenant for violation of the status quo order on the ground that the plot had been unauthorizedly built upon and that shops have been let out to sub tenants. On 19th September 1998, the Civil Judge held the tenant to be in contempt and sentenced him to be detained in civil prison for one month.

7. The petitioner avers that the various sub-tenants in premises filed objections in the executing Court, alleging that they were his tenants, claiming entitlement to remain in possession. In those proceedings, status quo orders had been made, as a result of which the debris of the demolished shops could not be removed. These objections were finally dismissed on 22nd May 2001 when the Additional Rent Controller held that the objectioners were tenants of the petitioner, who had been illegally inducted by the tenant. In these circumstances, the debris could be removed only after the order dated 25th May 2001.

8. After securing vacant possession, the petitioner intimated DDA about the event and also informed it that the unauthorized construction had been demolished, and the unauthorized use also had stopped.

9. On 1st December 1995, the DDA informed the petitioner that it had found him to have raised unauthorized construction on the plot and the premises were being used for the purpose of a shop etc., which were contrary to Clause II (12) and (13) of the lease deed; that a show cause notice had been issued to which there was no reply. As a result, the DDA cancelled the lease deed w.e.f. 25.08.1995. The petitioner responded to the letter, by a representation dated 27th December 1995 intimating DDA that he was not responsible for the unauthorized construction and misuse of the property; that his tenant was instrumental in such activity. It was also pointed out that the unauthorized construction in fact were contrary to injunction orders and that finally after having approahced the Courts and secured vacant possession, the objectionable portions of the premises had been demolished. He also pointed out that the debris and the shutters of the premises could not be removed on account of certain status quo orders. He, therefore, requested that the lease ought to be restored. The petitioner applied to the DDA for conversion of the property into free hold rights and deposited an amount of Rs.22547/-. He again followed up this request with another application on 24th December 1999 and deposited the full consideration of Rs.42,491/-.

10. In the meanwhile, in 1997, the DDA had sought for particulars of the status quo orders passed in proceedings and also sought an undertaking to the effect that he would pay restoration charges.

11. On 24th September 2003, the DDA wrote to the petitioner claiming an amount of Rs. 27,000/- towards restoration charges and an amount of Rs.49,97,113/- as misuse charges. The petitioner was aggrieved and represented to the DDA against this demand stating it to be unjustified. His request was however declined.

12. In support of the averments, the petitioner has reliedupon copies of the complaints written to the DDA and the police intimating them about unauthorized use of the premises and seeking action; the complaints also rely on copies of the order in the injunction suit and the orders passed in the eviction proceedings etc.

13. The DDA in its reply has not disputed the facts relating to the history of the proceedings eventually culminating in the vacation of premises after they had been unauthorizedly used by the tenant and the demolition of the various portions of the premises. It has, however, relied on a report of its Field Staff dated 13.01.1997, which states that though the shops had been demolished, the rolling shutters and malba (debris) was still lying at the site. It is also averred that the request for restoration was acceded to but upon the condition that the amounts demanded by letter dated 24.09.2003 ought to be deposited. The subsequent representation of the petitioner for waiver of those charges, was declined and it is averred that the petitioner was requested to deposit the amounts within 15 days from 22.12.2003 failing which an amount of Rs.12.5% per annum was to be paid in addition.

14. Learned counsel for the petitioner submits that the impugned demand raised by the DDA is utterly arbitrary. He states that no fault could be attributed to the petitioner. Being a Central Government servant, who was posted out of Delhi, the petitioner let out the premises. His tenant however misused the property by putting up unauthorized constructions, unlawfully sub letting and using the premises as shop. The petitioner had to fight marathon legal battles spanning more than a decade in various proceedings. Untimately, he secured vacant possession and was able to demolish the unauthorize constructions, and use the property for residential purposes. However, even at that stage in 1995, the sub tenants managed to stall full action by securing status quo orders as far as debris etc. were concerned. That too, came to an end in 2001. In the meanwhile, the tenant had been found guilty of contempt, for having violated the status quo order, (that directed him to not put up unauthorized construction or use the premises for any purpose other than residential).

15. In the light of these facts, it is submitted, that the DDA's action is high handed. At every stage, since the early 1980's, till the petitioner managed to get back his property, it was aware of the correct state of affairs. Hence, it could not claim that the petitioner was guilty of misuse and raise unconsionable demands as misuse charges.

16. Learned counsel for the DDA submits that though the facts relating to various Court proceedings etc. cannot be disputed, nevertheless, the petitioner's premises were put to misuse for the period mentioned in the notice. The petitioner himself wanted the lease to be restored. As per its policy, misuse charges were payable for that period.

17. The records of the DDA relating to the petitioner's case were produced during the course of hearing. The entire consideration of the case is premised on the assumption that the misuse or the wrongful use that the property was put to, has to be shouldered by the petitioner. As in the case of the affidavit, (in these proceedings) the file nowhere disputes or casts a doubt about the genuineness of the claim of the petitioner of being a victim in the hands of his tenant. The file shows that the entire history of the case was recounted time and again to the DDA. The file contains several representations by the petitioner to the DDA intimating the unauthorized construction put up by the tenant and urging it to take suitable action including demolition. The letters in that regard are dated 4th April 1986, 28th April 1986, 1st October 1987, 26th January 1989 and 5th March 1990. There are other representations / letters intimating the DDA about the litigation of the orders passed by the Courts. However, there is no application of mind to these facts and specifically as to whether in such circumstances, the lessee, namely, the petitioner herein, would nevertheless be responsible for violation of the terms and conditions of the lease, and made to pay misuse charges.

18. The stipulations in question contained in the lease deed, namely, Clause II-(12) and (13) of the lease deed reads as follows:-

(12) The lessee shall not without sanction permission in writing of the Municipal or other authority erect any building or make any alteration or addition to such building on the residential plot.

(13) The lessee shall not without the written consent of the Lesser carry on or permit to be carried on, on the residential plot or in any building thereon any trade or business whatsoever or use the same or permit the same to be used for any purpose other than that of private dwelling or do or suffer to be done therein any act or thing whatsoever which in the opinion of the Lesser may be nuisance, annoyance, or disturbance to the Lesser and persons living in the neighborhood.

19. An analysis of the above show that the breaches or violation of the specific conditions have to be on account of the lessee's conduct. In other words, there must be a positive act or a positive commission on the part of the lessee which would result in violation. Here, what emerges is that the petitioner is a victim by all counts. He was harrased by his tenant and subsequently by others, who engaged him in protracted litigation. After having gone through no less than three eviction proceedings, a civil suit, a revision proceeding, two execution proceedings and one contempt proceeding, in all of which the Courts consistently upheld the petitioner's pleas, (including the one that the premises had been unauthorizedly sub-let, unauthorizedly constructed upon and misused), he is been charged for an act that was never committed by him. In my opinion, the stand of the DDA is arbitrary.

20. Every action of the State or a public body like the DDA has to be supported by reasons that are germane and relevant to the issue; and have to conform to principles of non-arbitrariness. The imperatives of Article 14 are fairness, reasonableness, non-arbitrariness and non-discrimination. To my mind, the complete non-application of mind of the DDA to the various Court orders, more particularly the eviction order which was passed upon the unauthorized construction and unauthorizeduse of the premises, betray a mechanical and arbitrary approach. They also betray disregard to the judicial process, which conclusively established, time and again that the petitioner was entitled to eviction on the ground of wrongful use and wrongful construction on the premises by the tenant.

21. In view of the above findings, on the facts of this case, I am of the view that the DDA cannot legimately claim any amount either for restoration or towards misuse. To permit it to do so would amount to punishing a victim for a wrong that was inflicted on it.

22. In view of the foregoing discussion, I am of a the view that the petition has to be allowed. The letter / demand dated 20th October 2003 followed and the further letter dated 17.02.2004, issued by the DDA, demanding sums of Rs.27000/- and Rs.49,97,113/- with interest are hereby quashed / set aside. A direction is issued that the petitioner's claim or request for conversion of the property into free hold rights be processed and decided within a period of six weeks from today without insisting on payment of such misuse and restoration charges.

23. The writ petition is disposed off in the light of the above directions.

24. No costs.