Hewa Pvt. Ltd. vs D.D.A.
2005 Latest Caselaw 1252 Del

JUDGMENT

Pradeep Nandrajog, J.

1. On 19.7.2002, following order was passed determining the perpetual lease deed executed by DDA in favor of the petitioner :

"15(24 MCIE) 73/LandB(1)/1283 Dated : 19.7.02

From :Dy.Director (Indl)

M/s Hewa Private Limited,

14-A/18, WEA,

Pusa Road, New Delhi.

Sub: Cancellation of sub lease deed in r/o PlotNo.A-36, Mohan Co-op. Indl. Estate.

Sir,

WHEREAS by virtue of sub-lease deed dared 10.1.1973 executed between you and the President of India, you were the sub-lessee of the above mentioned plot.

AND WHEREAS by virtue of Clause 6(a) and (b) the sub lease was not to sell, transfer, assign or otherwise part with possession of the whole or part of the industrial plot in any form or manner, benami or otherwise to a person who is not a member of thelessee.

AND WHEREAS by virtue of Clause 11(13) sub-lessee shall not without the sanction or permission in writing of the proper municipal or other authority erect any building or make any alteration or addition to such building on the industrial plot.

AND WHEREAS show cause notices on a/c of the aforesaid breaches under Clause II.6 (a) and (b) and II (10 and 13) were issued to you on 13.11.97, 26.6.98 and 25.10.99. Neither your reply dated 29.8.99 was found to be satisfactory nor you have removed theforesaid breaches inspite of opportunity given to you.

Now, therefore, the lease of the aforesaid plot has been determined by the lesser/L.G. Delhi vide his order dated 3.7.02 for violating the aforesaid clauses of the sub-lease deed. Your occupation over the aforesaid premises has become unauthorized.

You are required to hand over the possession of the said premises along with superstructure standing thereon to our Jr.Engineer on 5.8.02 at 11 A.M. failing which proceedings under the provisions of Public Premises (Unauthorized Occupant) Act,1971 shalbe initiated against you and all other occupants for eviction from the aforesaid public premises.

Yours faithfully,

sd/-

Dy.Director(Indl)

DDA, New Delhi"

2. Petitioner seeks quashing of the said order as also a mandamus that DDA should withdraw their notices dated 20.1.1996, 13.1.1997, 24.6.1998 and 25.10.1999. Mandamus is sought for restoration of the sub lease.

3. At the hearing held on 2.9.2005, learned counsel for the petitioner fairly conceded that the notices dated 20.1.1996, 13.1.1997, 24.6.1998 and 25.10.1999 cannot be quashed for the reason, they are in the nature of a show cause notice to the petitioner and required a determination of facts in light of the response from the petitioner. There is no jurisdictional challenge to the notices.

4. Accordingly, I have only to decide the legality and validity of the order dated 19.7.2002 and the consequential determination of the petitioner's perpetual sub lease.

5. On 10.1.1973, a perpetual sub lease was executed in favor of the petitioner demising plot No. 36, Block-A, Mohan Cooperative Industrial Estate, New Delhi in favor of the petitioner. Inter alia, lease mandated, vide Clause 14, that the industrial plot and building to be constructed thereon would be used for no purpose other than manufacturing or running industry as per Master Plan of Delhi except industries emitting excessive smoke, cold storage, refrigeration, fruit canning or preservatin.

6. Vide Clause 6(a) and 6(b) of the perpetual lease, petitioner was prohibited from selling, transferring or parting with possession of of the industrial plot, in part or in whole, save and except with prior permission of the Lesser. Breach of Clause 6entitled the Lesser to revoke the lease and regain the possession.

7. Clause 7 of the perpetual lease permitted the Lesser to recover the unearned increase up to 50% while granting permission to sell the leasehold rights, if permission was sought and granted.

8. Petitioner constructed a building on the plot. The same was put to use.

9. On 29.6.1999, petitioner wrote a letter to DDA informing that it was given to understand that some notices were issued pertaining to the property in question. It was intimated to DDA that notices were not received by the petitioner. Petitionersought inspection of its file with DDA.

10. On 25.10.1999, a show cause notice, stating the same to be a final opportunity was received by the petitioner. Following violations of the perpetual lease were notified to the petitioner :

(i) Sale of land to Santa Singh Kochhar and sub letting to Escatel Mobile Communication Ltd., SIEMENS and ESCORTS.

(ii) Division of basement into small units.

11. The show cause referred to earlier show cause notice dated 22.1.1996.

12. Petitioner responded to the show cause notice dated 25.10.1999 vide its letter dated 8.12.1999. Following was intimated by the petitioner :

" Deputy Director (Industrial)Delhi Development Authority,'A' Block, First Floor,Vikas Sadan, I.N.A.,New Delhi.

Sub: Plot No. 36, Block A in Mohan Co-op.

Industrial Estate, Mathura Road, NewDelhi.

Ref: Your notice dated 25.10.1999.

Sir,

This is with reference to your show cause notice dated 25th October,1999 giving us final opportunity. We straight away deny having received any show cause notice from you earlier, as stated by you in your notice under reply. We did not receive ay notice dated 22.1.1996, 13.1.1997 or 24.6.1998, as has been stated by you. The notice under rely is the first notice even been received by us in this regard.

The allegation made in your dated 25.10.1999 are also incorrect and are not based on the true and correct facts. It is incorrect that the company (M/s Hewa Private Ltd.) has sold the said premises to Shri Santa Singh Kochhar or anyone else. The prperty in question continues to be the property of M/s Hewa Private Limited and as such your allegation in this regard is totally incorrect. It is further incorrect that there is any sub-letting by the company and which is contrary to the terms andconditions of the lease deed dated 10.1.1973. It is further incorrect that any division in the basement has been made, by any structural alterations or which is contrary to the terms and conditions of the lease. There is no mis-user of the basementand the plot, as alleged by you.

There are no breaches which are required to be rectified nor undertaking, as desired, is required to be issued under the facts of the case. The allegation in the notice dated 25.10.1999, being incorrect, the notice may, therefore, be withdrawn and noaction in this regard be taken. In case any further clarification is required, we maybe given personal opportunity to clarify the same.

Thanking you,

Yours faithfully,

for HEWA PRIVATE LTD.

Sd/-

DIRECtor"

13. As per the petitioner, it made several visits to the office of DDA. Officers assured the petitioner that no action would be taken. Notwithstanding that, impugned order was passed on 19.7.2002.

14. Needless to state, in the writ petition, petitioner denies violating any terms of the lease. Further, petitioner relies upon office order dated 13.7.1999 issued by the Lt.Governor of Delhi directing that where software units were allowed to occupy industrial buildings, user of the services would not be considered as tenants and the units would not be liable to pay sub letting charges.

15. As per counter affidavit filed, perpetual lease was executed in favor of Shri Puran Singh Sethi. He floated a private limited company and requested transfer of the leasehold rights in favor of the said company i.e. the petitioner. Change of name was allowed.

16. It is stated in the counter affidavit that sub-letting was noted and pursuant thereto show cause notices were issued. It is further stated that in the year 1994, it came to the notice of DDA that the property has been sold to Santa Singh Kochhar and pertaining thereto another show cause notice was issued. It is stated that the show cause notices issued prior to 25.10.1999 were not replied to. That reply to the show cause notice dated 25.10.1999 was found to be in adequate and hence rejecte

17. Mr.Sachin Chopra, learned counsel appearing for DDA urged that there are two violations by the petitioner. The first violation urged is the transfer of share holding of the petitioner company to Santa Singh Kochhar. Counsel urged that as perpolicy of DDA, it amounts to sale. Second violation urged is of sub-letting. Counsel urged that on account of the two violations, ignoring effecting partition in the basement, order of determination of the lease is valid.

18. It is trite that where an act is alleged against a party and it is intended to take penal action pursuant to the fact alleged, gravement of the allegation must be made known to the offender with clarity so that an effective reply can be given.

19. Merely because DDA found Santa Singh Kochhar to be Director of the petitioner company would not mean that the original promoters have sold their entire share holding. If DDA alleges sale on account of transfer of entire share holding of the petitioner, DDA must put the petitioner to notice that on account of transfer of entire share holding from Puran Singh Sethi to Santa Singh Kochhar, there has resulted a sale of the land in question.

20. Perusal of the show cause notice dated 25.10.1999 merely records that the premises have been sold to Santa Singh Kochhar. Petitioner has rightly denied the same inasmuch as a person understands a sale to mean a transfer inter vivos. Had the petitioner been notified that DDA is treating it to be a case of sale as Santa Singh Kochhar is found to be the Director of the petitioner, petitioner could have had responded whether the entire share holding of the petitioner has been transferred frm Puran Singh Sethi to Santa Singh Kochhar. In my opinion, on account of vagueness in the show cause notice, impugned order in so far it relates to the charge of sale cannot stand.

21. On the issue of sale as also on the issue of sub-letting, there are further considerations which have to be gone into before a lease can be determined.

22. A learned Single Judge of this Court, S.K.Kaul, J. , in the decision reported as , Rajandhir (India) Pvt.Ltd. v.DDA held that in view of guidelines issued by DDA pertaining to sub lease (guidelines noticed in para 26 of thereport) sub-letting was capable of being rectified on payment of certain charges. In the context of sale, it was noted that violation was capable of being rectified by paying 50% unearned increase.

23. Taking note of the law laid down by S.K.Kaul, J. as afore-noted and in view of the facts as recorded above, impugned order dated 19.7.2002 requires to be set aside. Order accordingly.

24. However, that would not mean that DDA cannot take any action. Since the final order has been quashed, in view of the fact that the notice issued by DDA to the petitioner pertaining to allegation of sale of the land is vague and pertaining to the issue of sub-letting on the ground that same is capable of being removed, DDA would be free to issue a fresh notice to the petitioner intimating the exact facts on which DDA alleges that there has been a sale of the land. Facts of sub-letting have alredy been notified to the petitioner. The show cause notice, if at all issued, would be treated as a supplementary show cause notice in addition to the existing show cause notice dated 25.10.1999. Petitioner would be granted a reasonable opportunityto reply and personal hearing. Thereafter, order would be passed. Further action would be in accordance with law.

25. Before parting, I may note that the defense of DDA pertaining to office order dated 13.7.1999 issued by the Lt.Governor of Delhi is that the said office order relates to industrial plots sold/transferred by the Commissioner of Industries and not tothe plots sold by other authorities in the Union Territory of Delhi.

26. Petition stands disposed of in terms of paras 23 and 24 above.

27. No costs.