Mrs.Neeta Ghuman & Anr. vs Delhi Development Authority
2011 Latest Caselaw 1999 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 06.4.2011


+      RSA No.397-98/2006 & CM Nos.16452/2006 &
       16454/2006



MRS.NEETA GHUMAN & ANR.                         ...........Appellants
                Through:             Mr.Keshav Dayal, Sr.Advocate
                                     with   Arun    Beriwal     and
                                     Mr.Prehlad Dayal, Advocates.

                     Versus

DELHI DEVELOPMENT AUTHORITY          ..........Respondent.
                 Through: Mr.Rajiv Bansal, Advocate.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?               Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes


INDERMEET KAUR, J. (Oral)

1. This appeal has impugned and judgment dated 16.9.2006

which had endorsed the finding of the trial judge dated 07.10.2002

whereby the suit filed by the plaintiff Neeta Ghumen seeking

permanent injunction against the defendant/ Delhi Development

Authority (DDA) restraining them from acting upon the notice

dated 09.12.1983 holding her guilty for the misuse of the suit

property had been dismissed.

2. The case of the plaintiff is that plaintiff has purchased this

property bearing No.82/13, Safdarjung Enclave, New Delhi from

the President of India vide perpetual lease dated 23.12.1965; It

compromised of a ground floor, first floor, mezzanine floor, second

floor and a garage block. This property was admittedly located in a

residential zone. Plaintiff had fulfilled all conditions to run a guest

house. On 22.5.1981 she had applied for permission to run a

guest house/boarding house/lodging house but no reply was

received. On 08.3.1983 plaintiff received a notice stating that she

was not entitled to carry on any trade or business in the said

premises. Reply dated 15.3.1983 was sent by the plaintiff

clarifying that the premises are being used for a family dwelling

house and for no other purpose; the guests who use the same are

paying guests; user was residential only. Thereafter on 29.12.1983

another notice was received by the plaintiff terminating the lease

of her plot holding it to be in violation of the terms of the lease.

3. The defence of the defendant was that the plaintiff is seeking

a declaration under the garb of an injunction. Suit is bad for want

of notice under Section 53B of the Delhi Development Act. Plaintiff

had applied for permission for running guest house; no permission

was granted. The user of the property for running a guest

house/boarding house/lodging house by the plaintiff is in

contravention of the terms of the lease. Suit is liable to be

dismissed.

4. On the pleadings of the parties six issues were framed; they

read as follows:

i. Whether suit is not bad for want of notice Under Section 53-B of DD Act? OPP ii. Whether notice dated 9.12.83 is bad, illegal and against the provisions of law? OPD iii. Whether order dated 9.12.83 is against the terms and conditions of these lease deed? OPD iv. Whether plaintiff has committed violation of the lease deed? OPP v. Whether plaintiff is entitle to the relief claimed for? OPP

v. Relief.

5. Oral and documentary evidence was led. Trial judge was of

the view that although the plaintiff had applied for a licence for

running a guest house but the same had not been permitted; the

notification Ex.PW-2/1 dated 7.5.1999 permitting user of guest

house is permitted in certain areas only. Safdarjung Development

Area where is the suit property is located is not one such area; it

was not covered by this notification Ex.PW-2/1. The contention of

the plaintiff that the premises are being used for residence and no

food is being served is an afterthought story which has been

cooked up by the plaintiff. This has been noted in the para 11 of

the judgment of the trial judge. Suit of the plaintiff was dismissed.

6. In appeal this finding was endorsed. The relevant extract of

para 10 of the impugned judgment qua this submission is noted

herein below:

"On perusal of the impugned order I find that Ld. Civil Judge has dealt with this aspect. It was observed by the Ld. Civil Judge that plea of the plaintiff that no food was being served there was an after though story. I also analize the evidence. There is no evidence of the plaintiffs which could corroborate her statement on this aspect. No witness either form M/s Ghuman Hotels Pvt. Ltd or any other person was examined on this aspect that suit premises was used only for lodging and boarding and no food was served there. Plaintiff has also failed to examine any paying guests on this aspect that no food was served to him or her during her/his stay. Ex.PW-1/3 is the letter of the plaintiffs dated 05.11.1980 to the Joint Director Master Plan DDA seeking permission for using the suit premises as a guest house. This letter nowhere contains that food will not be served in the guest house/lodging house/boarding house."

7. This is a second appeal. On 18.8.2008, it is admitted and the

following substantial question of laws were framed:

1.Whether the mere use of a part of the residential premises for the purposes of a guest house will change the nature of premises

from „residential‟ to commercial‟?

2.Whether the case of the appellant is covered by notification dated May 17, 1995 and the letter dated November 13, 2000 issued by the Ministry of Urban Development and Poverty Alleviation?

8. On behalf of the appellant, it has been urged that the finding

in the impugned judgment in para 10 is a perverse finding wherein

it has endorsed the finding of the trial judge holding that this

submission of the plaintiff (that she is using this premises for a

guest house only/residential purpose and is not serving food is an

afterthought) is clearly a perversity. Counsel for the appellant has

placed reliance upon a judgment of this Court reported in WP(C)

No.2004/1997 Vikramjit Kapoor Vs. UOI to substantiate his

submission that the running of a guest is a residential user only; it

does not contravene the terms the lease.

9. Arguments have been countered. It is pointed out that the

concurrent findings of the fact cannot be interfered with.

Substantial question of law has not arisen. The fact finding courts

had returned a positive finding that the user of the premises was

commercial.

10. Record had been perused. Para 6 and 8 of the plaint are

relevant. In both these paragraphs there is a clear and categorical

stand of the plaintiff that the premises are being used for a guest

house and no food is being served therein; in the corresponding

paras of the written statement there is no specific denial to this

particular averment. PW-1 has also on oath deposed that the

premises are being used for the residence of guests only and no

food is being served therein; there is no contravention of the lease.

PW-1 has not been cross-examined on this aspect. The averment in

the plaint and the testimony of PW-1 has not only been misread and

misconstrued in the impugned judgment but has been completely

topsy-turned. What the plaint has said and what PW-1 had deposed

has been read in reversal. Finding of fact has been returned

holding that the averment of the plaintiff that the premises are

being used for a guest house and no food is being served therein is

an afterthought is a complete illegality; this is evident from the

record; this finding is nothing but perverse.

11. In the judgment of Vikramjit Kapoor a Bench of this Court

after examining the case law on mis-user charges being levied

upon the properties which were being run as a guest

house/boarding house, relying upon a judgment of this Court

reported in 2003 III AD (Delhi) 634 Ashwani Kumar Khanna vs.

DDA it had held that only when the non-residents were permitted

user of restaurant and eating place would the user change from a

residential to a commercial user. In the absence of food being

served in the boarding house and there being no restaurant the

user remains residential. In this judgment it was further held that

even if there was a requirement for seeking permission for running

a guest house, running of the same without such a permission

would not convert the user from "residential" to "commercial".

12 In this view of the matter, it is clear that the impugned is

liable to be set aside. There was no violation of the terms of the

lease deed. The use of the premises by the plaintiff was a

residential use for the paying guests where the food was not being

served; it did not amount to a commercial user. There being no

violation of the terms of the lease deed, the impugned notice dated

09.12.1983 is an illegality.

13. Admittedly the plaintiff had applied for permission to use the

premises as guest house. It is contended by the learned counsel

for the appellant that this was by way of an abundant pre-caution

as the plaintiff being a law abiding citizen did not wish to

contravene any provision of law. The case of the plaintiff was also

not covered by the notification dated 7.5.1999 (Ex.PW-2/1)

whereby certain colonies in Delhi were permitted user of guest

house. Safdarjung Enclave does not fall in that category. Be that

as it may, since on the factual scenario the case of the plaintiff

does not amount to a violation of the terms of the lease and the

premises being continued to be used for a residential purpose (as

the guest house was not serving any food and not having any

eating joint therein) the protection of the notification dated

7.5.1999 is not necessary as the user by the plaintiff of the

disputed premises was residential only.

14. Learned counsel for the respondent has pointed out that the

impugned judgment has also noted that a suit in the present form;

i.e. a suit for injunction is not maintainable as the averment in the

plaint show that although it has been described as a suit for

injunction yet it is in fact a suit seeking prayer of declaration and

the suit had been dismissed on the ground of maintainability as

well.

15. The impugned judgment had returned this finding in para 12;

it reads as follows:

"12. It has been further argued by Ld. Counsel for the appellants that Ld. Civil Judge has committed error in holding that the plaintiffs/appellants should have challenged the order of the Lease Administrative Officer by way of suit of declaration. Counsel for the defendant/respondent argued that suit of the plaintiff was not maintainable as the plaintiff got relief of declaration under the garb of suit for injunction. On perusal of the trial court record, I find that plaintiff/appellant has sought

relief of permanent injunction without seeking relief of injunction. Therefore, suit is not maintainable and it is further held that the impugned judgment is beyond any error or mistake."

16. On behalf of the appellant, it is submitted that a suit in the

present form is maintainable. For this proposition reliance has

been placed upon a judgment reported in 141 (2007) DLT 822

Modi Rubber Ltd. Vs. Guardian International Corp.

17. Averments in the plaint have been perused. Prayer in the

present plaint reads as follows:

"the defendant be restrained from taking possession of the plot of land together with complete structure standing thereon from the plaintiffs and the defendant be restrained from making that re-entry in the said premises."

This was a suit simplicitor for injunction with a prayer that

the defendant be restrained from making a re-entry in the said

premises. The prayer made in the prayer clause clearly shows that

there is no relief of declaration which has been sought. Even

otherwise this is not one of the substantial question of law which

has been formulated by this Court on 18.8.2008. This court sitting

in second appeal has to answer only the substantial questions of

law which have been framed by it.

18. In view of the aforenoted discussion, the substantial

questions of law are answered accordingly in favour of the

appellant. Appeal is allowed. The suit of the plaintiff stands

decreed.

CM Nos.16452/2006 & 16454/2006

Dismissed being infructuous.

INDERMEET KAUR, J.

APRIL 6, 2011 nandan