Shri Mohan Prakash Gupta vs Dda & Anr.
2011 Latest Caselaw 3843 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI

                          Judgment delivered on: 09.08.2011

           +W.P.(C) No.426/2007 and C.M.No.22161/2010


Shri Mohan Prakash Gupta                   ......Petitioner

                      Through: Mr.P.Chakraborty, Advocate.

                          Vs.

DDA and Another                           ......Respondents

                      Through: Mr.Ajay Verma, Advocate for DDA.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may
    be allowed to see the judgment?           Not necessary


2. To be referred to Reporter or not?         Not necessary


3. Whether the judgment should be reported
    in the Digest?                            Not necessary


KAILASH GAMBHIR, J.Oral :
*

1 By this petition filed under Articles 226 of the

Constitution of India, the petitioner seeks to challenge the

orders dated 12.10.2006 passed by the learned Estate Officer

thereby directing eviction of the petitioner from the premises

bearing No.13, Printing Press Complex, Wazirpur Industrial

Area, New Delhi in terms of Sub Section 1 of Section 5 of the

Public Premises (Eviction of Unauthorized Occupants) Act,

1971 and order dated 20.12.2006 passed by the learned Addl.

District Judge whereby the appeal filed by the petitioner

under Section 9 of the Public Premises Act challenging the

order of the Estate Officer was dismissed.

2. Brief facts relevant for deciding the present

petition are that the petitioner was allotted a plot bearing

bearing No.13, Printing Press Complex, Wazirpur Industrial

Area, measuring 913.5 sq. mtrs. on 31.10.1995 for a

consideration of Rs.40 lacs by the respondent-DDA and a

perpetual lease deed for the said plot was executed by the

DDA in favour of the petitioner vide lease deed dated

22.12.1995. The said plot allotted in favour of the petitioner

was in industrial area and in terms of Clause-II(12) of the

lease deed the petitioner as a lessee could use the same only

for carrying on the manufacturing process of running an

industry as per MPD-2001 or such other manufacturing or

industry as modified from time to time in the said Printing

Press Complex. In the year 1999, the petitioner started

running a banquet hall on the said plot without seeking any

prior permission from the respondent-DDA to start such

banquet hall in clear contravention of the terms of the lease

deed and in violation of the MPD-2001. That because of this

violation made by the petitioner, his lease was cancelled by

the DDA on 20.07.2000 and the order of cancellation was

duly intimated by the respondent-DDA to the petitioner vide

their letter dated 11.09.2000. The said order of cancellation

was challenged by the petitioner on 04.10.2000 by filing an

appeal/representation before the Lt. Governor of Delhi and

the said appeal/representation filed by the petitioner was not

acceded to. This cancellation of the lease of the petitioner

then led to the initiation of eviction proceedings by the Estate

Officer under Section 5(1) of the Public Premises Act

(Eviction of Unauthorized Occupants) Act, 1971, which

ultimately led to the passing of an eviction order by the

Estate Officer on 12.10.2006. The said order of the Estate

Officer dated 12.10.2006 was challenged by the petitioner by

preferring an appeal under Section 9 of the Public Premises

Act and the said appeal filed by the petitioner was dismissed

by the learned Addl. District Judge vide order dated

20.12.2006. Feeling aggrieved with the said two orders, the

petitioner has preferred the present petition.

3. The main grievance raised by the petitioner in the

present petition is that the petitioner has already paid an

amount of Rs.73,96,610/- on 01.04.2010 to the MCD vide

receipt No.AE 2803 towards regularization of the misuse of

the said plot by the petitioner. The contention of counsel for

the petitioner is that once the petitioner has already paid

misuse charges, therefore, the petitioner is entitled for the

restoration of the lease and the action taken by the

respondents to seek eviction of the petitioner on the said

ground of misuse has become infructuous. Counsel for the

petitioner also submits that the respondent-DDA cannot take

a plea that acceptance of the said misuse charges by the

MCD does not concern the DDA as the MCD and DDA both

are the agencies of the Central Government to implement

the policies of the Government and also the guidelines laid

down in the Master Plan. Counsel for the petitioner has also

placed reliance on the notification dated 7.9.2006 issued by

the Ministry of Urban Development, Government of India

wherein in para 10.7 it was clearly provided that the banquet

hall shall be permissible only in industrial area and

commercial area and not in the residential use zone. Counsel

also submits that although some doubts still persisted that

whether the said notification dated 7.9.2006 would take

effect from the date when the MPD 2001 came into force i.e.

in 1990 or from 28.03.2006 when the modification was made

in the said Master Plan, but there was no basis for such

doubts as the modification necessarily was to take effect from

the date when the MPD-2001 came into existence, in view of

the fact that the Hon'ble Supreme Court had permitted

continuation of existing mixed land use in the commercial

areas subject to payment of conversion charges.

4. The present petition is strongly opposed by

Mr.Ajay Verma, counsel representing the respondent-DDA.

Counsel submits that the allotment in favour of the petitioner

was made by the DDA subject to certain terms & conditions

contained in the said lease deed and in terms of Clause-II(12)

the petitioner was required to use the plot strictly for

running a industry as per MPD-2001 as modified from time

to time in the said Wazirpur Printing Press Complex and

violating the said terms of the lease deed, the petitioner

illegally opened a banquet hall in the said premises. The

contention raised by counsel for the respondent is that this

Court in exercise of its writ jurisdiction is examining the

correctness and validity of the orders passed by the learned

Estate Officer and also by the Appellate Court and going by

this premise, the counsel for the petitioner has failed to point

out any illegality or perversity in the orders passed by the

Courts below. Counsel also submits that the jurisdiction of

the Estate Officer is limited as after the termination of the

lease deed of the petitioner, it was not within the domain of

the Estate Officer to have gone into the issue of correctness

of the termination of the lease of the petitioner, more so

when the petitioner did not seek any remedy to challenge the

said termination of his lease by the DDA which order was also

confirmed by the Hon'ble Lt. Governor of Delhi after the

rejection of the appeal/representation filed by the petitioner.

5. I have heard learned counsel for the parties at

considerable length and gone through the records.

6. It is not in dispute between the parties that the

petitioner was allotted a plot by the respondent-DDA vide

perpetual lease deed dated 22.12.1995. It is also not in

dispute that the said plot was an industrial plot and in terms

of Clause-II(12) of the lease deed, the petitioner was to use

the said plot for the purpose of carrying on manufacturing

process by running an industry as per MPD-2001 or as

modified, but in clear violation of the said terms of the lease

deed, the petitioner on his own without seeking any prior

permission from the respondent-DDA, opened a banquet hall

in the said premises. For better appreciation, Class-II(12) of

the lease deed is reproduced as under:-

(12). The Lessee shall not without the written consent of the Lessor use or permit to be used, industrial plot and in any building thereon for resident or for carrying on any trade or business whatsoever or use the same or permit the same to be used for any purpose other than that of carrying on the manufacturing process of running the industry of as per MPD 2001, as modified, Wazirpur Printing Press Complex......................................................................................................... .................................................................................... or such other manufacturing or industry as may be approved from time to time by the Lieutenant Governor or do or suffer to be done therein any act or thing whatsoever which in the opinion of the Lessor may be nuisance, annoyance or disturbance to the Lessor, and persons living in the neighbourhood.

PROVIDED that, if the Lessee is desirous of using the said Industrial plot or the building thereon for a purpose other than that of the manufacturing process or industry as may be approved from time to time, the Lessor may allow such change of user on such terms and conditions, including payment of additional premium any additional rent as the Lessor may in his absolute discretion determine."

7. It is also an admitted case between the parties

that as per the said MPD-2001 also the petitioner could not

have opened the said banquet hall on an industrial plot. It is

also not in dispute that due to the violation of the said clause

of the lease deed and the MPD-2001, the lease of the

petitioner was cancelled by the DDA, after show cause

notices dated 5.8.99 and 6.4.2000 were issued by the

respondent-DDA in this regard calling upon the petitioner to

make the payment of the misuse charges. The

representation/appeal filed by the petitioner against the said

order of cancellation was also not acceded to by the Hon'ble

Lt. Governor of Delhi and no remedy against the said

cancellation order was taken by the petitioner any further,

thus allowing the said decision of the DDA to become final. It

is only after the determination of the lease of the petitioner,

the Estate Officer initiated eviction proceedings against the

petitioner under Section 5(1) of the Public Premises Act. The

Estate Officer in the said order dated 12.10.2006 clearly

observed that after cancellation of the lease of the plot in

question, Shri Mohan Prakash Gupta and Shri Surender

Prakash Gupta i.e. the lessees of the plot are in unauthorized

use and occupation of the said plot in question and as such

they are liable to be evicted therefrom. The learned Estate

Officer further observed that as far as notification of the DDA

is concerned, point No.4 of the notification dated 7.9.2006

clearly mentions vis "the following modifications in the said

Master Plan for Delhi-2001 with effect from the date of

publication of this notification in the Gazette of India" and

hence the Estate Officer further observed that it is clear that

point 10.7.4 is to guide the future development of Delhi and it

cannot be applied for the violations committed by the

respondent earlier. In the penultimate paragraph, the Estate

Officer further observed that I am fully satisfied that the

lease of the plot in question has been cancelled and has yet

not been restored in favour of the respondent or anybody else

and after cancellation of the lease of the plot in question the

respondent or whosoever else is in unauthorized use and

occupation of the said premises is liable to be evicted. The

learned Appellate Court in para-5 of its order also clearly

held that the benefit of notification dated 7.9.2006 cannot be

given with retrospective effect to a person who has violated

the terms and conditions of the lease since the year 1999

when the first report of misuse was filed with the DDA. The

respondent-DDA in the reply-affidavit to the additional

affidavit filed by the petitioner, after referring to MPD-2021,

has taken a stand that the draft regulations of the MPD-2021

have been sent to the Ministry of Urban Development for

approval and the same have yet not been approved and,

therefore, as on date it cannot be said that the banquet hall

can be allowed on an industrial plot. The stand taken by the

respondent-DDA in the reply-affidavit is that the draft

regulations sent by the Planning Committee of the DDA

provides "For industrial plots to be used, as Banquet hall, the

minimum road width shall be 12m ROW." and therefore in

the absence of any specifications/regulations approved by the

Ministry of Urban Development, the banquet hall cannot be

permitted in the industrial premises as in the MPD-2010 the

same can be permitted only subject to specifications/

regulations as may be prescribed along with conversion

charges. With the said specifications/regulations not being in

place, the respondent-DDA also took a stand that the

payment having been made by the petitioner to the MCD is of

no consequence. The respondent-DDA also took a stand that

it was the DDA who could have regularized the misuse on the

payment of conversion charges and the same could have been

done only after specifications/regulations were approved by

the Ministry of Urban Development and not in the absence of

the same. No counter argument was advanced by counsel for

the petitioner to rebut the said stand taken by the

respondent-DDA and, therefore, this Court cannot take a view

that the payment towards the misuse charges was rightly

made by the petitioner to the MCD or the same was legally

accepted by the MCD. In any case, MCD is not a party before

this Court, and this Court is only concerned with the

correctness, legality and validity of the orders passed by both

the Courts below.

8. As already discussed above, the petitioner had

clearly violated the terms & conditions of the lease deed and

also the MPD-2001, which act on the part of the petitioner

led to the cancellation of the lease deed whereafter

proceedings under Section 5(1) of the Public Premises Act

were rightly and correctly initiated by the Estate Officer.

9. In the light of the above, this Court does not find

any infirmity, perversity or illegality in the orders passed by

both the Courts below and the same are accordingly upheld.

10. There is no merit in the present petition and the

same is hereby dismissed with no order as to costs.

KAILASH GAMBHIR, J AUGUST 16, 2011 dc