Ramesh Ahuja & Ors. vs Dda & Anr.
2011 Latest Caselaw 4854 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Date of decision: 29th September, 2011

+                                    W.P.(C) 7244/2011

%          RAMESH AHUJA & ORS.                               ...Petitioners
                       Through:             Mr. R.K. Saini & Mr. Sitab Ali
                                            Chaudhary, Advs.

                                         Versus
           DDA & ANR.                                           ..... Respondents
                              Through:      Mr. Rajiv Bansal, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.         Whether reporters of Local papers may              Not necessary
           be allowed to see the judgment?

2.         To be referred to the reporter or not?             Not necessary

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

RAJIV SAHAI ENDLAW, J.

1. The petition, impugns (i) the demand dated 23.03.2011 of the

respondent DDA of `76,71,706/- as Permission Fee (PF) for converting the

leasehold rights in the land underneath property No.18, Bhera Enclave,

Paschim Vihar, New Delhi into freehold; (ii) the order dated 22.09.2011 of

the respondent DDA rejecting the representation of the petitioners against

the said demand; and (iii) seeks mandamus commanding the respondent

DDA to convert the leasehold rights underneath the land aforesaid into

freehold without insisting upon the payment of `76,71,706/- aforesaid.

2. As far as the challenge by the petitioners to the demand dated

23.03.2011 is concerned, the petitioners had earlier preferred W.P.(C)

No.2790/2011 challenging the same. However, the petitioners in the said

writ petition agreed that they will make a representation before the

respondent DDA against the said demand and the said writ petition was

disposed of on 29.04.2011 with a direction to the respondent DDA to

dispose of the said representation to be made by the petitioners and liberty

was given to the petitioners to assail the order on the representation, if

aggrieved therefrom, in accordance with law. Thus, what is for

consideration today is the order dated 22.09.2011 of the respondent DDA.

3. The perpetual sub-lease of the land aforesaid was granted originally in

favour of one Mr. K.L. Kapoor on 30.01.1979. The said Sh. K.L. Kapoor is

claimed to have agreed to sell the said plot of land in favour of petitioners

No.1 to 3 and appointed their father petitioner No.4 as his attorney. The

petitioners claim to have entered into possession of the said land in

pursuance to the said Agreement to Sell and raised construction thereon;

they, on 23.05.1992 let out the basement and ground floor of the said

construction to Allahabad Bank.

4. The petitioners admit that the respondent DDA in December, 1992

itself served a notice to show cause for non conforming use of the premises.

Though the petitioners have chosen not to file the copy of the perpetual lease

before this Court but it is obvious that the lease was granted for use of the

land and construction thereon for residential purpose only and use of the

basement and ground floor of the premises for banking purpose was in

contravention of the terms and conditions of the lease.

5. Upon promulgation by the respondent DDA in or about the year 1993

of the Scheme for conversion of leasehold rights into freehold, the

petitioners in the year 1994 applied therefor. The petitioners also claim to

have in the year 1996 issued notices to the Bank referring to the notices of

the respondent DDA averring the use of the premises by the Bank to be in

contravention of law. The petitioners however claim to have instituted a suit

for eviction of the Bank from the premises only in the year 2003 and which

was decreed in the year 2006 and the Bank vacated the premises on

31.05.2007.

6. The petitioners claim that the conversion of the leasehold rights into

freehold was held up till the vacation of the premises by the Bank. They

further claim to have on 19.08.2008 applied to the respondent DDA for

permission for opening a Bank in the said premises.

7. The respondent DDA, as foresaid, on 23.03.2011 demanded

`76,71,706/- as PF and `34,698/- as Misuser Charges as a pre-condition for

conversion to freehold. The petitioners though showed willingness to pay

the misuse charges of `34,698/- but contending that the demand for PF was

unwarranted under the lease and under the Policy of the respondent DDA for

conversion of leasehold rights into freehold, filed W.P.(C) No.2790/2011

aforesaid.

8. The respondent DDA, in the order dated 22.09.2011 on the

representation made by the petitioners in pursuance to the order in the earlier

writ petition, has recorded that show cause notices for misuse of the

premises as a Bank dated 22.05.1995 and 26.08.1996 also were issued but

remained unreplied; that the petitioners were also prosecuted under Section

29(2) of the Delhi Development Act, 1957 and in which it was held that the

petitioners had permitted the Bank to use the premises for non conforming

use in contravention of the Master Plan of Delhi-2021; that apart from the

banking activities, a Motor Driving School was also running in the

basement; that as per the guidelines framed by Ministry of Urban

Development, Government of India for running banking / nursing home in

non conforming areas and misuse Policy of the respondent DDA, a sum of

`34,698/- towards misuse charges and a sum of `76,71,706/- towards PF

(composition fee on account of non conforming use) was worked out and

demanded.

9. The respondent DDA had, in response to the queries of the petitioners

as to the basis of the claims aforesaid, supplied to the petitioners the

calculation of misuse charges and PF. The said calculations are filed by the

petitioners as Annexure P-18 to the petition. While the misuse calculation

shows the claim for misuse charges of `34,698/- as on account of misuse of

an area of 24. sq. ft. from 26.05.1993 to 25.05.1998, the PF calculation

shows the claim of `76,71,706/- to be for misuse for the period 23.05.1992

to 31.05.2007 by the Bank of a total area of 3100 sq. ft. in the property.

10. Though the counsel for the petitioners has contended that the

respondent DDA has not disclosed as to on what account PF has been

claimed but in my view it is abundantly clear from the calculations aforesaid

furnished to the petitioners in June, 2011 and the order dated 22.09.2011 that

though called / termed PF, the claim is for nothing else but charges /

composition fee for misuse of the property by the Bank. The argument of

the counsel for the petitioners that in the demand dated 22.03.2011, the

nomenclature used is of PF and the respondent DDA could not in

calculations supplied in June, 2011 describe the same as misuse charges /

composition fee is today irrelevant after the petitioners had in the earlier writ

petition agreed to make a representation and to invite an order thereon. The

disclosure made by the respondent DDA in pursuance to the representation

so made by the petitioners clearly demonstrates the nature of the claim,

though titled as PF, to be on account of misuse of the property by the Bank.

The challenge thus now by the petitioners to the said demand has to be

considered as to misuse charges / composition fees.

11. Attention of the counsel for the petitioners is invited to the judgment

dated 10.08.2011 of this Court in W.P.(C) No.6678-81/2005 titled Satya

Mohan Sachdev Vs. UOI. The challenge therein also was to a demand for

misuse charges as a pre-condition for conversion of the leasehold rights into

freehold. In the said judgment perpetual sub-lease executed by the

respondent DDA with respect to a plot of land in the residential colony of

Safdarjung Development Area was considered. Though the petitioners

herein as aforesaid have not produced the perpetual sub-lease of their plot

but I have no reason to believe the same to be any different. It was found

that the said perpetual lease permitted only a residential building for a

private dwelling on the land of which perpetual sub-lease was granted,

prohibited use of the land or building thereon for any trade or business and

further provided that use other than as a private dwelling may be allowed by

the respondent DDA as lessor on the terms and conditions which it may in

its absolute discretion impose including payment of additional premium or

additional rent; the perpetual sublease though provided for re-entry, entitled

respondent DDA to in its discretion condone the breaches upon payments as

it may determine. It was thus held that the respondent DDA was entitled to

levy and demand misuse charges and particularly as a condition for

conversion of leasehold rights into freehold. It was further held that the

perpetual sub-lease provided for arbitration and the dispute if any as to

whether there was any misuse and as to what were to be the charges payable

therefor has to be settled by way of arbitration.

12. Attention of the counsel for the petitioners is also invited to judgment

dated 06.09.2011 in W.P.(C) No.6513/2011 titled Vikramaditya Bhartia Vs.

DDA also in this respect.

13. The counsel for the petitioners at this stage states that since the

petitioners have preferred the petition without comprehending the demand of

`76,71,706/- being for misuse by the Bank and treating the same as PF, no

challenge to the demand as for misuse charges has been made in the present

petition. He seeks to withdraw this petition with liberty to file afresh

challenging the demand as for misuse charges.

14. Though the petitioners have in the petition also referred to the recent

judgment dated 15.03.2011 of the Apex Court in Special Leave Petition (C)

No.27278/2009 titled DDA Vs. Ram Prakash (2011) 4 SCC 180 but the

position therein is found to be different. However, since the petitioners are

seeking to withdraw the petition, need is not felt to deal in detail with the

said aspect.

15. The petition is dismissed as withdrawn with liberty aforesaid. No

order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) SEPTEMBER 29, 2011 'gsr' (corrected and released on 13.10.2011)