Delhi High Court
Darshan Kaur vs Union Of India & Anr on 14 November, 2018
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: July 31, 2018
Judgment delivered on: November 14, 2018
+ W.P.(C) 5022/2016, CM No. 20973/2016
DARSHAN KAUR ..... Petitioner
Through: Mr. Rajesh Yadav, Ms. Ruchira Arora,
Mr. Dhananjay Mehlawat
versus
UNION OF INDIA & ANR ..... Respondents
Through: Ms. Monika Arora, CGSC with Mr.
Harsh Ahuja & Mr. Santosh Kumar
Pandey, Advs. & Mr. Abhishek
Biswas, Dy. L&DO
CORAM:
HON'BLE MR JUSTICE V. KAMESWAR RAO
JUDGMENT
V. KAMESWAR RAO, J
1. The present petition has been filed by the petitioner with the following
prayers:
"It is, therefore, most respectfully prayed that this Hon‟ble
Court may kindly be pleased to issue:
(a) a writ of certiorari or any other appropriate, writ, order
or direction in the nature thereof thereby quashing the
demand letter dated 23.02.2015, bearing demand
ID:6748, raising a demand of Rs.2,72,28,392/- (Rupees
Two Crores Seventy Two Lac Twenty Eight Thousand
and Three Hundred Ninety Two Only), towards alleged
misuse charges in respect of property No. 39 (10),
Diplomatic Enclave, known as 10, Sardar Patel Marg,
New Delhi and for quashing the further communication
dated 04.05.2016, bearing No.L&DO/L-
IV/9/39(10)DE/96, rejecting the representations of the
petitioner dated 24.03.2016 and 30.03.2016 and
sustaining the demand raised vide office letter / demand
notice dated 23.02.2015 and directing the petitioner to
make the payment of the determined amount, vide office
letter dated 23.02.2015, with interest @ 10% per annum,
upto the date of the payment within 15 days from the date
of issue of the said letter dated 04.05.2016 and that
failing which the conversion application of the petitioner
will be rejected and the action under the terms of the
lease will be initiated without further reference to the
petitioner; and
(b) a writ of mandamus or any other appropriate, writ,
order or direction in the nature thereof thereby directing
the Respondents to convert the property No.39 (10),
Diplomatic Enclave, known as 10, Sardar Patel Marg,
New Delhi from leashold to freehold and execute and get
registered the conveyance deed in favour of the
petitioner, as the petitioner has already deposited the
required sum of Rs.45,18,000/- vide Challan dated
30.03.2011;
(c) a writ of mandamus or any other appropriate writ, order
or direction in the nature thereof thereby directing the
Respondents to apply Clause (i) of the Office Order No.
29/83 dated 08.09.1983 and declare that no misuse
charges are payable by the Petitioner or in the
alternative to apply the Office Order No. 23/1976 dated
31.03.1976 and levy token penalty @ 1% of the misuse
charges, only;
(d) Any other or further order which this Hon‟ble Court may
deem fit and proper in the facts and circumstances of the
case be passed in favour of the petitioner.
(e) Award cost of the proceedings to the petitioner.
2. The grievance of the petitioner is mainly that the respondents, while
dealing with the petitioner's application for conversion of her property from
leasehold to freehold, have raised a demand of `2,72,28,392/- towards misuse
charges, penalty on misuse charges, revised ground rent and interest on
previous damage charges in respect of her property being No. 39 (10),
Diplomatic Enclave, also numbered as 10, Sardar Patel Marg, New Delhi.
The petitioner ultimately seeks conversion of her property from leasehold to
freehold, and the consequent execution of a conveyance deed to that effect.
3. It is the case of the petitioner that the said demand has been raised in
total disregard of certain office order(s) passed by the respondents
themselves, according to which the petitioner would not have been liable to
pay any such demand, and in any case, even if any misuse was admitted by
the petitioner, she would be liable to pay only a negligent sum in terms of the
said office order.
4. The petitioner states that she became the perpetual lessee of the
property in question vide perpetual lease deed executed in her favour on July
23, 1962, and registered with the Sub-Registrar, New Delhi on December 27,
1962. The property consists of ground, first and barsati floors. It is stated that
the ground floor of the property was let out by the petitioner, to the
Government of Lebanon, through its Ambassador, with effect from March
01, 1968. It is the case of the petitioner that clause 9 of the said lease deed
clearly stipulated that the lessee, i.e. Government of Lebanon, would not use
the leased premises for any purpose in contravention of the terms of the
perpetual lease granted to the petitioner, and that if on account of any
contravention on the part of the lessee, the petitioner suffered any damage or
penalty, the lessee (Govt. Of Lebanon) would be liable to reimburse the
same.
5. It was on February 20, 1968 that the Ambassador of Lebanon informed
the respondents that the Embassy was planning to use the premises in
question (being leased by the Embassy) for cultural purposes, and that the
area which would be consecrated to consular section would occupy less than
25% of the total area.
6. It was on October 14, 1968 that the petitioner received a letter from the
respondents informing her that upon inspection of the subject premises, it
was found that the entire ground floor was being used as office by the
Embassy of Lebanon, and that the said usage was in contravention of terms
of the perpetual lease granted in favour of the petitioner. The petitioner was
therefore asked to pay additional charges for having committed the said
breach, and also to remedy it within 30 days.
7. The Protocol Division, Ministry of External Affairs, being of the
opinion that the premises in question would be exempted from levy of
additional ground rent on account of alleged misuse, requested the office of
the Deputy Land and Development Officer to confirm the said opinion in
terms of their own office order being D.O. letter No. 464 (12-DIII)/62, dated
April 15, 1969. It was also stated in the said communication that only upon
receiving such confirmation from the respondents herein, would the Ministry
of External Affairs confirm to the Embassy that the claim for payment of
additional charges stood withdrawn.
8. It is the case of the petitioner that subsequently, vide letter dated July
16, 1969, the Ambassador of Lebanon informed the petitioner that the Chief
of Protocol Division, Ministry of External Affairs had conveyed to her,
confirmation from the respondents herein, to the effect that the subject
premises did not attract levy of additional ground rent for change of purpose
since only 22% of the total area of the tenanted premises had been used for
Chancery. It is her case that it was only on this premise that the petitioner's
tenant continued with the alleged usage on the subject premises, and the lease
between the petitioner and the Embassy of Lebanon was renewed for further
period of 3 years with effect from January 01, 1985.
9. It is further stated that the petitioner again received a letter from the
respondent on April 16, 1987, alleging that the subject premises is / was
being used by the Embassy of Lebanon as offices for its Chancery and
cultural affairs, for the last 16 years. The petitioner was therefore, once again,
called upon to pay the consequent misuse charges, and to remedy the
breaches within a period of 30 days. In terms thereof, the petitioner called
upon the tenant to stop the alleged misuse. It was finally through a legal
notice dated November 02, 1989 that the petitioner terminated the tenancy,
and called upon the tenant to handover possession of the subject premises.
Having obtained permission from the Govt. Of India, under Section 86 of the
CPC, the petitioner also filed a suit for possession, arrears of rent and mesne
profits against the Embassy of Lebanon.
10. It was stated by the petitioner that from the inception of tenancy itself,
the defendant therein had been using the subject premises as an office of the
Embassy, in violation of express terms of the perpetual lease deed. It was
further stated therein, that the defendant / tenant was repeatedly informed of
the violation and asked to stop the misuse, but to no avail. It was also
mentioned that the continued misuse on part of the defendant / tenant had left
the petitioner exposed to threat of penalty, prosecution and re-entry.
11. In the written statement, the defendant / tenant stated that the subject
premises were used as Chancery Office of the Embassy for the purpose of
cultural and technical missions and programmes for the members of the staff
of the Mission, and that the terms of the lease had not been contravened.
12. The said suit was decreed in favour of the petitioner vide judgement
and decree dated October 07, 1999. The defendant's / tenant's appeal before
this court, and then SLP before the Supreme Court were dismissed. It was
subsequently on March 20, 2002, the Ambassador of Lebanon informed
NDMC about the shifting of the mission to a new address with effect from
March 25, 2002, and a request was also made to take readings from
electricity meters, and to transfer the same in name of the petitioner herein,
and further to convert the connections from commercial to domestic category.
Possession of the subject premises was handed over to the petitioner on April
08, 2002, and the same was also informed to the Secretary, NDMC vide letter
dated April 12, 2002, further also adding that they undertook to pay all
outstanding dues of bills of electricity, water etc.
13. It is stated that the petitioner, vide her letter dated October 12, 2002,
addressed to the Assistant Secretary (Taxes), NDMC, informed about the
taking over of possession of the property, and also filed the returns under
Section 77, NDMC Act, wherein it was mentioned that the house was entirely
self-occupied from 2002, and that previously only the ground floor was let
out on rent. Subsequently, the petitioner also deposited a sum of
Rs.45,18,000/- vide challan dated March 30, 2011, seeking conversion of the
property from leasehold to freehold.
14. It is the petitioner's case that a demand letter dated July 26, 2012 was
issued to the petitioner, by the Deputy L&DO, Land and Development
Office, in the sum of Rs. 3,99,71,655/- on account of misuse charges from
February 29, 1968 to June 16, 2011; damage charges for unauthorised
construction from June 17, 2011 to January 14, 2013; and revised ground rent
(balance) from December 10, 1982 to December 09, 2012, subject to
payment of which, the application for conversion would be considered.
15. Vide her response, dated August 23, 2012, the petitioner stated that no
misuse charges were payable on account of the property being occupied by
the Ambassador of Lebanon, and that from April 08, 2002, it was self
acquired (sic) (self occupied). The petitioner additionally requested for two
months' time to file an adequate reply to the aforesaid demand notice, as she
had sought certain documents under the RTI Act. The application under the
RTI Act was, however, made only on September 24, 2012. And vide
response dated October 08, 2012, by the CPIO/Dy. L&DO, copies of the
following letters/documents were provided to the petitioner:
(i) letter dated 20.02.1968 of Mr. Mahmoud Hafez, Ambassador of
Lebanon to Land and Development Officer stating that the Embassy is
planning to use it for its cultural needs and that the area which will be
consecrated to the Consular Section and will occupy less than 25% of the
total area and that as per his understanding it will not occasion any special
taxation due to the use of the premises, as mentioned.
(ii) letter dated 01.05.1968 of Shri Jamiatrai Gobindram, Assistant
Settlement Commissioner, Land and Development Office to the Embassy of
Lebanon requesting the Embassy to furnish information regarding
particulars of the accommodation to be used for cultural activities; date from
when it has been proposed to be used and copy of rent deed, if any executed.
(iii) letter dated 14.10.1968 of Shri Shital Prasad, Deputy Land and
Development Officer to the Petitioner regarding contravention of Clause
III(7) of the perpetual Lease Deed on account of the entire ground floor
being used as office by Embassy of Lebanon.
(iv) letter of June 1969, issued by Shri B.S. Puri, Attaché (Protocol),
Ministry of External Affairs to Shri Shital Prasad, Deputy Land and
Develiopment Officer, after referring to the letters of Shri Rajagopalan dated
15.04.1969 and subsequent letter of Shri B.S. Puri dated 22.04.1969,
regarding 10, Sardar patel Road, under occupation of Embassy of Lebanon,
asking him to confirm that the said premises does not attract levy of
„additional ground rent‟ for „change of purpose‟.
16. Following an appeal before the Central Information Commission, the
petitioner was also provided a copy of the letter dated 11.06.1969 (should be
11/06/1965) written by the Dy. L&DO, to the Attache (Protocol), Min. Of
External Affairs.
17. It is stated in the petition that the petitioner thereafter filed a detailed
reply to the said demand notice, therein taking the following stand:
(a) There is no unauthorized construction, therefore, the demand
on account of damage charges for unauthorized construction, in a
sum of Rs.8,906/-, is not payable. However, be that as it may, so far
as the damage charges are concerned, the petitioner, without
prejudice to her contentions that it is not payable by her, paid the
said amount of Rs.8,906/-.
(b) So far as the demand raised for revised ground rent
amounting to Rs.1,09,680/- was concerned, it was stated that the said
amount has already been paid by the petitioner. The details of the
said payments were given as under:-
CHEQUE ENCASHED AMOUNT PERIOD
NO. ON
245879 03.10.2005 77,690 Jan 1982 To Dec 2005
803247 06.01.2006 4,570 Jan 2006 To Dec 2006
557211 06.01.2007 4,570 Jan 2007 To Dec 2007
917845 04.01.2008 4,570 Jan 2008 To Dec 2008
933327 09.01.2009 4,570 Jan 2009 To Dec 2009
688272 07.01.2010 4,570 Jan 2010 To Dec 2010
688305 06.01.2011 4,570 Jan 2011 To Dec 2011
688347 30.04.2012 4,570 Jan 2012 To Dec 2012
(c) The demand of misuse charges is wholly illegal and is not
liable to be paid by the petitioner as there was no misuse of the said
premises / property by the petitioner in any manner.
(d) In view of specific clause in the Lease Deed between the
petitioner and the Govt. of Lebanon, it was mentioned that the Lessee
will not use the premises in contravention of the clauses of
Agreement for Lease and Perpetual Lease and if any taxes, penalty
or losses are suffered, the same shall be liable to be paid by the
Lessee.
(e) It is though the contention of the petitioner that from perusal
of various letters inter se exchanged between the Ministry of Foreign
Affairs, Land and Development Office and Ambassador of Lebanon,
it was evident that the user of the premises does not and would not
attract the levy of additional ground rent for change of purpose,
since only 22% of the area was being used for cultural activities.
There was, thus, no misuser of the property and even if there was
some misuser it was condoned by the continued acts of inaction,
omission and commission by the Land and Development Office. It
was stated that till the demand dated 26.07.2012, no demand was
previously raised.
(f) Be that as it may, it was stated that even if there was any
misuser, it is solely attributable to the Govt. of Lebanon and
Embassy of Lebanon and such liability cannot be fastened against
the petitioner and her said property. One of the grounds of eviction
of the tenant taken by the petitioner in her suit was the continued
misuse of the said property by the tenant. The possession of the said
property was restored to the petitioner after long litigation, which
continued till the order of the Hon‟ble Supreme Court dated
22.11.2001. The possession of the tenanted premises was handed
over to the petitioner on 08.04.2002.
(g) Without prejudice to the above submissions, it was stated that
assuming there was any misuse of the said property, the same came
to an end on 08.04.2002. the impugned demand had been raised on
26.07.2012, which is more than 10 years after the alleged misuse had
ceased. The demand is patently barred by limitation and cannot be
enforced.
(h) Without prejudice to the aforesaid, it was stated that the
misuse charges are being claimed form 29.12.1968 till 16.06.2011.
The misuse charges from 08.04.2002 to 16.06.2011, in any case, are
not liable to be claimed or paid, being totally baseless as the tenant
had vacated the said property on 08.04.2002.
(i) The misuse charges are totally baseless and invalid.
(j) The alleged misuse by the tenant was without the consent of
the petitioner.
(k) It was stated that, assuming for the sake of arguments but not
admitting, that any misuse charges are liable to be paid by the
petitioner, since the petitioner had taken adequate steps to evict the
defaulting tenant and had ultimately succeeded in the same, it was a
case where the petitioner, being the landlord, was not personally
misusing the premises and took all legal steps for stopping the
misuser by the tenant. The Land and Development Office had also
issued notices of misuse and asking the tenant to stop it, but the
tenant despite such notices of L&DO and the petitioner, did not stop
the misuser. The petitioner, being the landlord, cannot be legally
held to be the defaulter. She cannot be asked to pay the alleged
misuse charges. As per Clause 8 of the Office Order No.26/81 dated
23.10.1981, only 1% of misuse charges can be levied. The said
clause reads as under:
"8. In case where the lessee / ex lessee files suit for eviction
against defaulting tenants on receipt of our notice for misuse and are
successful in evicting such tenants one per cent of the charges will be
recovered as token penalty in consultation with the Ministry of
Works and Housing and Finance."
(l) Without prejudice to the foresaid, it was stated that the
petitioner can only be asked to pay 1% of the misuse charges. The
petitioner referred the following judgments in support of her
contention:
i. 53 (1994) Delhi Law Times 342
"Birla Institute of Scientific Research vs. Union of India &
Ors.
ii. 64 (1996) Delhi Law Times 585
"Sisir Kumar Sen & Ors. vs. Union of India & Anr."
(m) In this event of the matter, the petitioner claimed that misuse
charges are not payable by her and such liability cannot be extended
against her as well as her property and that the misuse charges are
liable to be withdrawn. The petitioner stated that the revised ground
rent (balance) demand of Rs.1,09,680/-, has already been paid. The
petitioner enclosed a cheque of Rs.8,906/-, towards the damage
charges for unauthorized construction. True copy of reply /
representation of the petitioner dated 21.05.2013 is annexed as
Annexure P-38."
18. The petitioner thereafter submitted a further representation/objection
dated July 29, 2013, to the demand notice dated July 26, 2012, taking the
following stand:
(i) That in terms of Office Order No. 23/1976, dated March 31, 1976, a
premises occupied by a Foreign Mission would neither be inspected, nor
damage charges for any misuse would be issued. The premises in question
had been let out / in occupation during the period 01.03.1986 to 08.04.2002
to a foreign mission (Government of Lebanon through Embassy of Lebanon)
and thus the alleged misuse continued only during the said period and by the
said tenant. There was never any misuser by the Petitioner. The Petitioner
had to initiate proceedings for eviction of the tenant and one of the ground of
eviction was misuse of the said property by the tenant. The possession of the
said premises (ground floor) was restored to the Petitioner through the
Court. In these circumstances since the alleged misuse was by a Foreign
Mission, the Petitioner shall not be held liable to pay any misuse charges.
(ii) The levy of misuse charges, as claimed vide Demand Notice dated
26.07.2012 in respect of property bearing Plot 39/2010, Diplomatic Enclave
issued to the petitioner is, thus, bad in law and liable to be withdrawn.
(iii) That in terms of judgement of this Court in LPA No. 415/2005 Union
of India & Anr. Vs Jor Bagh Association (Regd.) & Ors., wherein the
aforesaid Office Order No. 23/1976 was also considered, the premises which
had been let out for certain duration to a Foreign Mission, should not be
assessed for misuse charges for the said period.
19. The petitioner has further stated in the writ petition that vide letter
dated November 21, 2013, written by the Dy. L&DO, she was informed that
the Office Order No. 23/76 had been superseded by Office Order No. 29/83,
dated September 08, 1983. It is the case of the petitioner that the said Office
Order, 1983, nowhere records that the Office Order, 1976 had been
superseded, and that in any case, it itself records that no misuse charges
would be levied in cases where L&DO leased premises is being used both for
residential and office purpose by an Embassy/Mission. The petitioner
thereafter made several representations for withdrawal of the Demand Notice
vide letters dated August 19, 2013, October 17, 2013, November 28, 2013,
December 10, 2013, January 20, 2014, March 20, 2014, October 16, 2014,
and November 11, 2014, reiterating the aforenoted stand. It was stated by the
Petitioner in these letters that only part of the ground floor, which was in the
tenancy of the Embassy was being used for office / cultural / chancery
purposes. The remaining part of the ground floor premises was used for
residential purposes. Reliance was placed on the office order No. 29/83 that
since the premises was being used by the Embassy of Lebanon for both
residential and cultural / chancery purposes, no notice could be taken of the
said misuse and accordingly no misuse charges are liable to be levied on the
said premises. Relying upon para 8 of the office order No. 23/76, it was
stated without prejudice to the fact that no misuse charges are leviable or
payable by the Petitioner, in case of misuse by the tenant, the landlord is only
liable to pay 1% of the misuse charges. Reliance was placed by the Petitioner
on the judgment passed by a Division Bench of this Hon'ble Court in the case
of Union of India Vs. P.R. Nair, 2012 IndLaw DEL 4210. It was also stated
that after the premises had been vacated by the tenant on 08.04.2002, the
same have been used by the Petitioner for residential purposes. The said
property is self-occupied. It was also stated that all the payments of
conversion of the property from leasehold to freehold have been made.
20. It is further stated in the writ petition that it was only through
subsequent communications dated May 22, 2015, June 18, 2015, September
17, 2015 and January 11, 2016 from the Dy. L&DO, that the petitioner was
provided with a copy of the letter dated February 29, 2012, by the Embassy
of Lebanon, wherein it was stated that the subject premises had been used
exclusively for Embassy offices and Chancery purposes. Thereafter, the
petitioner received a demand letter/notice dated February 23, 2015, from the
Dy. L&DO, raising a demand of Rs.2,72,28,392/-, on account of revised
ground rent, interest charges on previously raised damage charges, alleged
misuse charges, and penalty charges thereon.
21. It is averred that the petitioner made several representations before the
respondents, vide letters dated March 19, 2015, August 15, 2015, December
04, 2015, January 13, 2016, February 17, 2016, March 10, 2016, March 24,
2016, and March 30, 2016, wherein, by relying on relevant documents, she
reiterated her earlier stand that;
a. Only a part of the subject premises was being used by the tenant for
office purposes;
b. The premises was used for both residential as well as for office
purposes;
c. The perpetual lease deed in favour of the petitioner was with respect to
the whole property being No. 10, Sardar Patel Marg; and,
d. Apart from the ground floor, all other portions of the property were
used for purely residential purposes, also being self-occupied.
22. It is further stated that vide legal notice dated January 30, 2016, issued
by the petitioner to the Govt. Of Lebanon/Embassy of Lebanon, the petitioner
requested the Embassy to issue a letter of confirmation in terms of Clause (i)
of the Office Order No. 29/83, that the subject premises was used for
residential, as well as office/cultural purposes for the duration of February 29,
1968 to April 08, 2002, during their tenancy. In the alternative, the Embassy
was asked to deposit the entire amount, as demanded, along with penalty
charges, directly with the L&DO.
23. It is stated that subsequent to receipt of the impugned communication
dated May 04, 2016, by the Dy. L&DO, wherein the petitioner's
representations had been rejected and the petitioner was called upon to
deposit the demanded amount, failing which her application for conversion
was to be rejected, the petitioner wrote back, vide her letter dated May 09,
2016, requesting for reconsideration of the impugned demand of
Rs. 2,72,28,392/-, drawing reference to the peculiar facts and circumstances
of the case. It is stated that the said letter dated May 09, 2016 has not been
responded to, till date.
24. The respondent nos. 1 and 2 have jointly filed their counter-affidavit,
wherein it is their stand that the subject property was leased out to the
petitioner vide lease deed executed on July 23, 1962. The premises was
inspected on October 07, 1977 and it was reported that the ground floor was
occupied by the Embassy of Lebanon. The petitioner was therefore requested
by the respondents vide letter dated January 06, 1982 to intimate whether the
premises was used as residence or office by the Embassy. It is stated that the
Ambassador of Lebanon vide letter dated June 16, 1969 informed that the
L&DO had confirmed that the premises did not attract levy of additional
ground rent for change of purpose since only 22% of ground floor was used
for chancery purposes. It is their case that this was nothing but a ploy to
avoid the liability in terms of Para 2 (9) of sub-lease agreement. It is stated
that the Ambassador vide letter dated May 06, 1968 informed the respondents
that his chancery located in the subject premises had five rooms, all of which
were used for cultural activities. Consequently, five rooms at the ground
floor were found to be misused and the area worked out to 82.7% of the total
covered area of the ground floor.
25. It is stated that the premises was again inspected by the technical wing
on August 10, 1983 and July 09, 1986 and it was reported that "ground floor
is occupied by Embassy of Lebanon being used as residence and office, first
floor and barsati floor with the lessee for residence". The premises was
further inspected on December 23, 1997 and it was again reported that the
ground floor was occupied by the Embassy and was being used as office for
its chancery and cultural affairs, which was objectionable.
26. As regards the petitioner's suit for possession, arrears of rent and
mesne profits against the Embassy of Lebanon being Suit No. 376/1996, it is
stated that both, the plaintiff, being the petitioner herein and the defendant
being the Govt. of Lebanon admitted in the pleadings that the ground floor of
the subject premises was being used as an office of the Embassy / Chancery.
27. It is stated that a conversion application was received from the
petitioner on April 18, 2011 and as per policy of conversion inspection was
carried out on June 17, 2011. During the said inspection certain unauthorized
construction was found and breach notice was issued on September 18, 2012.
The file was further referred to Technical Section to work out the charges for
misuse and damages. It is in these circumstances, the demand letter dated
July 26-30, 2012 for a sum of Rs. 3,99,71,655/- for temporary regularization
of misuse and damage was issued to the petitioner.
28. The respondents further stated that in response to the aforesaid demand
letter the petitioner made a representation which was replied to vide letter
dated November 21, 2013 in which it was stated that as per office order no.
29/83 "where L&DO leased premises is used clearly for office purposes as
such by an Embassy / Mission the normal misuse charges according to the
formula adopted by the Government / L&DO will be levied on the lessee".
The matter was again examined in light of information supplied by Ministry
of External Affairs vide letter dated March 30, 2012 wherein it was stated
that only the ground floor of the subject property was leased out to the
Embassy from February 29, 1968 to April 08, 2002 for office purpose only.
Consequently, the respondents issued a revised demand vide letter dated
February 23, 2015 in terms of Clause (ii) of office order no. 29 /83.
29. It is their case that following receipt of the demand letter dated
February 23, 2015 the petitioner through her representations had sought time.
She was given an appointment during which she through her son-in-law was
heard and also reminded / requested to make payment of demanded amount
along with 10% interest per annum failing which her application for
conversion would be rejected. Consequently, the petitioner sought few
months time to get clarity from the Ministry of External Affairs, which
request was acceded to by the respondents. It was vide letter dated
September 17, 2015, that the L&DO granted the petitioner a final opportunity
to pay all government dues within a period of three months and to sort out
the matter with MEA failing which her conversion application was to be
rejected and action under the terms of the lease deed was to be initiated.
30. It is their case that vide letter dated January 11, 2016, the petitioner
was requested to meet the Dy. L&DO along with documentary proof showing
her effort to resolve the matter with MEA and the Lebanese Embassy /
Government. The petitioner made a representation only on March 30, 2016
to the Secretary (UD) wherein she raised a new issue regarding interpretation
of letter no. J-13024/1/83-LD(DI) dated September 02, 1983 from the then
Ministry of Works and Housing to the Land and Development Office. The
said representation was examined in light of two different situations
contemplated by the said policy letter namely:-
(i) where L&DO leased premises are being used both for residential and
office purpose by an Embassy / Mission no notice will be taken of the misuse
and no misuse charges etc. would be levied.
(ii) where L&DO leased premises is used clearly for office purposes as
such by an Embassy / Mission the normal misuse charges according to the
formula adopted by the Government / L&DO will be levied on the Lessee.
31. It is stated that the petitioner made interpretation of the above policy to
the effect that in both the cases "L&DO leased premises" would mean the
whole plot of land and not just a part of the built up area of the property and
that in her case there was no scope for the entire property to be used for
office purpose by a foreign mission. The petitioner had further pointed out
that only a part of the built up area had been hired by the Mission, hence the
respondent should not apply Clause (ii) as noted above since the petitioner
herself was using the first floor of the building as her own residence and it
was only the ground floor that was being used by the Mission. The petitioner
therefore sought application of Para-(i) to her case.
32. The respondent stated that vide letter dated My 4, 2016, the petitioner
was informed that the interpretation sought to be given by her was not found
correct and that it had been decided that the demand of Rs. 2,72,38,392/-
raised vide letter dated February 23, 2015 with respect to her property would
sustain. She was therefore requested to make the payment of the said
demand along with interest @ 10% per annum within 15 days. It is their case
that the impugned demand letter cannot be challenged by way of a writ
petition and that the petitioner should have filed a suit for the same.
33. It is the respondent's case that the ground floor of the subject property,
having been used as office for its Chancery and its cultural affairs by the
Embassy of Lebanon, would attract Clause (ii) of the Office Order No. 29/83
and that the petitioner is liable to pay normal misused charges according to
the formula adopted by the Government / L&DO.
SUBMISSIONS
34. Mr. Rajesh Yadav, learned counsel for the petitioner stated that in
terms of various letters issued by officials of the respondents and the Ministry
of External Affairs, it is clear that the subject premises was being used for
residential as well as office purposes by the Embassy of Lebanon. He stated
that only a part of the ground floor and not the entire ground floor was used
by the Embassy for office / chancery purposes / cultural activities and the
remaining part was used for residential purposes, however, the first and
second floor along with three servant quarters and one garage have always
been in possession of the petitioner and were used for residential purposes
only. He would also draw my attention to the counter affidavit filed by the
respondents wherein reference is made to inspection reports of the subject
premises dated August 10, 1983 and July 09, 1986 reporting that the ground
floor was being used as residence and office and that the first floor and the
barsati floor were with the lessee / petitioner and were used for residential
purposes. He, by referring to office order No. 29/83, stated that under Clause
(i) no misuse charges are liable to be paid since the premises were used by
the Lebanese Embassy for both office / cultural and residential use. Clause
(i) of the said office order is based on the provisions of Master Plan Delhi
(MPD) according to which the residential use of a premises by a foreign
mission includes cultural and recreational activities. It is his submission that
clause (ii) of the said office order does not apply to the present case and
would apply only when the subject premises are used exclusively for office
purposes.
35. It is his case that even in the alternative if for any reason Clause (i) of
office order No.29/83 does not apply to the case of the petitioner, the
respondents should have applied clause (8) of the office order No.23/76 dated
March 31, 1976 and levied a token penalty at 1% of the misuse charges since
the petitioner was successful in evicting the tenant. In this regard, he relied
on the judgment of a Division Bench of this Court in UOI vs. Jor Bagh
Association, 188 (2012) DLT 25, wherein this Court by referring to office
order No.23/76 held that the said office order brings transparency to the
manner in which the damages for condoning the breach of a condition of
lease / grant shall be determined. It is further held that where the lessee is not
at fault and it is the tenant, who commits the offending act and the lessee
resort to all means to either evict the tenant or to compel the tenant to remedy
the breach, it would be unjust on the part of the State as the lessor to penalize
the lessee for the same. It is his submission that such action by the State
against the lessee would violate the jurisprudential norm that no person can
be penalized for no fault of his own and that constructive liability cannot be
fastened except when law expressly so fastens. He also relied upon the
judgment of this Court in UOI vs. P.R. Nair (supra) decided on July 27,
2012, to submit that where the lessee files a suit for eviction against tenant
misusing the premises and is successful in such eviction the liability would
only be 1% of the misuse charges otherwise payable in accordance with the
formula laid down in office order No.23/76. It is further submitted that
clause 7 of the said office order also saves the petitioner from levy of any
misuse charges since her rental income was less than the misuse charges,
claimed by the respondents. He stated that the tenant was inducted in the
ground floor of the subject premises w.e.f. March 01, 1968 at the monthly
rent of Rs. 2,200/- and the last paid rent was Rs. 6500/-. The total rent
received by the petitioner from February 29, 1968 till April 08, 2002 was
approximately Rs.17,04,400/-. In this regard, he relied on the judgment of
this Court in Union of India vs. Satish Kumar Mehta 2017 (11) SCC 714
and 2012 SCC OnLine DEL 4052 wherein it has been held that in terms of
clause 7, of the office order No.23/76, the penalty cannot be more than the
income derived from the premises by the lessee, this on the analogy that
Order No. 23/76 is a general office order.
36. Mr. Yadav further stated that under MPD 1962, Union Territory of
Delhi was divided into 24 use zones. Zones 1 to 9 were designated as
residential zones wherein the uses permitted among others were social and
cultural institutions and neighbourhood uses including clubs and other semi
public recreational uses etc. It is his submission that MPD 1962 therefore
permitted usage of the subject premises being cultural, semi-public
recreational uses and accessory uses clearly incidental to residential use in
residential zones. The usage of the ground floor by the Government of
Lebanon for residential and cultural use as alleged was therefore permitted
under MPD 1962. He would further submit that even under MPD 1990
"foreign mission", under clause 006 of the Development Code Schedule, is
defined as a premises for the office and other uses of a Foreign mission. He
states that as regards "residential" use clause 4.02 provided for usage as a
foreign mission. The permission of use of premises for foreign mission
included housing, recreational club, cultural and informational centre.
37. It is further stated that clause 4 of the development code and clause
8(b) of MPD-2021 refers to residential use zones wherein one of the
permitted usage is "foreign mission". It is therefore, his submission that it
has been consistent policy of the Government as reflected in successive
Master Plans that the use of a premises by a foreign mission for cultural and
recreational activities is a "residential use". He would rely on (2012) 2 SCC
232 R.K. Mittal & Others vs. State of Uttar Pradesh and Others and 213
(2014) DLT 14 (DB) M.G. Ramachandran & Anr. Vs. Municipal
Corporation of Delhi & Ors. to state that Master Plan has legal sanctity and
binding effect in law and that the statutory authorities are bound to adhere to
it strictly.
38. Rebutting the respondents argument that the office order No.23/76 had
been superseded by the office order No. 29/83 Mr. Yadav would submit that
Division Benches of this Court in Jor Bag Association (supra) and P.R. Nair
(supra) considered the office order 23/76 and it was no where mentioned that
the same had been withdrawn or superseded. He would also refer to the office
order No.8/1999 dated April 06, 1999 relied upon by the respondents to state
that the said office order only issued clarification in respect of the office
order No.23/76 and nowhere does it mention that the same had been
withdrawn or superseded. It is his submission that the said office order
No.8/1999 is in fact an amendment and not a clarification wherein the
original clause 8 had been substantially altered.
39. It was his submission that since the said office order No.8/1999
introduced a new clause with effective changes which is totally different and
in conflict with the original clause 8 the same cannot have retrospective
effect but must be enforced prospectively i.e. for the period after April 06,
1999. It is therefore his case that even if the petitioner is not entitled to the
benefit of clause (i) of the office order No.29/83 then in the alternative the
petitioner would be entitled to benefit of the unamended clause 8 of the office
order No.23/76 from September 08, 1983 till April 06, 1999 and for that
period she would be liable to pay only 1% of the misuse charges and
thereafter from April 06, 1999 till vacation of the premises by the tenant on
April 08, 2002 the petitioner would be liable to in terms of office order
No.8/1999. Mr. Yadav relied upon the judgment of the Supreme Court in the
case of Union of India and Ors. vs. N.R. Parmar and Ors., 2012 (13) SCC
340 to contend that one of the essential ingredients of a clarification is that it
clarifies an unclear, doubtful, inexplicit or ambiguous aspect of an
instrument. A clarification cannot be in conflict with the instrument sought
to be clarified. A clarification does not introduce anything new to the already
existing position. So, office order No.8/99 is not a clarification but an
amendment and cannot have retrospective effect.
40. It is the case of the petitioner that after the notice dated April 16, 1987,
the petitioner obtained permission under Section 86 CPC from the Ministry
of Foreign Affairs. She terminated the tenancy of the tenant and filed suit for
possession. First suit was withdrawn due to some technical defect with
liberty to file a fresh one and ultimately after the Special Leave Petition of
the tenant was dismissed by the Hon'ble Supreme Court the tenant handed
over possession of the premises on April 08, 2002. It is, thus, clear that the
petitioner was successful in eviction of the tenant after the notice of misuse
dated April 16, 1987 was issued by the respondents.
41. It was his submission that the petitioner received the last
correspondence from the Ambassador of Lebanon annexing the letter of
Chief of Protocol dated June 16, 1969 and there was no further notice by the
respondents till April 16, 1987. It was his submission that the respondents
raised the impugned demand only on July 26, 2012 after the petitioner had
deposited a sum of Rs. 45,18,000/- for conversion of the property from
leashold to free hold. He stated that the impugned demand by the
respondents was raised on February 23, 2015, for misuse charges from
September 08, 1983 to April 07, 2002. Therefore, there was complete
inaction by the respondents in all these years. The impugned demand by the
respondents after 25 years of notice of misuse dated April 16, 1987 is barred
by limitation. He also submitted that the letter dated February 29, 2012
issued by the Embassy of Lebanon cannot be held against the petitioner in
view of three inspection reports of the respondents and the correspondence /
letter exchanged between the ambassador L&DO and Ministry of External
Affairs where it was confirmed that the premises do not attract levy of any
additional charges. In conclusion he seeks the reliefs as prayed for in the writ
petition.
42. Ms. Monika Arora, learned Counsel for the respondents justified the
impugned action, as according to her, the same was taken as there was
violation of the condition of the perpetual lease executed with regard to the
property, 10 Sardar Patel Marg between the parties. It was her submission
that in the year 1968 itself on being noticed that there are breaches of the
provisions of the perpetual lease, as the property was being used for other
than residential purposes, show cause notice was issued to the petitioner. She
stated that as the Embassy of Lebanon had represented to the respondents that
it was using less than 25% of the said premises for Consular purposes, no
extra charges should entail and that the Ministry of External Affairs also
having informed the respondents that the Embassy was using 22% of the said
premises for the purpose other than residence, the said representations were
accepted on face value, without any attempt to verify their correctness by
physical inspection of the premises. She admitted issuance of office order
No. 23/76 by erstwhile Ministry of Works and Housing, Govt. of India
wherein computation of charges in case of breaches of the perpetual lease has
been specified, wherein it is stated that in case lessee / ex-lessee files suit for
eviction against defaulting tenants on receipt of notice for misuse and are
successful in evicting the tenants, 1% of the charges will be recovered as
token penalty in consultation with Ministry of Works and Housing and
Finance. According to her the office order is not applicable to the petitioner
as the petitioner had not initiated the eviction of its tenant on account of the
breach notice, moreover in the eviction proceedings, the respondents were
never made parties to the proceedings and the petitioner has not pleaded that
due to the breach in clauses of perpetual lease the petitioner is assailing the
eviction petition. She also referred to inspection notice dated September 7,
1977 issued to the petitioner, wherein it was stated that the ground floor was
occupied by the Embassy of Lebanon, however, the property could not be
inspected in view of office order No. 23/76 dated March 31, 1976, wherein it
was stated that no inspection of the premises occupied by the foreign mission
shall be carried out. Similarly, another notice dated January 24, 1979 was
issued for inspection. It appears the same was also not carried out. She
referred to office order No. 17/82 which stipulated that the office will not
inspect any of the properties internally, it may however ascertain from name
boards and sign plates outside the properties as to whether they are being
used as residence or office. She had also referred office order No. 29/83
issued regarding the levy of misuse charges on leased residential properties
owned / hired by foreign missions in Delhi and also about the inspections
carried out on August 10, 1983 and July 9, 1986, to contend that it has come
on record that the ground floor was occupied by the Embassy of Lebanon and
was being used as offices of its Chancery and Cultural Affairs mostly dealing
with the Lebanese Students in India. According to her, on similar inspection
on March 20, 1997, it was found that the Ground Floor was occupied by the
Embassy of Lebanon and was being used as offices of its Chancery and
Cultural Affairs. During her submissions, Ms. Arora has laid much stress on
the letter of the Embassy of Lebanon dated February 29, 2012 to state that the
Embassy has clarified that between the period February 29, 1968 to April 8,
2002, the property was leased for the Embassy Offices and Chancery
purposes exclusively as the Ambassador residence was always in a different
location as it is till now. In fact, pursuant there to, even the Ministry of
External Affairs vide its letter dated March 30, 2012, addressed to the
respondents stated that the Embassy vide their note dated February 29, 2012,
clarified that during February 29, 1968 to April 8, 2002, the ground floor of
the property was leased by itself for office purposes only. According to her,
this letter of the Embassy has put to rest the issue that the Embassy had never
used the property for residential purposes, which means the Embassy having
used the same for offices purposes had changed the usage of the property
resulting in misuse charges. She also stated that the office order dated
September 08, 1983 stipulates conditions for exemption / levy of misuse
charges as under:-
(i) where L&DO leased premises are being used both for
residential and office purpose by an Embassy / Mission no
notice will be taken of the misuse and no misuse charges, etc.
would be levied;
(ii) where L&DO leased premises is used clearly for office
purposes as such by an Embassy / Mission the normal misuse
charges according to the formula adopted by the Govt./L&DO
will be levied on the lessee. The procedure to be followed for
inspection will be as laid down in the L&DO office order
No.17/1982 dated July 26, 1982.
43. She would submit that the petitioner had through her son-in-law made
a representation before the respondents as regards the demanded amount and
sought a personal hearing to explain the matter. She would draw my
attention to the respondents letter dated June 18, 2015 addressed to the
petitioner wherein pursuant to petitioner's representation three months time
was granted within which she was to make the demanded payment and sort
out the matter with the Ministry of External Affairs. She stated that several
reminders were also issued to the petitioner requesting her to make the
payment of the demanded amount along with interest of 10% per annum
failing which, her application for conversion was to be rejected.
44. It was her submission that it was only on February 17, 2016 that the
petitioner for the very first time raised the issue of implementation of office
order No.29/83 in terms of clause (i). She submitted, even though the
petitioner was served with a notice of misuse charges in the year 1968 itself
she did not urge the implementation of the aforesaid order till 2016.
CONCLUSION:-
45. Having considered the submissions made by the learned counsel for
the parties and perused the record of the case, at the outset I shall deal with
the submission made by Mr. Rajesh Yadav that the impugned demand of the
respondents is barred by limitation as the claim was raised more than 25
years after the notice of alleged misuse.
46. The plea of Mr. Yadav was that the last correspondence was received
by the petitioner from the Ambassador of Lebanon annexing therewith the
letter of the Chief of Protocol dated June 16, 1969. There was no further
notice by the respondents till April, 1987. Even between 1987 till 2002 there
was no action by the respondents. The respondents raised the demand only
after the petitioner had deposited an amount of Rs.45,18,000/- for conversion
of property from leasehold to freehold. The impugned demand was raised on
February 23, 2015 for the misuse charges from September 8, 1983 till April
7, 2002. The impugned demand after 25 years of notice of misuse dated
April 16, 1987, is barred by limitation.
47. At the outset, it may be stated that the present petition has been filed by
the petitioner and not by the respondents claiming the amount. In other
words, the plea of limitation is applicable if a claim is made by respondents
that too in a court of law. The plea of Mr. Yadav appears to be more of delay
of 25 years on part of the respondents to raise the impugned demand after the
issuance of notice in the year 1987. No doubt, a demand of this nature must
be raised at the earliest. The respondents have not brought to the notice of
this Court the reasons for delay but at the same time Mr. Yadav has not
brought to my notice any rule on instruction, stipulating a time period within
which such a demand can be made. It appears, the demand got triggered,
after the respondents received the communication from the Embassy of
Lebanon dated February 29, 2012. In any case, the respondents being Central
Government, the limitation for making a demand / claim is 30 years in terms
of Article 112 of the Limitation Act. Further, the bar of limitation prevents a
person from suing to recover the amount due. It does not mean that the
amount ceases to be due. The right remains unaffected. Only the remedy is
barred. If the respondents compel the lessee to pay the dues before the
application for conversion is affected, the same is justified. It has been held
so in Union of India & Anr. vs Jor Bagh Association (supra) on a similar
plea advanced in that case:-
"76. The argument that where the demands were created
but not enforced, and the period of limitation to recover the
same has expired, to permit the lessor to recover the same
as a condition for conversion would breach the well
recognized jurisprudential principle that what cannot be
done directly cannot be done indirectly, as observed and
applied in the decision reported as 166 (2010) DLT 659
(SC)=I (2010) SLT 372=JT 2009 (10) SC 645, Subhash
Chandra & Anr. v. Delhi Subordinate Services Selection
Board & Ors., has no application on the subject at hand, for
the reason it is settled law that where the bar of limitation
prevents a person from suing to recover the amount due, it
does not mean that the amount ceases to be due. The right
remains unaffected. Only the remedy is barred. If the lessor
has a demand with respect to a property, before the lessor is
compelled to relinquish its title and convey free-hold tenure,
the lessor would be permitted to insist that dues payable to
it must be cleared."
48. As far as the reliance placed by Mr. Rajesh Yadav on the judgment of
the Supreme Court in the case of Delhi Development Authority vs. Ram
Prakas (2011) 4 SCC 180, is concerned, in the said case, the facts were the
respondent along with his mother purchased a property No.7, Community
Center, East of Kailash, New Delhi in the year 1969. Possession of the plot
was taken in the year 1972 and pursuant to which lease deed was executed.
In the year 1983 pursuant to a routine inspection by the DDA, it was noticed
that the respondent was using the basement of the building for office
purposes which is in contravention of the prescribed usage. A Show-Cause
Notice was issued on the same day calling upon the respondent to show cause
as to why action for cancellation of lease be not taken. No action was taken
for a period of seven years, when on June 28, 1990, another Show-Cause
Notice was issued stating as to why the lease should not be determined for
violation of clause II(13) of the lease deed on the ground that both the
basement and mezzanine floor of the building were being misused as an
office instead of storage. In response to the second Show-Cause Notice, a
reply was filed by the respondent. As the reply was not found to be
satisfactory, further Show-Cause Notices were issued to the respondent on
September 03, 1990 and December 11, 1990 denying the allegation made
against him. A further inspection was carried out on April 24, 1991 and a
show cause notice was issued on May 08, 1991. Ultimately, the respondent
vide his letter dated July 09, 1991 stated that the mezzanine floor was being
used as office. In reply to the said letter written on behalf of the respondent,
the DDA informed the respondent that as per architectural design, the
mezzanine floor could be used only for storage and unless the misuse is
stopped the lease would have to be determined. In response, on November
13, 1991, the respondent once again asserted that the mezzanine floor in the
Community Centre was not being misused.
49. In the meanwhile, the wife of the respondent, died on April 23, 1994,
as did Smt. Saraswati Devi, mother of the respondent on August 06, 1994.
On May 20, 2004 the respondent applied to the DDA for mutation of the
property in favour of the legal heirs of the deceased co-auction purchasers. In
response thereto, the respondent was asked by a letter dated May 20, 2004 to
pay misuser charges and was called upon to clear the dues in respect thereof.
Against the said demand, the respondent filed a writ petition in the year 2006
before this Court for quashing of demand of misuser charges amounting to
Rs.1,78,85,001/-. The same was allowed by this Court on August 17, 2007.
The DDA filed LPA No. 22/2008, which was dismissed on May 02, 2008. It
may be stated here that the learned Single Judge in his conclusion held that
the notice issued to the respondent was with regard to alleged misuse of the
basement from July 30, 1983, the mezzanine floor from June 20, 1990, and
the terrace from September 07, 1992 till January 13, 2003. Regarding
basement, a show cause notice was issued to the respondent on August 08,
1983 and a reply was received from the respondent on August 10, 1983. No
decision was taken by the DDA on the said Show-Cause notice. On the other
hand, in June 1990, upon an alleged inspection by the DDA, another Show-
Cause Notice was issued to the respondent on June 28, 1990, only in respect
of the alleged misuse of the basement and the mezzanine floor. Despite a
reply being sent, again no action was taken by the DDA except for issuing
final notices to the respondent on September 03, 1990 and December 11,
1990, requiring him to stop violation of the conditions of the lease deed,
failing which it would be terminated. The respondent sent a reply to the first
final notice on November 05, 1990, but again no decision was taken on any
of the two final notices which had been sent to the respondent. The Division
Bench on a question of limitation being raised in respect of the demand of
misuser charges observed that there was no period of limitation, action has to
be taken by the authorities within a reasonable period of time, but by no
stretch of imagination, could it be said that action shall be taken after a lapse
of almost 25 years. It held, the DDA had acted arbitrarily or at least unfairly
in so far as the respondent is concerned.
50. The material on record in that case showed that the respondent took
prompt steps against the tenants for their transgression. During arguments it
was indicated that, in fact, one of the tenants had already vacated the portion
of the premises occupied by him. It was held that after issuing the Show-
Cause Notices, the petitioner did not take any follow-up action. Instead, after
a lapse of 25 years, the petitioner set up a claim on account of charges for the
entire period. The Supreme Court held, it would be inequitable to allow the
petitioner which had sat over the matter to take advantage of its inaction in
claiming misuser charges. The said judgment has no applicability, inasmuch
as unlike the case in hand, the petitioner / appellant before the Supreme Court
was DDA and the DDA not being Central Government, even if it had
initiated the claim from the date when misuser was found, i.e., 1983, the
limitation would have expired in 1986. Thereafter, even if, the DDA could
have made a claim in any Court of law, the same would have been dismissed,
whereas in the case in hand, the notice was effectively issued in 1987 and
demand made in the year 2012 and later in 2015 and the respondents being
Central Government could have made a claim within 30 years by
approaching a Civil Court in terms of Article 112 of the Limitation Act. In
any case, the Division Bench in Union of India & Anr. Vs Jor Bagh
Association (Regd.) & Ors. (supra), has in similar facts made the position of
law clear.
51. The judgment as cited by Mr. Yadav is distinguishable. In fact, Mr.
Yadav had not pressed this issue seriously during arguments.
WHETHER THE PREMISES WAS BEING USED FOR
RESIDENTIAL AND OFFICE PURPOSES OR FOR OFFICE
PURPOSES ONLY
52. It is Mr. Yadav's case that the premises was being used for residential /
Chancery and cultural activities. There is no dispute that the perpetual lease
executed between the L&DO and the petitioner stipulates the premises has to
be used for residential purpose. Mr. Yadav had relied upon the letter of the
Ministry of External Affairs dated June 16, 1969 to contend that a reference
is made in the said letter about the Land & Development Officer having
confirmed that the premises do not attract levy of additional ground rent for
change of purpose since only 22% of the ground floor was being used for
Chancery. Mr. Yadav referred to counter affidavit to state, the inspections
carried out on August 10, 1983, and July 09, 1986 stated that ground floor is
occupied by the Embassy of Lebanon and being used as residence and office,
first floor and barsati floor with lessee and being used for residence. He also
referred to inspection report of 1997 to state that none of the three inspections
reports mentioned that the said premises was being used exclusively for
office purpose. In substance, the plea of Mr. Yadav was that only a little
portion of the property was being used for Chancery / cultural activities i.e.
office purposes, but largely for residential purpose and as such the usage of
the property has not changed. I am unable to agree with this submission for
the simple reason that one of the earliest notices dated October 14, 1968
issued to the petitioner clearly stated that the ground floor was being used as
office by Embassy of Lebanon. Even from the reports of inspection carried
out on August 10, 1983 and July 09, 1986 (Annexure R-15), it is clear that
the ground floor was occupied by the Embassy of Lebanon and was being
used as office for its chancery and cultural affairs mostly dealing with
Lebanese students in India. The report does not refer to usage for residence.
Even a perusal of the Civil Suit handed over to the Court during the course of
submissions, shows that the same was filed for possession, recovery of mesne
profit and perpetual and permanent injunction by the petitioner herein,
wherein one of the ground in unequivocal terms was that since inception of
the tenancy, the Government of Lebanon used the tenanted premises as office
of the Embassy of Lebanon in violation of expressed terms of perpetual lease
deed. Even the inspection report of 1997 (Addl. documents of the
respondents) stated that the ground floor is occupied by Embassy and is being
used as office for Chancery and cultural affairs. It is also seen that in one of
the latest communications dated February 29, 2012, the Embassy itself in
unequivocal terms had stated that for the period between February 29, 1968
to April 08, 2002, the property was leased to the Embassy for office and
Chancery purpose exclusively, as the residence of the Ambassador was
always in a different location, as it is till now. In fact, the letter is clinching
upon the revelation that the place of residence of the Ambassador was at a
different place. So, it necessarily follows that the property, which was at
Sardar Patel Marg was not used for residence. I must say that the reliance
placed by Mr. Yadav on the communications of Ministry of External Affairs
from 1969 (pages 121 & 130), that the area utilized is only 22% is misplaced.
In fact the letter of L&DO dated March 25, 1969 is relevant and the same
reads as under:
"The Ambassador informed this office vide letter No.3211/3
dated 6-5-68 that his Chancery located in the premises had
five rooms all of which were used for cultural activities.
There are five rooms on the ground floor which were found
to be misused and the area work out to 82.7% of the total
covered area of the ground floor. It is not understood how
the Embassy has changed their earlier stand and have now
stated in note No.20/1/3/2 dated 17-1-69 that the area was
only 22% of the ground floor. The Ministry of External
Affairs may like to reconsider the matter in the light of the
facts stated above."
53. It appears the position that was represented by the Embassy was not
correct nor was there any means to ascertain the position through physical
verification in view of order of 1982. Ms. Arora is right in stating that the
representation of the Embassy that it was using 22% of the property for the
purpose other than residence was accepted on the face value for want of any
attempt to verify the correctness by physical inspections of the premises
would be taken as amiss. It must be held that, the premises in question was
being used for office purposes only. Insofar as the plea taken by Mr. Yadav,
that the phrase "L&DO leased premises" would mean the whole plot of land
and not just a part of the built up area of the property in question, is
concerned, the same is without merit.
APPLICABILITY OF CIRCULAR DATED MARCH 31, 1976 OR
SEPTEMBER 08, 1983
54. It is the case of the petitioner that clause (i) of circular dated September
08, 1983 stipulates if the premises is being used both for residential and
office purpose by any Embassy / Mission, no notice will be taken of the
misuse and no misuse charges etc would be levied. The aforesaid argument
of Mr. Yadav proceeds on a premise that the premises is being used for
residential and office purpose by an Embassy / Mission. In view of my
aforesaid finding in paras 52-53 above, clause (i) has no applicability. The
misuser charges in this case have to be regulated by clause (ii) of circular No.
29/83 dated September 08, 1983, which reads as under:-
"Whereas L&DO leased premises is used clearly for
office purposes as such by an Embassy / Mission, the
normal misuse charges according to the formula adopted
by the Government / L&DO will be levied on the lessee.
The procedure to be followed for inspection will be as
laid down in the L&DO Office Order No. 17-82 dated
26.07.1982."
55. In so far as plea of Mr. Yadav, without admitting that Clause (i) of the
Office Order No. 29/83 does not apply to the case of the petitioner, that the
petitioner is entitled to the benefit of clause 8 of the Office Order No. 23/76
dated March 31, 1976 being a general order is concerned, firstly the 1976
Office Order is a general order, which held the field till the issuance of the
Office Order No. 29/83, which specifically relates to premises which are
leased out to Foreign Missions. After the issuance of Office Order No.
29/83, the misuse charges are regulated (and ought to be) thereunder, being a
specific order and not under order 23/1976 as stated by Mr. Yadav, on the
principle of law that when general law and a special law dealing with some
aspect dealt with by the general law are in question, the rule adopted and
applied is one of harmonious construction whereby the general law, to the
extent dealt with by the special law, is impliedly repealed. This principle
finds its origin in the latin maxim of generalia specialibus non derogant, i.e.,
general law yields to special law should they operate in the same field, on
same subject (Ref. Commercial Tax Officer, Rajasthan v. Binani Cements
Ltd. and Ors., Civil Appeal No. 336 of 2003). So it follows, neither clause
(7) nor clause (8), which I reproduce below, of the Office Order No. 23/76 is
applicable to the case in hand.
"7. In cases where the charges on account of change in use
are found, beyond any doubt, to be more than the income
of the lessee from the leased premises the charges will be
reduced suitably according to the circumstances of each
case in consultation with Ministry of Works and Housing
and Finance. While doing so, the reasons for the
inability on the part of the lessee to increase the income
from the leased premises will, no doubt, have to be fully
considered.
8. In case where the lessee / ex-lessee files suit for eviction
against defaulting tenants on receipt of our notice for
misuse and are successful in evicting such tenants one
percent of the charges will be recovered as token penalty
in consultation with the Ministry of Works & Housing
and Finance."
56. Even otherwise, clause (7) of the order No. 23/76 shall not be
automatically applicable as the same presupposes reduction in charges in
accordance with the circumstances of each case in consultation with Ministry
of Works and Housing and Finance and while doing so, the reasons for the
inability on the part of the lessee to increase the income shall be gone into. In
so far as clause (8) is concerned, the Supreme Court in UOI v. Satish Kumar
Mehta (supra) has not appreciated the argument advanced by the counsel for
Mr. Mehta that in terms of the said order, i.e., 23/76 the misuser charges
cannot exceed the rent the respondent had already received.
57. The plea of Mr. Yadav, by relying on the provisions of MPD, 1962,
1990 and 2021, that social and cultural Institutions; Foreign Missions were /
are permitted in residential zones, is also without merit. The said argument
overlooks the permitted use of the property in terms of perpetual lease
executed between the parties herein. In fact, this submission of Mr. Yadav is
covered against the petitioner, by the Judgment of the Supreme Court in the
case of UOI v. Dev Raj Gupta (supra) wherein in Para 11, the Supreme
Court held as under: -
"11. The High Court is further not right in holding that
there was an automatic or a statutory conversion of the
user of the land because in the Master Plan the land in
question fell in the area reserved for commercial use.
The High Court failed to appreciate that the change of
user of the land permitted by the Plan was only enabling
in nature. It lifted the restriction which was otherwise
there for using the land for commercial purpose. The
land has to be used as per the agreement between the
contracting parties, and no change of the user can be
made contrary to the agreement even if the Plan permits
such user. The Plan helps the parties to change the user,
if the parties mutually agree to do so. It does not permit
the occupant to change the user unilaterally. It is not,
therefore, correct to say that no permission of the
landlord was needed to change the user of the land."
58. As far as the reliance placed by Mr. Yadav on the judgment of the
Supreme Court in R.K. Mittal (supra) and this Court in M.G. Ramachandran
& Anr. (supra) to contend that the Master Plan has legal sanctity is
concerned, there is no dispute on the said proposition but the same has no
applicability to the facts of this case, more so, in view of the judgment of the
Supreme Court in UOI v. Dev Raj Gupta (supra).
59. Insofar as the judgment in the case of Union of India & Ors. vs. Jor
Bag Association (supra) as relied upon by Mr. Yadav to contend that, the
petitioner being not at fault but the tenant who committed the offending act,
she should not be punished, is concerned, the said plea is without any merit
as the High Court in para 74 of the judgment has clearly stated whether the
lessee or his tenant are at fault is a factual dispute to be decided on the basis
of pleadings in each case. That apart, from the following observation of the
Division Bench in paras 77 and 78, it is clear that the power vested in the
lessor (i.e the respondents in this case) to control misuse and unauthorized
construction is in public interest and has to be upheld in its widest amplitude,
and the lessor is within its power to insist on misuser charges.
"xxx xxx xxx
77. The power vested in the lessor to control misuse
and unauthorized construction is in public interest and has
to be upheld in its widest amplitude. Besides, if a person
takes on lease a parcel of land to construct a residential
building thereon and use the same for residence, he pays to
the lessor a premium and a rest commensurate with the use.
If this person is permitted to use the property for a
commercial or an industrial purpose, it would amount to
cheating the revenue and the fellow citizens who could have
well done so.
78. We hold that it would be perfectly reasonable for
the State, acting as the lessor, to insist that misuse charges
and / or damages on account of unauthorized constructions
are paid before the lessor is compelled to convert the lease-
hold tenure to a free-hold tenure."
60. If the petitioner is aggrieved by the acts of the Embassy it is for the
petitioner to seek such remedy against the Embassy as is available to her in
accordance with law.
61. Insofar as the amount demanded by the respondents is concerned, Mr.
Yadav has drawn my attention to page 70 of the paper book to contend that
the dispute is primarily with regard to the amounts at serial No.3 and 6 to 12
which are under the head, misuse charges and 1/10 penalty on misuse
charges. No submission has been made by Mr. Yadav disputing the said
heads or the quantum of the misuse charges / penalty. If that be so, in view
of my above conclusion that there was a misuse of the premises and the
power exists with the respondents to claim misuse charges, the demand made
by the respondents in terms of the impugned communication(s) is justified.
There is no merit in the petition, the same is dismissed.
CM No. 20973/2016 (for stay)
Dismissed as infructuous.
V. KAMESWAR RAO, J
NOVEMBER 14, 2018/aky/jg
