Delhi High Court
Ritu Malik vs Land & Development Office on 23 April, 2019
$~52
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 8054/2017
RITU MALIK ..... Petitioner
Through: Mr Bharat Gupta and Mr Varun
Tyagi, Advocates.
versus
LAND & DEVELOPMENT OFFICE ..... Respondent
Through: Mr Anil Dabas, Advocate.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
ORDER
% 23.04.2019
VIBHU BAKHRU, J
1. The petitioner has filed the present petition, inter alia,
impugning a demand letter dated 02.03.2015 issued by the respondent,
whereby the respondent has levied misuse charges and damages
amounting to ₹25,43,395/- in respect of the property bearing Plot No.
5/12-A & 12-B, Kirti Nagar Industrial Area, New Delhi - 110015
(hereafter „the Property‟). The said charges have been calculated for
misuse from the year 1982 onwards.
2. The petitioner claims that no notice was issued for misuse at the
material time and therefore the charges for breaches, if any, ought to
be computed for the period commencing 03.03.2014 and not from the
year 1982.
3. The petitioner states that Mr Arjun Dev Arora (the petitioner‟s
father) had purchased the right, title and interest in the Property vide a
sale deed dated 12.12.1969, which was registered on 17.12.1969. The
Property was then mutated in the name of the petitioner‟s father vide a
memorandum dated 17.09.2016.
4. A letter dated 17.05.1982 was issued to Mr Arjun Dev Arora by
the respondent regarding inspection of the Property, which was
scheduled to be held on 26.05.1982. Pursuant to inspection, an
inspection report dated 11.06.1982 was generated, which indicated
certain misuse and unauthorized construction at the Property. It is
stated that another inspection was carried out on 28.06.1983 and the
inspection report dated 02.07.1983 also indicated misuse and
unauthorized construction at the Property.
5. Admittedly, no notice was issued to be petitioner‟s father
regarding any misuse or unauthorized construction. It is stated that the
same was for the reason that at the material time, inspection was
banned. This is also reflected in the office noting dated 19.07.1983,
which records: "Inspection has been banned and we cannot issue
notice".
6. The Respondent issued a general office order (bearing No. 3/85)
on 06.02.1985 (hereafter „the office order‟), wherein it was noticed
that since inspections had been banned, no notices were issued and
since notices could not be issued, no charges can be levied. In terms of
the said order the concerned officers were advised to issue notices
forthwith on the basis of previous inspections. However, no notice was
issued at the material time
7. Although no notice regarding misuse or breaches was issued at
the material time, the respondent returned the amount of ₹20 sent as
ground rent under the cover of a letter dated 03.01.1986.However, the
petitioner claims that neither her father nor any of his legal heirs were
aware of the aforementioned letter dated 03.01.1986.
8. Thereafter, the respondent issued another letter on 22.10.2013,
intimating the petitioner that inspection would be conducted on
08.11.2013. However, vide a letter dated 19/22.11.2013, the
respondent informed the petitioner that inspection was refused by the
lessee on the said date. In view of the same, inspection was
rescheduled to 10.12.2013. The petitioner submits that Mr Arjun Dev
Arora had expired on 31.12.2009 and none of his legal heirs were
aware of any of the aforementioned communications.
9. Another inspection was scheduled for 17.01.2014 and
information regarding the same was communicated by the respondent
vide a letter dated 08.01.2014. It is alleged that the lessee (petitioner)
did not permit the same and the inspection was rescheduled to
10.02.2014.
10. The petitioner submits that she responded to the letter dated
08.01.2014 on 06.02.2014, inter alia, stating that no one visited the
Property on 10.12.2013 and further requesting the respondent to
reschedule the inspection. The Property was again inspected on
17.01.2014, and the inspection report dated 26.02.2014 indicates
certain misuse and unauthorized construction. However, the petitioner
contends that a copy of the inspection report was not sent to the
petitioner, nor to any other legal heir of Mr Arjun Dev Arora.
11. Based on the foregoing inspection report dated 26.02.2014, a
breach notice addressed to Mr Arjun Dev Arora was sent on
03.03.2014 and the legal heirs of Mr Arjun Dev Arora were informed
about the misuse and unauthorized construction at the Property. The
legal heirs of Mr Arjun Dev Arora respondent to the said notice on
27.03.2014. Thereafter, the petitioner‟s brother, Mr Ashwani Arora,
addressed a letter to the respondent on 30.06.2014, requesting the
respondent to inform him about the charges for regularizing the
breaches.
12. On 08.07.2014, the petitioner filed an application with the
respondent for substitution of title of the Property in her favour, in
view of her father‟s demise and the fact that all other legal heirs had
relinquished their rights in the Property. A substitution letter to the
aforesaid effect was issued by the respondent on 21/22.08.2014,
recording the petitioner‟s name in place of her father‟s, in respect of
the Property.
13. The petitioner filed a conversion application dated 01.10.2014
on 09.10.2014 with the respondent along with a sum of ₹1,50,000/-
towards conversion of the Property from leasehold to freehold. Vide a
letter dated 27.11.2014, the respondent informed the petitioner that an
inspection has been scheduled for 15.12.2014. Subsequently, an
inspection report dated 19.12.2014 was issued by the respondent,
recording certain misuse and unauthorized construction at the
Property. A breach notice was issued to the petitioner dated
29/30.12.2014, informing her about the breaches at the Property and
putting her notice that she would be liable to pay damage and misuse
charges.
14. The petitioner claims that on receipt of the breach notice, she
demolished certain encroachment upon the Property.
15. Thereafter, the respondent issued a demand notice to the
petitioner for a sum of ₹ 25,43,395/- for regularizing the breaches at
the Property. This amount was calculated by the respondent from the
year 1982. It was further stated in the said demand notice that
conversion of the Property would be subject to payment of such
charges. The petitioner replied to the said demand notice vide a letter
dated 30.04.2015, contending that since the breaches were only made
known to her in the year 2014, pursuant to which they were removed,
the amount should not be calculated from the year 1982.
16. The petitioner contends that her representation was considered
at various levels by the respondent and various office notings indicate
that there is much confusion amongst the officials of the respondent
regarding the issues raised by the petitioner.
17. Vide a letter dated 09.08.2016, the respondent informed the
petitioner that the property had been examined for the first time on
26.05.1982 and thereafter on 28.06.1983. Breaches were reported on
both occasions. Further, the aforesaid letter recorded that the ground
rent paid by Mr Arjun Dev Arora on 02.12.1985, was returned to him
vide the letter dated 03.01.1986.
18. Aggrieved by the same, the petitioner has filed the present
petition.
19. The learned counsel appearing for the respondent does not
dispute that the controversy involved in the present case is squarely
covered by the decision of the Supreme Court in Delhi Development
Authority v. Ram Prakash: AIR 2011 SC 1399 and the decision of
this Court in Hira Lal Singh and Ors. v. The Land Development
Officer, Land & Development Office: W.P. (C) 8482/2015 decided
on 08.08.2017.
20. In Delhi Development Authority v. Ram Prakash (supra) the
Supreme Court had observed that it would be inequitable to allow
DDA to take advantage of its inaction in claiming misuse charges. The
observations to the aforesaid effect were made in the context where
show cause notices were issued on 08.08.1983 and 28.06.1990, but,
the DDA did not take any precipitate action thereafter, till the
respondent therein applied for mutation of the concerned property on
20.05.2004.
21. In the present case, admittedly, no show cause notice was issued
to the petitioner or her predecessor at the relevant time. Although, the
respondent states that ground rent was returned under the cover of a
letter dated 03.01.1986, it is admitted that no further steps were taken
by the respondent at the material time.
22. The respondent claims that it informed the petitioner regarding
an inspection to be conducted on 08.11.2013 by a letter dated
22.10.2013. It is claimed that the petitioner (lessee) did not permit
inspection to be conducted on that day. This is disputed by the
petitioner. However, without going into the controversy, it is clear that
till 08.11.2013, the respondent had not taken any steps for any action
for determining the misuse of the property. The first notice regarding
misuse of the property was issued on 03.03.2014. However, even if it
is accepted that save for the alleged obstruction created by the lessee,
the inspection would have been conducted on 08.11.2013 and the
respondent would have ascertained the extent of misuse and the
charges to be levied thereon, it would be inequitable to sustain the
demand of charges pertaining to the period prior to the said date. As
observed by the Supreme Court in Delhi Development Authority v.
Ram Prakash (supra), the respondent cannot be permitted to take
advantage of its inaction.
23. In view of the above, the respondent is directed to ascertain the
misuse charges and other charges as payable by the petitioner for the
period commencing from 08.11.2013.Subjectto the petitioner paying
the said charges, the petitioner‟s application for mutation and
conversion of the property in question would be processed in
accordance with law. The said application would not be withheld on
account of non-payment of any arrears or misuse charges for the
period prior to 08.11.2013.
24. The petition is disposed of in the above terms.
25. The parties are left to bear their own costs.
VIBHU BAKHRU, J
APRIL 23, 2019
pkv
