Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 06 December 2024
Judgment pronounced on : 20 January 2025
+ W.P. (C) 13388/2018
NATH INTERNATIONAL CORPORATION ..... Petitioner
Through: Mr. Prosenjeet Banerjee, Mr.
Amer Vaid and Ms. Anshika
Sharma, Advs.
Versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
Through: Ms. Manika Tripathy, Standing
Counsel for DDA.
CORAM:
HON'BLE MR. JUSTICE DHARMESH SHARMA
J U D G E M E N T
CM APPL. 2779/2021, 32602/2021 & 26028/2022 in W.P.(C)
13388/2018 (Disposed off case)
1. The petitioner firm is invoking the extra ordinary jurisdiction of
this Court under Article 226 of the Constitution of India, 1950,
seeking the issuance of a writ of mandamus or any other writ or
direction, for the conversion of the plots bearing Nos. D-86/1 & D-87,
1
Okhla Industrial Area, Phase 1, New Delhi – 110020 , to freehold, as
per the application dated 29.06.2010. The petitioner, by way of this
petition, had sought the following reliefs: -
“a) Pass necessary directions to quash and set aside the demand
made by the Respondent vide letter dt. 26.09.2018; and pass
necessary orders directing the Respondent to allow the Petitioner's
1
Subject premises
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W.P. (C) 13388/2018 Page 1 of 31
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:21.01.2025
18:36:04
Application for Conversion to Freehold dt. 29.06.2010 of the
premises bearing no. D-86/1 & D-87, Okhla Industrial Area, Phase
1, New Delhi - 110020, in accordance with law.
b) Pass any other appropriate order or direction as this Hon’ble
Court may deem fit and in the interest of justice in favour of
the Petitioner.”
BRIEF FACTS
2. Shorn of unnecessary details, the petitioner firm submitted bid
forms for Plots D-86/1 and D-87 during a public auction held by the
2 3
respondent/DDA on 28.11.1983, along with EMD s of Rs.46,000/-
and Rs. 44,000/-, respectively. On 19.12.1983, the respondent/DDA
acknowledged and accepted the bids, calling for payment of the
balance amounts, which the petitioner firm completed on 21.01.1984
(for D-87) and 29.02.1984 (for D-86/1). The possession of the plots
was offered by the respondent/DDA on 23.07.1984 and was taken by
the petitioner firm on 03.08.1984, as certified and countersigned by
the respondent/DDA. On 12.10.1987, the respondent/DDA agreed to
consider the petitioner firm’s request for amalgamation of the plots
upon payment of Rs. 5,000/-, which was subsequently accepted on
15.10.1987. The building plans for the amalgamated plot were
4
approved on 05.01.1988 after amendments were made, clearly
showing the mezzanine floor as office space. The sanction letter
emphasized that construction or use contrary to the approved plans
was prohibited. Two office spaces, each measuring 10'-6" x 17'-4½",
were sanctioned on the mezzanine floor. On 03.05.1990, a Perpetual
2
Delhi Development Authority
3
Earnest Money Deposit
4
File No. 3(84)86/Blgd/91
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Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:21.01.2025
18:36:04
Lease Deed for the amalgamated plots was executed between the
parties.
3. The subject premises are owned by the petitioner firm,
originally a partnership between Sh. Jitendra Nath and Sh. Vijendra
Nath, both of whom are now deceased, with their respective legal
representatives serving as the present partners.
4. The petitioner firm avers that the respondent/DDA conducted
an initial inspection on 31.01.1996. As per an internal noting dated
12.02.1996, it was observed that the mezzanine floor was used for
office purposes, and the basement was used for industrial purposes by
M/s Universal Turbo Private Limited (hereinafter referred to as
“ Universal Turbo ”), contrary to the prescribed non-industrial use.
The noting recommended issuing a Show Cause Notice (hereinafter
referred to as “ SCN ”); however, no such notice was served, nor was
any alleged violation communicated to the petitioner firm. The
petitioner firm further submits that during a subsequent inspection on
18.10.2005, the inspection performa recorded that no sub-letting was
observed, the basement was used for storage, the ground floor for
industrial purposes (manufacturing air filters), the mezzanine floor for
office purposes, and the first floor for storage.
5. It is borne out from the record that on 29.06.2010, the petitioner
firm submitted an application for conversion of the subject premises
from leasehold to freehold. Subsequently, on 21.10.2010, the
respondent/DDA conducted a third inspection, during which the use of
the mezzanine floor for office purposes was noted as an alleged
misuse of the premises. However, no SCN was issued to the petitioner
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Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:21.01.2025
18:36:04
firm. The respondent/DDA on 30.05.2011 had communicated to the
petitioner firm that “ There are inspection reports on DDA file to
establish that the basement of your plots was being used by M/s
Universal Turbo Pvt. Ltd. During the year 1996 ” and further
requested the petitioner firm to furnish the copy of the tenancy in
favour of Universal Turbo. The petitioner firm submits that the letter
was replied by the petitioner and it stated that Universal Turbo is a
company which was promoted by the partners of the petitioner firm.
6. It is stated that on 23.08.2013, a fourth inspection was
conducted, during which no misuse of the subject premises was
observed. Subsequently, on 04.10.2013, the respondent/DDA issued
the first and only SCN, which specifically alleged misuse of the
mezzanine floor as an office. It would be apposite to reproduce the
relevant portion from the SCN dated 04.10.2013: -
“Since, operation of office in mezz. Floor tantamount to misuse, as
mezz. Floor is not a part of FAR allowed for construction on the
plot. This breach of terms & conditions of Lease Deed under
(clause II (12) attracts levy of misuse charges. As per the said
clause, the lessee shall not without the written consent of the
Lessor use or permit to be used, industrial plot or in any building
thereon for residential or for carrying on any trade or business what
so ever or use the same or permit the same to be used for any
purpose other than that of carrying on the manufacturing process or
running the industry.”
7. The SCN dated 04.10.2013 alleged misuse of the mezzanine
floor as an office but failed to reference the fourth inspection dated
23.08.2013, which recorded no misuse. The petitioner firm replied on
16.12.2013, denying the allegation and citing sanctioned plans
approved on 05.01.1988 under the Delhi Development Act, 1957,
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Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:21.01.2025
18:36:04
which permitted office use for the mezzanine floor. To date, the
respondent/DDA has neither acted on the SCN nor replied to the
petitioner firm’s letter, indicating deemed acceptance. This is further
evidenced by the respondent/DDA’s letter dated 21.01.2014, seeking a
copy of the sanction letter to process the conversion application.
8. The petitioner firm states that during a 'Lok Shivir' at Vikas
Sadan on 07.07.2014, it came to light that misuse charges were being
contemplated for alleged basement misuse by Universal Turbo.
Anticipating such action, the petitioner firm sent a letter dated
07.08.2014, explaining why such charges were unwarranted. The
petitioner firm asserts that no SCN or warning was ever issued
regarding this alleged misuse, and the respondent/DDA overlooked its
own misuse policy dated 26.03.2010. The petitioner firm further notes
that no such misuse was observed during inspections on 18.10.2005,
21.10.2010, or 23.08.2013. Through a letter dated 30.05.2011, the
petitioner firm clarified that Universal Turbo was owned and operated
by the partners of the petitioner firm, ruling out tenancy. This letter
was neither replied to nor refuted by the respondent/DDA.
9. The petitioner firm emphasizes that until 04.10.2013, no SCN
or demand letter was received concerning the alleged basement
misuse, indicating deemed acceptance by the respondent/DDA. On
25.08.2014, the petitioner sent a follow-up letter reiterating verbal
submissions made during a meeting with the respondent/DDA,
addressing anticipated charges related to the mezzanine floor's office
use.
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Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:21.01.2025
18:36:04
10. On 12.01.2018, the petitioner firm sent a follow-up letter after
being informed that its conversion application had been decided but
kept in abeyance due to alleged misuse charges. On 14.03.2018, the
petitioner firm’s authorized representative pleaded with the
respondent/DDA to process the application, reiterating the non-
applicability of the alleged charges and highlighting the undue
hardship caused, particularly to a senior citizen. After years of
inaction by the respondent/DDA, the petitioner firm filed an RTI on
14.05.2018, obtaining internal notes indicating that the maximum time
to process conversion of industrial land from leasehold to freehold is
45 days, if the documents are in order. The petitioner firm contends
that all necessary documents were submitted, and no objections were
raised by the respondent/DDA. Despite this, the conversion
application has been unjustly delayed for over eight years, causing
significant hardship.
11. Considering the petitioner firm’s submissions and the fact that
all necessary documents for the conversion application had been
provided, the respondent/DDA, vide letter dated 11.06.2018, requested
submission of a bank certificate for Challan No. 472594 dated
24.05.2008, for Rs. 9,000/- deposited as ground rent. This request was
made in reference to the petitioner firm’s conversion application dated
29.06.2010 for converting the property from leasehold to freehold.
The petitioner firm duly complied with this request.
12. The respondent/DDA, vide letter No. F.5(89)83/LSB(I)/DDA/
1515 dated 26.09.2018 (hereinafter referred to as ‘ ),
Demand Letter’
sought alleged dues amounting to Rs. 20,34,832/-. The petitioner firm
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Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:21.01.2025
18:36:04
submits that the Demand Letter is unjust, illegal, and non-speaking, as
it neither explains the basis or quantification of the alleged dues,
charges, or penalties nor refers to any SCN or Executive/Judicial
Order justifying the demand. The petitioner firm further contends that
the Demand Letter is time-barred, having been issued over eight years
after the submission of the freehold conversion application on
29.06.2010. No prior communication or explanation regarding these
alleged dues was ever received by the petitioner firm.
13. The petitioner firm avers that regarding the alleged 'Balance
Conversion Charges ' of Rs. 82,800/- and 'Interest on Balance
Conversion Charges ' of Rs. 1,11,780/-, the respondent/DDA has
provided no reasoning, calculation, or prior communication to justify
these demands. The petitioner firm states that all applicable
conversion charges, amounting to Rs. 8,28,476/-, were duly paid via
challan No. 10653210 dated 29.06.2010. The petitioner firm further
avers that the respondent/DDA is unjustly seeking these amounts,
including interest, on allegedly unpaid and unfounded charges.
Similarly, no SCN or demand has ever been issued regarding ground
rent or balance conversion charges since the submission of the
conversion application. In the absence of any such demand, the
respondent/DDA cannot claim interest on these charges. Additionally,
the petitioner firm submits that any claim for such charges is time-
barred under the applicable limitation period.
LEGAL SUBMISSIONS ADVANCED AT THE BAR
14. Learned counsel for the petitioner firm has urged that the
Demand Letter is unsustainable in law on multiple grounds, including
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W.P. (C) 13388/2018 Page 7 of 31
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:21.01.2025
18:36:04
its inconsistency with the office notings, the building plan sanctioned
by the respondent/DDA, and the policy dated 26.03.2010, governing
the DDA. Additionally, it is submitted that the Demand Letter
constitutes a completely non-speaking determination, lacking any
justification or explanation. Inviting the attention of the Court to order
dated 20.11.2019, it is submitted that no action was taken by the
respondent/DDA towards the implementation of the aforesaid order
until 08.01.2020, when a meeting was conducted in regard to the
levying of the misuse charges in respect of the subject premises of the
petitioner firm.
15. It is vehemently pointed out that as neither the conversion of the
subject premises nor the withdrawal of the Demand Letter was
undertaken by the respondent/DDA in accordance with the terms, of
the order dated 20.11.2019, the petitioner was compelled to file an
application bearing No. CM. Appl. 2779/2021, and this Court passed
an order directing the respondent/DDA to comply with the directions
outlined in the order dated 20.11.2019. Subsequently, the
respondent/DDA passed a speaking order on 12.02.2021, wherein it
stated that that approval to process the conversion application, which
was granted during a personal meeting held on 08.01.2020 and further
supported by the prior approval given by the Commissioner (LD) on
28.04.2016, was subsequently withdrawn arbitrarily. Additionally, a
5
file noting from 1995 allegedly highlighted that the FAR of the
mezzanine floor, as recorded in the sanctioned drawing, exceeded the
5
Floor Area Ratio
Signature Not Verified
W.P. (C) 13388/2018 Page 8 of 31
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:21.01.2025
18:36:04
6
permissible FAR limit under the BBL 1983 policy. Consequently, the
matter was referred to the respondent/DDA's vigilance department on
the grounds of alleged file tampering with malafide intent. The
petitioner firm further asserts that as per the speaking order, a legible
copy of the sanctioned plan was sought to calculate misuse charges
relating to the use of the mezzanine floor as office space. Moreover, it
is alleged that a SCN was issued in 1996; however, the
respondent/DDA’s records do not contain any evidence of the same.
The speaking order also stated that the respondent/DDA will re-
examine misuse data of the mezzanine floor, misuse charges of the
basement floor, and other charges after receipt of the sanctioned
building plan.
16. As regards the speaking order dated 12.02.2021, it is submitted
that the order dated 20.11.2019 of this Court directed the processing
of the conversion application notwithstanding the demand letter sent
by the respondent/DDA. However, as stated in the speaking order, this
has not been done by the respondent/DDA. Instead, and surprisingly,
the approval dated 28.04.2016 given by the Commissioner (LD) and
the approval dated 08.01.2020 given by the Director (Indl.) have been
withdrawn. The respondent/DDA, being the custodian of the
documents, is again seeking the submission of a sanctioned building
plan, claiming not to possess a legible copy. However, it is submitted
that the petitioner firm has submitted a copy of the sanctioned plan
four times in the past twelve years, and it is also part of the documents
filed with the petition. No evidence or document has been brought
6
Building Bye-Laws
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W.P. (C) 13388/2018 Page 9 of 31
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:21.01.2025
18:36:04
forth to substantiate allegations of ‘ file tampering with malafide
intent ,’ and, without prejudice, the same cannot pertain to the
petitioner firm. The alleged tampering of the file is an internal issue of
the respondent/DDA and is unrelated to the petitioner firm.
17. Furthermore, no evidence or document has been provided to
establish the existence of the 1996 SCN, and the respondent/DDA’s
own documents deny its existence. Reliance is placed upon R.L. Sethi
7
v. Union of India and Hira Lal Singh v. The Land Development
8
Officer, Land & Development Office , and it is submitted that the
respondent/DDA is restricted from raising demands after a delay of
close to 17 years in issuing a SCN and 22 years since the alleged
recording of the misuse charges.
18. It is pointed out that the petitioner was compelled to file another
application, CM Appl. No. 32602/2021, whereby they sought to
deposit Rs. 20.34 lakhs, as demanded in the Demand Letter, as a
without-prejudice payment to expedite the matter and facilitate the
conversion of the property into freehold. On 21.09.2021, this Court
permitted the petitioner to deposit the amount and directed the
respondent/DDA to respond to the application. Instead of complying
with the Court's repeated orders and adhering to office notings and the
sanctioned plan, the respondent/DDA filed an additional affidavit
dated 27.11.2021, in which a fresh Demand Notice for Rs. 60.64 lakhs
as misuse charges were imposed claiming that the 2014 policy was
misapplied to the petitioner’s case when the 2010 policy should have
7
2010 SCC OnLine Del 1945
8
2017 SCC OnLine Del 9918
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Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:21.01.2025
18:36:04
been applied. The respondent further contended that, under clause i(II)
of the 2010 policy, the SCN is “deemed” to have been issued to the
petitioner firm.
19. Per contra , learned Standing Counsel for the respondent/DDA
submits that an inspection of the subject premises was conducted on
23.08.2013. Following this, on 04.10.2013, the respondent/DDA
issued a SCN regarding the misuse of the mezzanine floor as office
space, which amounted to a violation of the terms of the lease deed.
Additionally, it was noted that the mezzanine floor was not part of the
permissible FAR for construction on the plot, thereby breaching
clause II (12) of the lease deed and attracting the levy of misuse
charges. Subsequently, the misuse charges were calculated based on
the approved misuse area of 36.74 sqm for the mezzanine portion,
amounting to Rs. 11,17,230/. The respondent/DDA further states that
the demand letter dated 26.09.2018 sent to the petitioner clearly
specified the total payable amount of Rs. 20,34,832/-, including these
charges. The misuse charges were calculated in accordance with the
misuse policy dated 26.03.2010. The respondent/DDA clarifies that
the misuse policy referenced by the petitioner, bearing No. F.
(1)/2014-coord. (LD)/DDA/32 dated 22.04.2014, was withdrawn as its
validity was limited to a six-month period.
20. The respondent/DDA submits that they had complied with the
order dated 20.11.2019 of this Court and had accorded a personal
9
hearing to the AR of the petitioner’ firm on 08.01.2020 with the
Director (Indl.). Subsequently, a joint inspection was conducted by
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W.P. (C) 13388/2018 Page 11 of 31
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:21.01.2025
18:36:04
LSB(I), Engineering Department & Legal Department on 09.02.2021
and as per the report, it was found that the basement of the subject
premises was used for storage and no office was found on the
mezzanine floor and the first floor of the subject premises was found
to be locked during the inspection.
21. It is further contended by the respondent/DDA that another
meeting was held under the chairmanship of the Commissioner (LD)
on 11.02.2021, with officials of the DDA and the petitioner firm in
attendance. During this meeting, the Deputy Director (Building)
informed that the sanctioned plan available with the respondent/DDA
was not legible. Consequently, the AR of the petitioner firm was
requested to provide a legible copy of the sanctioned plan to facilitate
further deliberations on revising misuse charges for the mezzanine
floor. Additionally, misuse charges for the basement, which was
reportedly being used for industrial activity as noted in the inspection
report dated 12.02.1996, were also to be reviewed after receipt of the
sanctioned plan. In compliance with the order dated 20.11.2019 of this
Court, a Speaking Order was passed on 12.02.2021.
22. The respondent/DDA further states that the petitioner firm
sublet the basement and mezzanine floor to Universal Turbo, in
violation of the terms of the lease agreement. Subletting charges for
the basement floor, covering an area of 152.2 sqm, were calculated for
the period from 12.02.1996 to 18.10.2005, amounting to Rs.
3,88,440/-. A demand letter dated 26.09.2018 was issued to the
petitioner firm requiring payment of these subletting charges along
9
Authorized representative
Signature Not Verified
W.P. (C) 13388/2018 Page 12 of 31
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:21.01.2025
18:36:04
with other outstanding dues. Additionally, the respondent submits that
in CM Application No. 32602/2021, the petitioner firm provided an
undertaking stating that “ in the event there is any other amount which,
in accordance with law, may be required to be paid to effectuate the
conversion, the petitioner would, without prejudice to its rights and
contentions, deposit the same with this Hon’ble Court within one week
of being informed by the respondent.” This Court, vide order dated
21.09.2021, recorded the statement of the learned Senior Advocate for
the petitioner firm that the petitioner firm is willing to indemnify the
respondent/DDA against any third-party claims. Therefore, the
respondent/DDA issued a demand letter dated 26.09.2018 for Rs.
20,34,832/- to the petitioner firm, subject to final review and
verification by the Finance Department. The amount was erroneously
calculated based on the misuse policy dated 22.04.2014, which was
valid only for six months. Subsequently, the Finance Department re-
evaluated the misuse charges under the misuse policy dated
26.03.2010, determining them to be Rs. 17,38,166/- for the basement
and Rs. 25,55,231/- for the mezzanine floor.
23. Lastly, the respondent/DDA urges that the petitioner firm
should not be excused solely due to the delay in issuing the SCN. The
sanctity of contractual obligations must be maintained, and procedural
delays do not absolve the petitioner firm of its responsibilities.
Consequently, a demand letter dated 23.11.2021 was sent to the
petitioner via email, requiring payment of Rs. 40,30,490/- towards
outstanding dues within 30 days of its issuance.
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W.P. (C) 13388/2018 Page 13 of 31
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:21.01.2025
18:36:04
ANALYSIS AND DECISION
24. I have given my thoughtful consideration to the submissions
advanced by the learned counsels for the parties at the Bar. I have also
perused the relevant record of the case.
25. First things first, it is admitted fact that the building plan was
sanctioned by the respondent/DDA on 05.01.1988, which stipulated
that the usage to be:
•
storage for basement floor;
• industrial use for ground floor;
•
office use for mezzanine floor: and
• storage in case of first floor.
26. It is also admitted fact that on approval by the respondent/
DDA, a perpetual lease deed of the amalgamated subject properties
was executed between the parties on 03.05.1990. It is also admitted
fact that first inspection of the subject property was carried out on
12.02.1996, whereby it was allegedly found that basement was being
used for industrial use, which had been sub-let to Universal Turbo and
the mezzanine floor was being used for office space. It is also
admitted fact that no SCN was issued by the respondent/DDA with
regard to such misuser and though a second inspection was then
conducted on 18.10.2005, the report of the inspection did not bring out
any case of misuse of the basement other than storage and/or for that
matter the use of the mezzanine floor for the purpose of other than
office.
27. It is also borne out from the record that the petitioner firm
applied for conversion of the subject property from leasehold to
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Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:21.01.2025
18:36:04
freehold on 29.06.2010 and paid the requisite conversion charges and
inspection consequent thereto was again carried out by the officials of
the respondent/DDA on 21.10.2010, wherein it was recorded that the
mezzanine floor was used for office. It appears that a notice dated
30.05.2011 was issued, whereby consequent to application for
conversion moved by the petitioner firm, it was called upon by the
respondent/DDA to furnish copies of the documents showing tenancy
in favour of Universal Turbo , to which reply was given dated
04.07.2011 inter alia pointing out that Universal Turbo is a company
promoted by two partners of M/s. Nath International Corporation,
commonly namely, Vijendra Nath and Jitender Nath as equal
Directors and a copy of the Memorandum of Association was also
th
submitted. It is also admitted fact that 4 inspection was done on
23.08.2013 and again no misuse was found qua the basement and the
mezzanine floor and it was for the first time SCN dated 04.10.2013
was issued, whereby misuse of the subject property was alleged
completely overlooking the findings of the earlier inspection report
th
dated 23.08.2010 and based on some 5 inspection dated 01.11.2010.
The SCN dated 04.10.2013 was replied by the petitioner vide letter
dated 16.12.2013.
28. At this juncture, it may be noted that it is the case of the
petitioner firm that a new policy had been brought with regard to the
imposition of misuse charges by the respondent/DDA w.e.f.
26.03.2010. However, the fact of the matter is that there was an
exchange of correspondence between the parties, as well as meetings,
apparently from 2013 till 2018. Eventually, the impugned demand
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Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:21.01.2025
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towards misuse charges dated 26.09.2018 was imposed by the
respondent/DDA, which was assailed in the present writ petition
instituted on 12.12.2018.
29. In the said backdrop, it is a matter of record that the whole
controversy was set at rest by this Court vide order dated 20.11.2019.
It would be expedient to reproduce the aforesaid order in toto so as to
understand the decisive stage of the present matter, which goes as
under:
“ 1. This is a writ petition whereby the challenge is laid by the
petitioner firm to the demand raised by the respondent DDA vide
communication dated 26.09.2018.
2. Notice in this petition was issued as far as back on 12.12.2018.
On that date, the respondent DDA was represented by Mr. Arjun
Pant, Advocate. The respondent DDA was accorded four weeks to
file a counter affidavit in the matter.
3. On the next date i.e. 25.02.2019, respondent DDA was
represented by another counsel i.e. Ms. Kanika Agnihotri,
Advocate. At request, further two weeks were granted to file a
counter affidavit in the matter.
4. Given the fact that no counter affidavit has been filed, despite
opportunity being given to the respondent DDA, the matter was
posted for further proceedings on 06.05.2019.
5. This time around as well counsel for the respondent DDA, Ms.
Kanika Agnihotri sought time to file a counter affidavit. The Court
granted a final opportunity in that behalf. Accordingly, two weeks
were granted subject to the condition that if counter affidavit was
not filed within the stipulated time frame, right to file the counter
affidavit will stand forfeited. The Court, thus, posted the matter for
09.08.2019.
6. On 09.08.2019, when the matter was re-notified for today,
between December, 2018 and November, 2019, the position vis-a-
vis the counter affidavit has remained the same.
7. The respondent DDA for some strange reason has not moved the
Court for variation of the order dated 06.05.2019 whereby as
noticed above, after granting time, the Court had put in a condition
of forfeiture of right to file the counter affidavit if the same was not
filed within the timeframe accorded.
Signature Not Verified
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Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:21.01.2025
18:36:04
Mr. Anish Dayal, who, appears on behalf of the petitioner firm
8.
says that the petitioner firm which is run by two persons are senior
citizens.
9. The record shows that the authorised representative of the
petitioner is, one, Sh. Jitendra Nath who in 2018 was aged 74
years.
10 . The grievance of the petitioner firm briefly is, that despite
having deposited the charges for conversion of the subject
property from lease hold to free hold as far back as in 2010, the
respondent DDA has not passed an order of conversion.
Mr. Dayal says that nearly three years after the petitioner firm
11.
had approached the respondent DDA with a request for conversion,
it was issued a show cause notice dated 04.10.2013 (in short “2013
SCN”).
12. Via the 2013 SCN, the respondent DDA called upon the
petitioner firm to show cause as to why misuser charges ought not
be levied on the petitioner firm for using the mezzanine floor as an
office and for misusing the various other portions of the subject
premises as well as for sub-letting the basement of the subject
premises to an entity by the name Universal Turbo Private Limited
(in short “UTPL”).
13. The petitioner appears to have filed a reply to the same which
is dated 16.12.2013.
13.1 In the reply, the petitioner firm adverted to the fact that they
had obtained a sanctioned building plan.
13.2 It was specifically pointed out that the approval qua the plan
which permitted use of mezzanine floor as office space had been
granted by the DDA on 05.01.1988. Copy of the building plan and
the sanction letter were enclosed with the reply.
14. Insofar the aspect relating to sub-letting was concerned, Mr.
Dayal informs me that since that was not articulated in those many
words in the 2013 SCN, the answer to that can be found in the
communication dated 04.07.2011 which is marked as Annexure P
and is available on page 150 of the paper book.
15. As per this communication, the petitioner firm appears to have
taken the stand that UTPL was a company which was promoted by
the very same gentlemen who were partners in the partnership firm.
The petitioner firm also attempted to convey that the partners who
were directors had equal shares in UTPL.
16. The record also shows that besides this, the petitioner firm also
took recourse to the RTI route and obtained information which, in
my view, would impact the result of this case one way or the other.
17. The notings which Mr. Dayal has referred to in particular are
those which are appended on pages 249, 251, 254 and 258 of the
paper book.
Signature Not Verified
W.P. (C) 13388/2018 Page 17 of 31
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:21.01.2025
18:36:04
For the sake of convenience, the same are extracted hereafter:-
17.1
“107/N
As per approval of Comm/LD _____ 28.4.2016 on pre
page may kindly be seen. Now if agreed we may send this
file to AO/IL for issue no due certificate to the effect that
nothing is outstanding against the unit. The processing
sheet in placed at page 61-62.
A.O/A.A.O./L.S.A
D. No. 150
Date 3-5-16
:
Opinion of Building Department NP-99
As per sanctioned Bldg. Plan Mez. Floor is marked as
office with an area of 34.64 sqm. However, the same is not
part of sanctioned FAR.
Hence in view of the above facts and
details/clarifications, Competent Authority vide its orders
dated 28.4.2016 (NP-106) has approved the following:
"We may process the conversion case of the unit
without charging the misuse charges on account of use
of Mez. Floor as office in view of the Sanctioned Bldd
Plan and in view of minutes dated 19.10.20l5 recorded
at NP-101 ”
Hence in view of above, facts and details, we may
again refer the file to finance wing for issuance of No
dues certificate to this effect that nothing is due against
the property in question.
Submitted please.
Asstt. Director (Indl.)
Dy. Director (Indl.) Director (Indl)
Director (L.C.)
It is submitted that site of plot was inspected on
12.2.1996 (P58/N),18.10.2005 122(CP) and misuse was
reported both the times, but due to non-availability of
SCNs in the file, no misuse has been levied as per terms
of circular (i) I of 26.3.2010. As per noting dated
14.2.96, the SCN was to be issued, but no notings for
the period 16.2.96 to 12.10.2005 is available in the file
and no SCN is available in the file with the result the
misuse cannot be levied. The Commissioner (LD) vide
his note dated 28.4.2016 at page 106/N has decided that
even the misuse of Mez floor as office as already
decided and worked out is not recoverable on account of
the sanctioned building plan.
In view of the poor condition of file and the fact that
there is provision for office in the sanctioned building
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W.P. (C) 13388/2018 Page 18 of 31
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:21.01.2025
18:36:04
plan, it is felt that we may not have any other option,
but to drop the misuse charges as worked out for Rs.
11,17,230/- which otherwise would also have been
reduced to 50% after rebate as per circular dated
4.8.2015 . Since the area of Mez floor is not the part of the
permissible/sanctioned FAR as per the sanctioned
drawing, the matter regarding levy of any other charges
because this area was not counted in the FAR may be seen
by the M/wing.
Submitted please.
Director (LC)
P-106/N
The last inspection was carried out on 26.08.2013
(CP-249), wherein it was found that the mezzanine
floor is used for storage. Hence, misuse is not leviable
since the same falls in the category of I(i) of Circular
dated 26.03.2010 .
Hence in view of the above facts”
18 . A perusal of the aforementioned notings would show that even
according to the respondent DDA because show cause notices were
not issued, after inspections carried out on 12.02.1996 and
18.10.2015 which revealed misuse and on account of plans being
sanctioned allowing use of mezzanine floor as office space which
otherwise was used for storage, it was not sanguine about
sustaining a demand for misuser charges.
19 . The difficulty, however, which the Court is faced with is that
the respondent DDA has not filed a counter affidavit and if one
were to take recourse to the strict rules of pleadings then
everything that the petitioner had said in the petition, since it has
not been transversed, will have to be accepted.
20. However, since it involves revenue, I intend to dispose of
the writ petition with following directions:
(i) The respondent DDA will process the application of the
petitioner firm for conversion, given the fact that parties have
deposited the requisite amount as far as back as in 2010,
notwithstanding the issuance of the impugned demand notice dated
26.09.2018.
(ii) The respondent DDA will accord a personal hearing to the
authorised representative of the petitioner firm with regard to
impugned demand and take a decision in the matter.
While taking a decision in the matter, the respondent DDA
(iii)
will bear in mind its own notings in the file concerning the
petitioner firm. In particular, the notings which have been referred
to herein above.
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W.P. (C) 13388/2018 Page 19 of 31
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:21.01.2025
18:36:04
Besides this, the respondent DDA will also keep in mind its
(iv)
extant mis-use policy; the copies/extracts of which are appended on
pages 216 to 219 of the petition.
(v) The authorised representative of the petitioner firm will attend
the office of the concerned officer on 02.12.19 at 11:00 am. In
case, the date fixed hereinabove is not convenient to the officer, he
will fix a date which is proximate to the date fixed by the Court.
(vi) The concerned officer will pass a speaking order. A copy of
which will be furnished to the petitioner firm and will also be
placed before the Court prior to the next date of hearing.
Renotify the matter for compliance on 20.12.2019.
21.
22. Needless to add, in case the petitioner firm is aggrieved by the
decision taken by the concerned officer, it will have liberty to take
recourse to an appropriate remedy as per law.”
30. It appears that since the aforesaid directions were not complied
with, the petitioner firm preferred CM APPL. 2779/2021, and
thereafter, a speaking order was passed dated 12.02.2021, which was
intimated to the petitioner firm and reads as follows:
“DELHI DEVELOPMENT AUTHORITY
LAND SALES BRANCH (INDUSTRIAL)
A-BLOCK, INA, NEW DELHI
No.F.5(89)83/LSB(I)//9/3 Dated: 12/2/21
Speaking Order
To
Sh. Jitendra Nath, Partner,
M/s. Nath International
R/o A-1/295, Safdarjung Enclave,
New Delhi 110029.
Ref.: Order dated 20/11/2019 of the Hon'ble High Court in
WP(C) No.13388/2018 titled "Nath International Corporation
Vs DDA ."
Whereas Plot No. D-86/1 ad-measuring 200 sqm. Okhla
Industrial Area Ph.I & Plot No. D-87 ad-measuring 200 sqm.
Okhla Industrial Area Ph.I were allotted to M/s. Nath International
Corporation (hereinafter called "petitioner firm").
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W.P. (C) 13388/2018 Page 20 of 31
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:21.01.2025
18:36:04
2. Whereas amalgamation of both the plots (D-86/1 & D-87 Okhla
Industrial Area Ph.l) (hereinafter called "the said plot") were
approved by VC, DDA vide note dated 07.10.1987 and conveyed
to petitioner firm vide letter dated 15.10.1987. Accordingly, lease
deed of amalgamated plot was executed on 03.05.1990.
3. Whereas a site inspection was carried out on 12.02.1996 wherein
it was found that basement was being used for Industrial Activity
and basement was subletted to M/s. Universal Turbo Pvt. Ltd.
Mezzanine Floor was being used for office purpose also.
4. Whereas it is further observed on perusal of file at P-58/N that,
the inspection report submitted by J.E.(I) on 12.02.96 wherein it
has been mentioned that SCN may please be issued and in last line
it has been written "continue pages" but no pages in continuation in
noting side were available on record till dated 13.10.2005. The new
noting at P-59/N is available on file on 13.10.2005 i.e. after gap of
9.5 years. The show cause notice was ordered to be issued on
14.02.1996 but same is not available on record. Merely non-
availability of show cause notice in correspondence side does not
mean that show cause notice was not issued and inspection report
is not correct.
5. Whereas petitioner firm vide letter dated 07.10.2005 requested
for permission to mortgage of the said plot. Therefore, another site
inspection was conducted on 18.10.2005 wherein it was found that
basement was being used for storage purpose and mezzanine floor
was being used for office purpose.
6. Whereas clause II(10) of perpetual lease deed inter-alia states
that, "The lessee shall in all respects comply with and be bound by
the building, drainage and other bye-laws of the proper municipal
or other authority for the time being in force."
7. Whereas petitioner firm had applied for conversion of said
property on 29.06.2010 in DDA.
8. Whereas as per the circular dated 26.03.2010 regarding misuse,
"cases where complaints / report about misuse is available on file
and show cause notices were issued but there was no response
from the allottee, a fresh site inspection to be done ."
9. Whereas misuse was available on file and direction for
issuance of show cause notice was given on 14.02.1996 but no
reply was available on record, therefore, a site inspection was
conducted on 21.10.2010 wherein it was found that basement
was being used for storage purpose and mezzanine floor was
being used for office purpose.
10. Whereas another site inspection was again carried out on
26.08.2013 wherein it was found that basement and mezzanine
floor were being used for storage purpose.
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W.P. (C) 13388/2018 Page 21 of 31
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:21.01.2025
18:36:04
11.
Whereas show cause notice dated 04.10.2013 was issued to
petitioner firm regarding misuse of mezzanine floor being used
as office purpose.
12. Whereas petitioner firm in its reply dated 22.01.2014 in
response of show cause notice dated 04.10.2013 itself agreed that
mezzanine floor is being used as office purposes as per sanctioned
building plan dated 05.01.1988.
13. Whereas, as per extant policy of DDA, Misuse charges are
leviable on account of misuse of said plot. Accordingly, a
demand dated 26.09.2018 was issued to petitioner firm for
misuse charges (mezzanine floor being used as office purpose),
balance conversion charges, subletting charges, ground rent
charges, interest on ground rent and interest on balance
conversion charges amounting to Rs. 20,34,832/- subject to
final review / verification of payment and dues by the Finance
Department.
14. Whereas Hon'ble High Court vide order dated 20.11.2019 in
WP(C) 13388/2018 in the matter of Nath International Corporation
Vs DDA wherein Hon'ble Court had directed DDA to accord a
personal hearing to authorized representative of petitioner firm and
will process the application of the petitioner firm for conversion.
15. Whereas a personal hearing was given by the Director (Indl.)
on 08.01.2020 at 11.00 Α.Μ. wherein it was decided that, as the
case is covered under category I(i) of circular dated 26.03.2010, no
misuse charges are to be levied. Minutes of the meeting were sent
to partners of M/s. Nath International Corporation vide letter dated
10.02.02020. Further, it was decided that matter may be referred
again to the Finance Wing for reviewing the misuse charges.
16. Whereas the file was referred to Finance Wing on 10.02.2020
and Finance Wing vide note dated 17.02.2020 intimated that the
issue regarding misuse of basement and mezzanine floor needs
further deliberation.
17. Whereas Building Department vide note dated 24.09.1995
intimated that the FAR of mezzanine floor recorded in sanction
drawing but it is over and above the permissible FAR as per
BBL 1983 and policy of the mezzanine at that time.
18. Whereas another meeting was held on 20.02.2020 in the
Chairmanship of Director (Indl.) wherein it was recorded by the
Dy. Director, LSB(I) that it is a case of tampering of file with
malafide intent and matter may immediately be referred to
Vigilance Department, DDA and the Hon'ble Court may be
informed about this recent development.
19. Whereas, in view of deliberation made in the meeting held
on 20.02.2020, the Commissioner (LD) vide note dated
25.02.2020 had withdrawn/cancelled his earlier approval dated
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Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:21.01.2025
18:36:04
28.04.2016 of proposal for proceeding the conversion cases
without charging of misuse charges on account of use of
mezzanine floor as office purpose.
20. Whereas in the meeting held on 20.02.2020, petitioner firm was
not called and new development has been deliberated in the said
meeting and earlier approval regarding non-levy of misuse charges
was withdrawn. Therefore, another personal hearing was given to
the petitioner firm on 11.02.2021.
21. Whereas, in the personal hearing, the issue of misuse charges
levied on mezzanine floor being used as office purpose as per
sanctioned building plan was deliberated in detail. Dy. Director
(Building) had intimated that the sanctioned plan which is available
in file, area statement along with FAR is not legible. Due to
illegible copy of the said plan, the issue of misuse charges levied
on mezzanine floor could not be further examined.
22. Whereas, it was requested to representative of petitioner firm to
provide a legible copy of the sanctioned building plan to DDA.
23. Whereas, demand raised vide letter dated 26.09.2018
includes only misuse charges of mezzanine floor, subletting
charges of basement and other dues but no misuse charges was
levied of basement being used for Industrial Activity as found
in the inspection conducted on 12.02.1996.
24. Whereas, Hon'ble court has also directed DDA to keep in mind
its own noting in the file concerning the petitioner firm. In
particular, the noting which has been referred to herein above,
beside this DDA will also keep in mind extant misuse policy.
25. Therefore, keeping in view of above and approval withdrawn
by Commissioner (LD) as mentioned in Para 19 above, the
representation of petitioner firm may not be disposed off in
absence of legible copy of sanction building plan, and this fact has
already been intimated to the petitioner in the meeting held on
11.02.2021. After receipt of said plan, DDA will re- examine the
misuse data of mezzanine floor being used as office purpose and
misuse charges of basement being used for Industrial activity
besides other charges applicable as per the extant policy of DDA.
(VINAY KUMAR)
Director/LSB(I)”
{Bold portions emphasized}
31. Although, it appears that reply-cum-representation dated
18.03.2021 alongwith a fresh legible copy of the sanction building
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W.P. (C) 13388/2018 Page 23 of 31
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:21.01.2025
18:36:04
plan was filed by the petitioner firm, there was no response from the
respondent DDA. In the said backdrop, the matter came up for hearing
before this Court on 21.09.2021, and the following order was passed:
“The hearing has been conducted through video-conferencing.
CM APPL. 32602/2021 (by petr. for directions)
1. The petitioner’s application for conversion to freehold of
property bearing no. D-86/1 and D-87, Okhla Industrial Area,
Phase 1, New Delhi-110020 has been pending for the past 11 years.
Directions were issued to DDA to grant the petitioner and to
personal hearing and to duly consider the application. On
27.01.2021, the following order was passed:
“CM APPL. 2779/2021 (by applicant/petitioner for
directions)
1. Despite a lapse of nearly 14 months since the order
dated 20.11.2019 passed by this Court directing the Delhi
Development Authority ('DDA') to hear the petitioner and
pass appropriate orders, no worthwhile compliance has
been made by it. The case having been first listed for
compliance on 20.12.2019, was again listed for
compliance on 26.02.2020; on the latter date, it was again
adjourned to 25.03.2020 at the DDA's request. Nothing
worthwhile has come forth from the DDA thereafter. The
case could not be taken because of en bloc adjournments,
hence this application.
2. In case the order dated 20.11.2019 is not complied with
within a period of one week from today, an affidavit shall
be filed by the Director, DDA, explaining therein the
reasons for delay in compliance.
3. The issue of imposition of costs, etc would be
considered on the next date.
...”
2. DDA heard the petitioner and say now that some documents are
missing from their records. But that can hardly be an issue now as
the application was supposed to have looked into the issue, a long
time ago.
3. The learned Senior Advocate for the applicant/petitioner submits
that the DDA had demanded Rs.20,34,832/- as conversion and
misuse charges. The partners to the petitioner firm are about 76 &
78 years of age; they are keeping infirm health; in the current
pandemic constrained times they are apprehensive about what the
future holds for them; they would like closure of the case at the
earliest; they are ready and willing to deposit the aforesaid amount,
without prejudice to their rights and contentions, so that the DDA
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W.P. (C) 13388/2018 Page 24 of 31
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:21.01.2025
18:36:04
can carry out the conversion to freehold. They are also willing to
give an undertaking indemnifying the DDA against any third-party
claims apropos such conversion.
4. Issue notice. The learned counsel named above accepts notice on
behalf of the non-applicant.
5. Let the Commissioner (LD) of the DDA look into the matter and
a reply affidavit be filed in 2 weeks, with his/her approval.
6. Without prejudice to the rights and contentions of the
parties, let the aforesaid monies be deposited in the court,
which shall be kept in an interest-bearing FDR, subject to
further orders.
7. List on 29.11.2021. 8.
The order be uploaded on the website forthwith.”
32. It appears that the matter remained in limbo on the part of the
respondent/DDA and the petitioner firm was again constrained to
move another CM APPL. 32602/2021, and upon hearing, the
petitioner firm was allowed to deposit a sum of Rs. 20,34,000/-,
without prejudice with the Registrar General of this Court, which was
evidently done as well.
33. In the aforesaid backdrop of the matter, it is really shocking to
find that even after such deposit, the respondent/DDA instead of
complying with the directions of this Court, filed additional affidavit
on 27.11.2021 through Mr. Aftab Alam, Deputy Director (Indl.)
whereby inter alia it brought to the fore that a fresh demand notice for
a sum of Rs. 60,65,000/- has been levied upon the petitioner firm for
misuse also inter alia bringing out that respondent/DDA has
misapplied 2014 policy on the file pertaining to the petitioner firm
whereas the policy of 2010 ought to have been applied.
34. To cut the long story short, as this Court found that the
additional affidavit dated 27.11.2021 and another affidavit dated
25.01.2022 filed on behalf of the respondent DDA were in deliberate
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W.P. (C) 13388/2018 Page 25 of 31
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:21.01.2025
18:36:04
defiance to the directions of this Court dated 20.11.2019, this Court
after alluding to the directions vide paragraph (20) of the order dated
20.11.2019 as well as Paragraph (25) of the Speaking Order dated
12.02.2021, passed the following directions on 08.01.2024:
“3. My attention has been drawn to a letter dated 16.12.2013
by the petitioner being a reply to the show cause, wherein a
copy of the sanction building plan has been annexed. Despite
the same, the respondent has asked for another copy of the
sanction plan. The sanction plan as asked for by the DDA is of
the DDA itself.
4. On one hand, the respondent is not complying with the
mandate of the order dated 20.11.2019 on flimsy and technical
grounds and on the other hand, the respondent further has
issued another demand notice dated 23.11.2021, wherein the
respondent, without complying with the order dated
20.11.2019, has raised a fresh demand and increased the
misuse charges to Rs. 60,65,332/-.
5. Hence, I am of the view that the respondent is guilty of non-
compliance of the order dated 20.11.2019.
6. Mr. Mohd. Aftab Alam, Deputy Director, LSB(I), DDA
(authorised representative of DDA) is required to show cause
as to why he should not be proceeded for contempt for
violation of the order dated 20.11.2019. An affidavit to show
cause as to why contempt proceedings shall not be initiated
against him shall be filed within 2 weeks from today.
7. List on 20.02.2024. 8. In case the respondent purges himself
of the contempt, this Court may be inclined not to take further
action.”
35. Audacious as it may seem, in complete defiance of the aforesaid
order/directions, the respondent/DDA then filed a fresh compliance-
affidavit through Mr. Vivek Chaudhary, Deputy Director (LSB-I)
dated 15.02.2024 and reiterating its stance as disclosed in the earlier
affidavits dated 27.11.2021 & 25.01.2022 referred hereinabove.
36. The foregoing discussion clearly highlights that the directions
of this Court dated 20.11.2019, which conclusively determined the
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W.P. (C) 13388/2018 Page 26 of 31
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:21.01.2025
18:36:04
issues involved in the instant matter, have not been complied with in
letter and spirit. What is also pertinent to mention is that speaking
order dated 12.02.2021, reproduced hereinabove, constituted a
complete volte-face from the decision taken by the respondent/DDA
as reflected by the minutes of meeting dated 08.01.2020, which goes
as under:
“During the meeting the issue of the misuse charges was placed
before Director (Indl.) for perusal in respect of plot No. D-86/1
&87, Okhla Indl. Area, Phase-I, New Delhi. In this property case,
on the basis of the site inspection reports, misuse data was firmed
up and further referred to finance wing after obtaining the approval
dated 28.05.2014 of then Director (Indl.) for working out the
misuse charges. The finance wing returned the file on 24.06.2014
after working out the misuse charges to the tune of Rs. 11,17,230/-
after the approval of Finance Minister.
During the meeting, the partners of M/s Nath International
Corporation has stated that they are not liable to pay any misuse
charges since their case is covered in the Cat.(i)(I) of misuse
circular dated 26.03.2010.
On perusal of the file, it was noted that on the basis of site
inspection reports dated 12.02.1996 and 18.10.2005 whereby
misuse was existing in basement and Mez. Floor. No show cause
notices were served to the unit. The unit submitted the conversion
application on 29.06.2010 and on receipt of conversion application
inspection was carried out on 01.11.2010 whereby Mez. Floor was
found under misuse. In the second instance, no show cause notice
was served to the unit. Further, as per site inspection report dated
26.08.2013 no misuse was existing. After the last site inspection,
show cause notice dated 04.10.2013 was served to the unit to show
cause within 15 days from the date of issue of that notice.
As per circular dated 26.03.2010 category i(I) clearly
states that cases where complaint/report about misuse is available
on file but Show Cause Notices were issued – Fresh inspection to
be done. In case the misuse is noticed then misuse charges to be
levied for a period from initial date of detection to the date of
filing of conversion application. Before levying such misuse,
SCN to be issued at this stage. However if the misuse is not
found during the fresh inspection, then misuse charges should
not be levied.
Signature Not Verified
W.P. (C) 13388/2018 Page 27 of 31
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:21.01.2025
18:36:04
The Commissioner (L.D.) vide his minutes dated
28.04.2016 at NP-106, approved that the unit is not liable to pay
the misuse charges as the said issue is covered in Cat.(i)(I) of
circular dated 26.03.2010. It was seen that the file was sent to
Finance wing for providing NOC on 06.07.2018, however, Finance
wing returned the file after calculation of other charges including
the earlier calculated misuse charges to the tune of Rs. 1117230/-.
After detailed discussion on the issue of misuse, it was
decided that, as the case is covered under Cat.(i)(I) of circular
dated 26.3.2010, no misuse charges are to be levied. Further, it
was decided that matter may be again referred to the Finance Wing
for reviewing the issue of misuse.”
37. The only contention which is advanced by the learned Standing
Counsel for the respondent/DDA is that the petitioner firm had sub-let
the basement and mezzanine floor to Universal Turbo , which violated
the terms and conditions of the lease agreement, and therefore,
subletting charges were calculated for the basement floor from
12.02.1996 to 18.10.2005 for an area of 152.2 sq.mts and covered by
the impugned demand letter dated 26.09.2018, thereby imposing the
other outstanding dues included in the demand of Rs. 20,34,832/-
raised in total without prejudice. It was urged that the misuse charges
had been erroneously calculated in terms of policy dated 22.02.2014,
which was valid for only period of 6 months, and therefore, as per
misuse policy dated 26.03.2010, a sum of Rs. 17,38,166/- towards
misuse of basement and Rs.25,00,000/- towards misuse of mezzanine
floor were calculated, and thus, it is stated that in terms of demand
letter dated 23.11.2021, issued during the course of proceedings, a
sum of Rs. 40,30,490/- is still payable by the petitioner firm. In view
of earlier decision on the matter vide minutes dated 08.01.2020, the
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W.P. (C) 13388/2018 Page 28 of 31
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:21.01.2025
18:36:04
respondent DDA cannot be allowed to approbate and reprobate in the
same breadth.
38. In summary, the impugned demand for misuse charges levied
by the respondent/DDA, pertaining to the period from 12.02.1996 to
18.10.2005, is unsustainable in law. There was no bar to prevent the
respondent/DDA from issuing a SCN subsequent to the inspection
dated 12.02.1996. However, the respondent/DDA raised a stale claim
for misuse charges after a lapse of more than seventeen years, vide the
impugned SCN dated 04.10.2013.
39. Furthermore, despite the petitioner's application for conversion
of the subject property from leasehold to freehold dated 29.06.2010,
no action was taken within a reasonable period by the respondent.
Notably, successive inspections did not reveal any misuse, rendering
the imposition of misuse charges unfounded. Additionally, the
petitioner firm's representation/reply dated 16.12.2013 was
disregarded, and without affording an opportunity of hearing, the
impugned demand was raised after an inordinate delay of almost five
years from the SCN, vide letter dated 26.09.2018. The petitioner
cannot be made to suffer for this delay.
40. At the risk of repetition, this Court, in paragraph (20) of the
order dated 20.11.2019 (reproduced hereinabove), had unequivocally
held that the demand for misuse charges was unsustainable. There is
no justification for this Court to deviate from its earlier directions,
which were not challenged by the respondent/DDA. It is evident that,
considering the revenue implications, the respondent/DDA was
afforded an opportunity to rectify its stance by this Court. However,
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Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:21.01.2025
18:36:04
instead of making a decision in accordance with the law in a fair and
impartial manner, the officials of the respondent/DDA have persisted
in attempting to justify their ill-conceived, illegal, and irrational
decision by any means, which cannot be countenanced in law.
Consequently, the decision dated 12.02.2021 by the respondent/DDA,
as well as the subsequent demand notice dated 23.11.2021 levied upon
the petitioner firm, cannot be sustained in law.
41. In view of the foregoing discussion, this Court has no hesitation
in allowing the present writ petition, consistent with the letter and
spirit of the directions passed on 20.11.2019. Moreover, the impugned
demand letters dated 26.09.2018 and 23.11.2021, the latter issued
during the pendency of these proceedings pursuant to the purported
speaking order dated 12.02.2021, are deemed unfair, arbitrary, and
unsustainable in law.
RELIEFS:
42. The decision dated 12.02.2021 is patently marred by
arbitrariness and contradicts the respondent/DDA's earlier decisions
on the matter, as reflected in the minutes dated 28.04.2016 and
08.01.2020. Consequently, the aforesaid demand letters issued by the
respondent/DDA are hereby quashed and set aside.
43. Further, the respondent/DDA is hereby directed to initiate the
process of conversion of the subject property from leasehold to
freehold, as per the petitioner firm's application dated 29.06.2010.
44. In view of the peculiar facts and circumstances of the case, it is
further directed that the respondent/DDA shall bear the entire cost of
purchasing stamp papers and registration charges. The
Signature Not Verified
W.P. (C) 13388/2018 Page 30 of 31
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:21.01.2025
18:36:04
respondent/DDA shall complete the entire process within a period of
eight weeks from the date of this judgement.
45. The court directs that the amount of Rs. 20,34,000/- deposited
by the petitioner firm, as per the court's directions dated 21.09.2021,
be released to the petitioner firm immediately, along with the accrued
interest.
46. The pending applications are disposed of accordingly.
DHARMESH SHARMA, J.
JANUARY 20, 2025
Sadiq
Signature Not Verified
W.P. (C) 13388/2018 Page 31 of 31
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:21.01.2025
18:36:04