W.P. No. 7792/2009 Page 1 9. * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 7792/2009 Date of decision: 22nd March, 2010 HOTEL SWAGAT PALACE ..... Petitioner Through: Mr. Satish Bajaj and Mr. Madhur Bajaj, Advocates. versus MCD ..... Respondent Through: Ms. Maninder Charya and Ms. Apurva Kothari, Advocates for MCD. Mr. Ashwani Bhardwaj, Advocate with Mr. Jitender Choudhary for Respondent No.2. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA O R D E R 1. By conveyance deed dated 8th March, 1967, Land and Development Office sold and transferred flat No. F-2, Desh Bandhu Gupta Market, Karol Bagh, New Delhi to Mr. Ainshi Lal. It is admitted case of the parties that subsequently the said flat was purchased by the petitioner, who is using the same as a hotel under the name of Hotel Swagat Palace. 2. The petitioner had obtained licence for operating a hotel from Municipal Corporation of Delhi in the said property in the year 1990. It was thereafter renewed from time to time till 2006. On 13th July, 2006, the petitioner applied for renewal but the application was rejected vide letter dated 25th July, 2007 on the ground that the petitioner had not deposited conversion and parking charges. 3. The petitioner thereafter served a notice under Sections 477 and 478 of the Delhi Municipal Corporation Act, 1957 on the respondent on 29th W.P. No. 7792/2009 Page 2 August, 2007. The petitioner wrote some other letters but without positive response. 4. The petitioner filed W.P. (C) No. 9041/2008, which was disposed of on 19th December, 2008 setting aside order dated 25th July, 2007 passed by Municipal Corporation of Delhi rejecting renewal application of the petitioner. Municipal Corporation of Delhi was asked to re-consider the application for grant of licence. After disposal of the writ petition, the petitioner again submitted some documents but by the impugned order dated 10th February, 2009 the application for renewal has been dismissed. Order dated 10th February, 2009 records as under:- “In reference to your application dated 21.08.2008 and as per the order of High Court dated 19.12.2008 in the matter “Hotel Swagat VS MCD” your case has been considered by the department after obtaining the report from Building Development (HQ) MCD and as per direction/observation you have to pay the conversion charges as well as parking charges for the upper floors of property no. F-2-3 D.B. Gupta Mkt., Karol Bagh, then only the Health Trade License can be renewed.” 5. The petitioner‟s application by the impugned order dated 10th February, 2009 has been rejected for failure to deposit conversion as well as parking charges. It is the contention of the petitioner that he is not liable to pay the same as flat No. F-2, Desh Bandhu Gupta Market, Karol Bagh, New Delhi is a commercial property and not residential property. The stand taken by the respondent-Municipal Corporation of Delhi in their counter affidavit is that flat No. F-2, Desh Bandhu Gupta Market, Karol Bagh, New Delhi is a residential property and not commercial property and, therefore, petitioner is liable to pay conversion and parking charges as the petitioner W.P. No. 7792/2009 Page 3 wants to use the residential property for commercial purposes. It is stated that these charges are payable under Master Plan of Delhi 2021 even if the area has been declared as a commercial area. 6. Clause 4 of the registered conveyance deed dated 8th March, 1967 reads as under:- “The said allottee shall not use the said shop/flat No.2 for any purpose other than the purpose of residence/business and the said allottee shall not use the said staircase for any purpose other than the purpose of the staircase without previous consent in writing of the Government and shall not do upper floor allottee anything which shall cause annoyance or inconvenience to the owners and/or occupants of adjoining shop/flat together with the use in common with the owner of the adjoining first floor being No Flat1 and 3, 4-5 6-7 the stair case and a passage and the open space in front leading to the stair case and also land under the staircase (shown hatched in ………….colour on the plan annexed hereto.)” 7. Photocopy of the said registered conveyance/sale deed has been placed on record. As is apparent from above, the word „residence‟ has been scored off in Clause 4. Thus, as per the aforesaid clause, the property can be used for business. In spite of the said clause, the respondent-Municipal Corporation of Delhi had submitted that the flat could be only used for residential purpose and not for commercial purpose as per records available with them. It was stated that 28 shops on the ground floor can be used for commercial purpose but not the 7 flats which are located on the first floor. 8. To clarify doubts, notice was issued to L&DO and they have filed affidavit. In the said affidavit, it is stated that the file relating to flat No. 2, W.P. No. 7792/2009 Page 4 Desh Bandhu Gupta Market, Karol Bagh, New Delhi was transferred to MCD on 5th May, 2006 and the entire record is now available with MCD. Along with the said affidavit, L&DO has enclosed notification dated 24th March, 2006 whereby L&DO had transferred files of markets in several colonies to NDMC and MCD. Annexure II is the list of markets, which were transferred to MCD. The said list mentions 79 market complexes. At serial No. 4, Desh Bandhu Gupta Market has been mentioned with the following remarks: “ Sr. No. Name of the Market 4. Desh Bandhu Gupta Mkt. (i) Shops (ii) Comm. Flats ” 9. With reference to some other markets, like Khursid Market, in Annexure II specific remarks have been made to clarify that the shops and commercial flats have been transferred. With regard to Kamla Market, it is mentioned that shops and residential flats over the shops have been transferred. 10. The petitioners have also placed on record letter dated 11th December, 1995 by L&DO stating that as per record/lease deed dated 8th March, 1967, flat No. 2, Desh Bandhu Gupta Market, Karol Bagh, New Delhi is for business purpose. By another letter dated 3rd January, 2005, L&DO has confirmed use of flat No. 3, Desh Bandhu Gupta Market, Karol Bagh, New Delhi, which is an adjacent flat, is for business. The petitioner has also placed on record copy of letter dated 14th August, 1991 issued by Deputy Commissioner of Police (Licensing) by which the petitioner was W.P. No. 7792/2009 Page 5 permitted to keep a place for public entertainment consisting of 12 rooms with 12 beds. The aforesaid documents clearly show that the petitioner as per the lease deed/conveyance deed was permitted to use flat No. F-2, Desh Bandhu Gupta Market, Karol Bagh, New Delhi for business purpose and the prescribed user was not residential. 11. Learned counsel for the MCD has drawn my attention to the site maps with the conveyance/lease deed, affidavits filed by Mr. Ainshi Lal, Ms. Ramesh Kumari and Ms. Chanchal Kumari on 22nd July, 1970 and the form for sale permission for transfer of rights in flat No. 2, Desh Bandhu Gupta Market, Karol Bagh, New Delhi dated 17th April, 1967. The site plan for flat No. 1 is not relevant. In the site plan for flat No. 2, rooms have not been specifically demarcated and the site plan merely records rooms and verandas, open courtyard, kitchen, bath, W.C., etc. This site plan alone does not show and establish that the property can be only used for residential purpose. Kitchen can be provided in a flat which can be used for business purpose. Affidavits of Ms. Ramesh Kumari and Ms. Chanchal Kumari it is apparent are on standard formats, which are prescribed and have to be filed in each case. The affidavits state that the deponent, their husband/wife or dependent children do not own residential plots or houses in Delhi. This does not mean that the property can be used for residential purpose and not for commercial purpose. This is not stated in the affidavits. Form for sale permission dated 17th April, 1967 states that the property was being used both for commercial and residential purpose. The said form in fact goes against the stand of MCD that the property, i.e., flat No. 2, Desh Bandhu Gupta Market, Karol Bagh, New Delhi could be used for residence and not for commercial purpose by the then owners. This form of transfer was filed immediately after W.P. No. 7792/2009 Page 6 execution of the sale deed on 8th March, 1967. In case there was violation of the conveyance deed or misuse, L&DO would have taken immediate action, specially in view of the admission in the said form that the property was being used for commercial purpose. 12. Learned counsel for the respondent-Municipal Corporation of Delhi submitted that there is interpolation in the lease/conveyance deed. The respondent-Municipal Corporation of Delhi has not filed copy of the lease deed/conveyance deed available on their records. Allegation of interpolation or fabrication cannot be accepted on mere surmises and suspicion specially in view of the documents and evidence placed on record by the petitioner. However, it is open to the respondent-Municipal Corporation of Delhi to conduct an enquiry to verify whether the flat No. 2, Desh Bandhu Gupta Market, Karol Bagh, New Delhi and other flats in the area were allotted for commercial purpose or residential purpose and then take appropriate action in accordance with law. 13. In view of the aforesaid discussion, the impugned order dated 10th February, 2009 is quashed. The respondent-Municipal Corporation of Delhi will re-consider the application for renewal of licence on the basis that the flat No. 2, Desh Bandhu Gupta Market, Karol Bagh, New Delhi as per the lease/conveyance deed dated 8th March, 1967 can be used for business purpose. This exercise will be completed within two months. 14. The writ petition is disposed of. In the facts and circumstances of the case, there will be no order as to costs. SANJIV KHANNA, J. MARCH 22, 2010 VKR