i 1^' $~ * IN THE HIGH COURT OF DELHI AT NEW DELHI 11 + W.P.(C) 1047/2007 & CM APPL No. 1838/2007 DALIP SINGH Petitioner Through Mr. S.D. Singh with Mr. Rahul Kumar and Ms. Bharti Tyagi, Advocates versus STATE OF NOT OF DELHI & ANR Respondents Through Mr. V.K. Tandon, Advocate And 2+ W.P. (C) 8298/2007 & CM APPL 15685/2007 DALIP SINGH Petitioner Through Mr. S.D. Singh with Mr. Rahul Kumar and Ms. Bharti Tyagi, Advocates versus LT GOVERNOR OF DELHI & ORS Respondents Through Mr. Darpan Wadhwa with Ms. Sheena lype, Advocate CORAM: JUSTICE S. MURALIDHAR ORDER % 04.05.2010 1. These two petitions between the same parties arise out of a common set of facts and are being disposed of by this common order. 2. The prayer in Writ Petition (Civil) No. 1047 of 2007 is for a direction to the Respondents to supply to the Petitioner the application form and other relevant documents to enable him to apply for conversion of Plot No.6, Functional Industrial Estate, Patparganj, New Delhi ('the said property') from leasehold to freehold. W.P. (C) Nos. 1047/2007 & 8298/2007 Page 1 of 12 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified 3. The prayerin WritPetition(Civil)No. 8298 of2007 is for quashing the impugnedorder dated 11^^ September2007 passed by the Deputy Commissionerof Industries, Land II Branch determiningthe lease deed in respect of the said property. The challengeis also to show cause notice dated 5 May 1998 which led to the passing of the impugnedorderdated 11"" September2007. 4. This is the secondroundof litigation.The brief facts arethatthe said property measuring 450 sq.m was leased out to the Petitionerby a lease deed executedon 8^*" October 1991 for runningthe industryof PVC cables.Ashowcausenoticedated5* May 1998was issuedto the Petitonerby the DeputyCommissionerof Industriesallegingviolation of Clauses II (13), 5 (a) and 11 (3) of the lease deed. The specific grounds were: "(i) Building sold to Shri Naveen Jain. (ii) One single building has been constructed on two plots i.e. Plot No. 6 and Plot No. 15." 5. In response to the above show cause notice the Petitioner submitted a reply on 5'*^ June 1998. He was asked to appear before the Commissioner of Industries, Govt. of NCT of Delhi ('GNCTD') for a personalhearingon 12'*^November1998. However,he did not appear. Thereafterby an order dated 3'"'' February 1999 the lease deed was cancelled. The Petitioner filed an appeal before the Lieutenant Governor('LG') whichwas rejectedby an orderdated24^*^ June 1999. 6. The Petitioner filed Writ Petition (Civil) No.4280 of 1999 in this W.P. (C)Nos. 1047/2007 & 8298/2007 Page 2 of 12 I/' Court challengingthe orders dated 3''' February 1999 and 24^^ June 1999. By an order dated 14''^ January 2005 this Court set aside both these ordersand remandedthe matterto the competentauthorityfor a fresh decision. The Petitionerwas permitted to appear through an authorizedrepresentative.A directionwas issued for completionof proceedings before the competent authority, Deputy Secretary (Industries), within three months. Ip 7. Pursuantto the above order hearingswere held beforethe Deputy Secretary (Industries) on 28^ February 2005 and 10^*^ May 2005. Documents were submitted by the Petitioner in respect of his claim and a fresh inspection was carried out at the said property. It was reported that "the occupant is running a Banquet Hall in the name and style of Sanjog and also a restaurant/bar under the name and style of Rajmundra. Considering the persistent violations in terms of the above inspection reports, an order dated 17^*^ January 2006 was passed determining the lease of the said property. 8. Aggrievedby the aboveorderdated 17^*^ January2006 the Petitioner filed Writ Petition (Civil) No. 1454 of 2006 on January 2006. By the order dated 20^*^ March 2007 the said order was set aside on the short ground that it was passed by one Shri S.K. Singh whereas the Petitioner has been heard by Ms. Rashmi Krishnan, Deputy Secretary, Industries (Land). The matter was again remanded to the Deputy Commissioner of Industries (Land). W.P. (C) Nos. 1047/2007&8298/2007 Page3of12 • t T \i' 9. The Deputy Commissioner of Industries (Land) by the impugned orderdated 11^^ September2007 arrivedat the followingconclusions: (a) The claim of the Petitioner that Mr. Naveen Jain was only a Chartered Accountant by profession and the plot has not been sold to him and the subsequent filing of the affidavit of Mr. Naveen Jain to the same effect was "nothing but a mere afterthought and an attempt to camouflage the same on receipt of the show cause notice." Moreover the non-appearance of the Petitioner before the Deputy Commissioner of Industries to verify the above facts would lead to an adverse inference being drawn against the Petitioner. (b) The documents produced to show that a separate building existed on the Plot No. 6 were all for the period prior to the date of show cause notice" and therefore, could be relied upon for appreciating the claim of the applicant in rebuttal to the allegations made in the show cause notice. Further, even if it was presumed that the Petitioner carried out initiaT construction as per plan "he seems to have deviated from the same" and "the said deviation was noticed during inspection resulting in issue of show cause notice." (c) The statementmade by the Petitionerin his reply dated 5^*^ June 1998 that for a temporary period i.e. till the completion of construction activity, "a very narrow opening in between (That too without any type of frame and door)" showed that there was amalgamation. \N.P. (C)Nos. 1047/2007 & 8298/2007 Page 4 of 12 (d) Subsequent visits to the said property at the time of consideration of appeal revealed that there were two banquet halls and restaurant functioning in the said plots by amalgamating them, giving credenceto the department's contention. 10. This Court has heard the submissions of Mr. S.D. Singh, learned Counsel for the Petitioner, Mr. V.K. Tandon and Mr. Darpan Wadhwa, learned counsel for the Respondents respectively. 11. At the initial stage on 11^ December2007 this Court passed an interim order directing the Respondents not to dispossess the Petitioner subject to his filing an affidavit undertaking not to use the premises for any purpose other than what was permitted in the lease deed and the Master Plan for Delhi ('MPD'). An affidavit of undertaking has been filed by the Petition in those terms. 12. This Court first takes up for consideration the question of the legal validity of the impugned order dated 1 September 2007 passed by the Deputy Commissionerof Industries terminating the lease deed. If the Petitioner succeeds on this aspect then the question of the Petitioner's prayer for conversioncan be considered. 13. In the show cause notice dated S'*" May 1998 there were two principalallegationsconcerningbreachof the terms of the lease deed by the Petitioner.The first was that the buildingconstructedthereon had been sold to one Mr. Naveen Jain. As regards this aspect the stand W.P. (C) Nos. 1047/2007&8298/2007 Page5of12 1- of the Petitioner was that Mr. Naveen Jain was a companion of the Architect Mr. Sarad Jain and visited the site for the purpose of supervision of construction work and consultancy. It was further pointed out that Mr. Naveen Jain was a Chartered Accountant by profession and was only helping the Architect Mr. Sarad Jain. The Deputy Commissioner doubted his claim on the ground that a Chartered Accountant cannot supervise and provide consultancy on construction work "which is not his field of expertise". This Court fails ^ to appreciate this conclusion of the Deputy Commissioner of Industries. Mr. Naveen Jain obviously did not have expertise in construction. He was, however, known to the Architect Mr. Sarad Jain and was helping out Mr. Sarad Jain. Further Mr. Naveen Jain filed an affidavit stating as under: " 1. That I am Chartered Accountant by profession and I have never purchased any property owned by Dalip Singh, such as Plot No. 6, FI Patparganj, Delhi. 2. That Mr. Sharad Jain, Architect was carrying out the supervision and construction at the above said plot at relevant point of time and I was consultant to Mr. Jain and as such I used to visit the site frequently for the purposeof supervisionof constructionand consultancyin the year 1997-98. I have no concern with the said property at all. Sd/- Deponent" 14. There was no basis on which the Deputy Commissioner of Industries could have disbelieved the above affidavit. There was no need for the Petitioner to verify the said facts. W.P. (C) Nos. 1047/2007&8298/2007 Page6of12 /•) 15. If there were doubts about transfer of ownership of the said property, the property records could have been examined or information sought from the registering authority. It is not understood why the non-appearance of the Petitioner should result an adverse inference being drawn against him. Mr. S.D. Singh, learned counsel for the Petitioner had appeared before the Deputy Commissioner of Industries having been duly authorized by Mr. Raj Kumar Gupta, the power of attorney holder of the Petitioner. An affidavit to this effect has been filed by him before this Court in Writ Petition (Civil) No. 4280 of 1999. By an order dated 14"^ January2005 passedinthe said writ petition this fact was acknowledged and the following order was passed: "The relevant affidavits have been filed by Shri Dalip Singh and Raj Kumar Gupta in pursuance to the orders dated 19* August2004 statingthat there is no transaction between the parties for consideration and that no agreement to sell has been executed between the parties or with any third party and the possession has not been parted with by Shri Dalip Singh. In view of the aforesaid position as well as the fact that in the earlier proceedingsin WP (C) 3435 of 1999 passed on 27* May 1999 as also proceedingsheldpriorto thatbefore the competent authority, it is agreed that the impugned orders of the competent authority be set aside and the matter be remanded back to the competent authority to determine the matter afresh in pursuance to the show cause noticedated3*May 1998. It will be opento the Petitioner to requestfor an inspectionof the propertyand to file any further responseto the show cause notice withina period of four weeks from today. W.P. (C) Nos. 1047/2007&8298/2007 Poge7of12 > The Petitioner shall appear in person or through duly authorized representative before the competent authority beingDeputySecretary(Industries)on 28^'' February2004 at 3.00 pm for further proceedings. The competent authority shall endevour to competent proceedings within a maximum period of three months of the said date. Needless to say that in case of any adverse finding, it will be open to the Petitioner to impugn the said decision in accordance with law." 16. After the above order by this Court, it was not open for the Deputy Commissioner of Industries to draw an adverse inference on account of the non-appearance of the Petitioner when he was represented through a power of attorney by a lawyer who had been permitted to appear on his behalf. 17. In the considered view of this Court, the first ground on which the breach of lease was alleged by the Respondents, was not, therefore, substantiated. 18. As regardsthe constructionof one buildingon two plots i.e. Plot No. 6 and Plot No. 15 resulting in amalgamation,the Petitioner has been maintainingthroughoutthat these are two separate buildings. Whilethe Petitioner'splot is PlotNo. 6, the PlotNo. 15 belongsto one Mr. Ajay Gupta.His casehas beenthat exceptfor a narrowopeningin betweentwo propertiesfor a temporaryperiodtill the completionof construction,there is no interconnectionbetweenthe two properties. 19. Since this was one of the main grounds on which the lease was M/.P. IQ Nos. 1047/2007&8298/2007 Poff®^ sought to be terminated, this Court, after hearing the matter at some length, passed the following order on 27 April 2010 at the instance of learned counsel for the Respondents. The said order reads as under: "1. At the request of Mr. Tandon, learned counsel for the Respondents, the case is adjourned for two purposes: (a) a Senior Officer of the Respondent will be deputed to the site and to take photographs of whatever construction has been effected on Plot Nos. 6 and 15. The Petitioner is also permitted to produce a set of photographs. (b) production of a report, if any, of any inspection carried out of either of the plots by the Estate Officer, either previous to the issuance of the show cause notice to the Petitioner or subsequent thereto. In any event, the entire records of the case be kept ready for perusal by this Court on the next date of hearing. 2. List on 4^*" May 2010. Orderbe given dasti to learned counsel for the parties under the signature of the Court Master." 20. Pursuant to the above order, an inspection was carried out of the said property.A copy ofreportdated 30'^ April 2010 has been placed on record together with photographs.These leave no mannerof doubt that the buildings in the said properties i.e. Plots No. 6 and 15 are separate and are not amalgamated. The Deputy Commissionerof Industries as well as the Estate Manager who carried out the inspection have confirmed this fact. Also placed on record are copies of the earlierinspectionreportsdated 4'^ February1999, 20**^ May 2005 and 9'^ July 2009. As regardsthe reportdated 4* February1999 it simply W.P. (C) Nos. 1047/2007&8298/2007 Pofiic5of12 /), states that "construction of one building on two plots i.e. Plot Nos. 6 and 15 have already been indicated." No photographs have been enclosed. There is no rough sketch plan or any other document to support the above conclusion.A status report dated 20^*^ May 2005 states that "it also appeared that there is an interconnected way/door that amalgamate the plot." It was suggested that "we may either got the videography or took photographs for strengthen our side." However that was obviouslynot done. Again inthe reportdated 9^*^ July 2009 it is stated as under: "Enquiry from adjacent premises reveals that there is no activity of any kind in the premises since several years. There appears to be amalgamation with Plot No. 6 which is behind the Plot No. 15." 21. To say the least, the above reports hardly constitute convincing proof that the two plots have been amalgamated. On the other hand the photographsproduced with the report dated 30^^ April 2010 clearly show that there is no such amalgamation of the plots. This exercise of taking contemporaneous photographs by spot visits to the said property would have easily resolved the issue for the Deputy Commissioner of Industries. Instead he has chosen to proceed entirely on conjectures and surmises. 22. About the use of the suit property for a banquet hall and restaurant, again there is absolutely no videograph or photographs placed on record to substantiate this. In any event the Petitioner has filed an affidavit by way of undertaking that he will use the said property strictlyin accordancewiththeconditionsas stipulatedinthe leasedeed l/l/.P.(C) Nos. 1047/2007&8298/2007 Page10of12 V and the MPD. 23. For all the above reasons this Court concludes that the impugned tVi order dated 11 September 2007 terminating the lease deed of the Petitioner is unsustainable in law. The impugned order is hereby set aside. 24. Taking up Writ Petition (Civil) No. 1047 of 2007, learned counsel for the Petitioner submits that the Respondent shall communicate to the Petitioner the arrears of ground rent required to be paid by the Petitioner. Thereafter the Petitioner will clear those arrears of ground rent and proceed to apply for conversion. This submission of the Petitioner appears to be reasonable. 25. In view of the fact that the order dated 11^^ September 2007 cancelling the lease deed has been set aside, it is directed that the Respondentswill communicateto the Petitionerwithin a period of two weeks from today the arrears of ground rent that are liable to be paid by the Petitioner. Within a further period of four weeks the Petitioner will deposit the entire arrears of ground rent with the Respondents. Within two weeks of the deposit of the said arrears of ground rent, the Respondentswill supplyto the Petitionerthe necessaryformsto enable him to apply for conversion.If the Petitionermakes an applicationfor conversion of the said property from leasehold to freehold, the Respondentswill processsuch applicationin accordancewith law and conveythe decisionto the Petitionerwithin eight weeksthereafter. W.P. (C) Nos. 1047/2007&8298/2007 Page 11of12 26. With the above directions, both writ petitions are allowed with costs of Rs. 10,000/-each which will be paid by the Respondentsto the Petitioner within four weeks from today. 27. Order be given dasti to learned counsel for the parties. MAY 04, 2010 rk W.P. (C)Nos. 1047/2007 & 8298/2007 S. MURALroHAR, J Page 12 of 12