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2006 DIGILAW 110 (DEL)

VIKRAMJIT KAPOOR v. UNION OF INDIA

2006-01-17

PRADEEP NANDRAJOG

body2006
PRADEEP NANDRAJOG, J. ( 1 ) BY and under a perpetual lease deed dated 31. 8. 2004, 400 square yards of land bearing plot No. 12, Block C-2, Safdarjung Development Residential scheme, New Delhi was demised in perpetuity to the petitioner. As per the lease, plot was stated to be a residential plot and the petitioner was obliged to construct a residential building on the plot and was further obliged to use the building for a residential purpose. ( 2 ) HAVING constructed a building on the plot, after obtaining the requisite sanctions, with effect from 25. 7. 1989 petitioner put the building to use as a guest house. Said use continued till 1. 10. 1996. ( 3 ) THE guest house was providing accommodation to those who wished to use the same. It was more in the nature of a boarding-cum-lodging place. No food was served to outsiders, i. e. , non residents of the guest house. ( 4 ) IN the year 1993, a conversion scheme was introduced by the Government of India. The same was adopted by DDA. The conversion scheme envisaged conversion of lease hold tenure to free hold upon payment of a charge called conversion charges. ( 5 ) VIDE application No. 340608 dated 26. 9. 1993 petitioner sought conversion and deposited Rs. 48,523/ -. ( 6 ) CONVERSION is being denied for the reason DDA claims misuse charges with effect from 25. 7. 1989. Petitioner denies liability to pay any misuse charges. ( 7 ) ISSUE raised for adjudication is, whether use of the premises as a guest house amounts to a misuse? ( 8 ) POST 1. 8. 1990, issue stands conclusively decided by a decision of a learned Single Judge of this Court reported as 2003 III AD (Delhi) 634, Ashwani kumar Khanna Vs. DDA. ( 9 ) LAND use is prescribed under the Master Plan for Delhi. Master Plan for Delhi is a statutory plan notified under the Delhi Development Act, 1957. The plan has the force of law. While promulgating Master Plan for Delhi-2001 in the month of August 1990, a concept of mixed land use was introduced. Guest houses were permitted in residential buildings. ( 10 ) TAKING note of the aforesaid provisions of the MPD-2001, learned single Judge of this Court, in the decision in Ashwani Kumar Khanna s case (Supra) held as under :-"14. While promulgating Master Plan for Delhi-2001 in the month of August 1990, a concept of mixed land use was introduced. Guest houses were permitted in residential buildings. ( 10 ) TAKING note of the aforesaid provisions of the MPD-2001, learned single Judge of this Court, in the decision in Ashwani Kumar Khanna s case (Supra) held as under :-"14. I have considered the submissions advanced by the learned counsel for the parties. I consider it appropriate to first deal with the issue of the allegation of misuser of the property in question. Learned senior counsel for the petitioner referred to the provisions of the Master Plan, which had even been dealt with in the aforesaid judgments, as also the Master Plan-2001 to submit that such lodging and guest houses are permitted as residential user. I find force in the contention of the learned senior counsel for the petitioner. In fact, this aspect of user of the residential premises for residence of more than one person has been considered in R. Ramanujam s case (Supra) and Bawa holiday Home s case (Supra ). It has been held that character of the residential lease does not change and remains residential. It may also be noticed that it would make no difference to the residential use merely by reason of the fact that instead of the owner running the guest house himself, it is the tenant running the same. It is the user which is the relevant and not who runs the guest house. It may also be noticed tht in the judgments in question, it is the tenant who was running the guest house. Insofar as plea of the respondent in this behalf is concerned, the same is based on a letter issued to one of the persons and which has been filed along with the rejoinder of the petitioner. However, different letters have also been placed on record with the rejoinder where there is no such restriction. There are restrictions in terms of the number of uses, the number of rooms used and the number of guests in a room. The common thread, however, which runs through them is that no restaurant or eating place could be open except to the occupants of the building. There are restrictions in terms of the number of uses, the number of rooms used and the number of guests in a room. The common thread, however, which runs through them is that no restaurant or eating place could be open except to the occupants of the building. The judgments mentioned above have also considered this aspect and came to the conclusion that it is only when non-residents are permitted use of restaurant and eating place, the user becomes a commercial user. 15. Once the Master Plan itself prescribes the residential user as residences, hotels and boarding houses, this provision cannot be watered down. I am also unable to appreciate the contention of the learned counsel for the respondent that the guest house should be a part of the approved lay-out plan or some special permission should be obtained when it is a permissible residential user. Even if there is a requirement of seeking permission for running the guest house, running of the same without such permission cannot convert the user from residential to commercial . 16. Insofar as letter of the petitioner Annexure P-7 as noted above is concerned, the same will not be any assistance to the respondent, since by a letter written by the petitioner, the user can neither be converted into commercial, if it is residential or vice-versa. The said letter has been written in the context of the objections of the respondent and the petitioner has stated that even the said guest house, which was running, had ceased to be so run in the premises. In that context, the petitioner had agreed to pay restoration charges. However, the restoration charges would be payable if there was violation of the terms of the lease, which had resulted in valid termination of the lease. That not being the position, the said letter cannot be used to impose liability on the petitioner. 17. I am, thus, of the considered view that the respondent is not entitled to recover the misuse charges of Rs. 6,94,975/- or any other sur-charge (s) thereon. " ( 11 ) THAT leaves the issue to be decided prior to the promulgation of the master Plan for Delhi-2001. 17. I am, thus, of the considered view that the respondent is not entitled to recover the misuse charges of Rs. 6,94,975/- or any other sur-charge (s) thereon. " ( 11 ) THAT leaves the issue to be decided prior to the promulgation of the master Plan for Delhi-2001. What is a residential use" ( 12 ) ACCORDING to the respondent, use of the premises as a guest house amounted to a commercial use, for the reason business of running a guest house was being carried out by the petitioner and business activity was with a profit motive. Per contra, Shri Harish Malhotra, learned Senior Counsel appearing for the petitioner urged that the concept of a residential use is much wider than a concept of a residential house. Counsel urged that even under the previous master Plan for Delhi which was in force from the year 1980 till the year 1990, provisions relating to use zones? provided/permitted residential users being residences, hostels and boarding houses . ( 13 ) IN the decision reported as 1972 RCJ 815 Smt. Savitri Devi Amar Vs. A. M. Bose, in para 11, it was observed as under:-"11. On the contrary the purpose of paragraph 2 (6) of the lease is to promote town planning in the city of Delhi. This is why plots for house building are granted indicating the purpose for which the house built thereon are to be used. For instance at page 48 of the Master Plan for Delhi under the heading provisions regarding uses in use Zones -Residential-Uses Permitted are the residences, hostels and boarding houses etc. All are included in residential uses together with various other uses which are only incidental to residential purposes. The concept of a residential use is thus much broader than the concept of a residential house in the Rent Control Act. The finding by shri P. K. Jain, therefore, that the premises are let out for a residential use within the meaning of the lease and the Master Plan but not within the meaning of clause (e) of the proviso to sub-section (1) of Section 14 of the Delhi Rent control Act, 1958. The appellant cannot, therefore, press his claim for eviction under clause (e) by availing himself of the finding of the civil court which is res-judicata between the parties. The appellant cannot, therefore, press his claim for eviction under clause (e) by availing himself of the finding of the civil court which is res-judicata between the parties. " ( 14 ) LEARNED Counsel for the respondent relied upon a decision of the supreme Court reported as (2000) 2 SCC 494 NDMC Vs. Sohanlal Sachdev. Counsel urged that the said decision held that use of a premises as a guest house was a commercial use. ( 15 ) DECISION in Sohanlal Sachdev s case (Supra) shows that the issues raised was whether NDMC could apply tariff in the non-domestic category in respect of a guest house. Though, their Lordships of the Supreme Court, while referring to the user have used the word commercial. A perusal of para 2 and 3 of the decision shows that the core question being considered was whether use of premises for the purposes of a guest house can be termed as "domestic use" or whether it was "non-domestic use". ( 16 ) THEIR Lordships of the Supreme Court relied upon an earlier decision reported as 1996 (8) SCC 27 , Municipal Corporation of Greater Bombay Vs. Mafatlal Industries. Decision in Mafatlal s case (Supra) shows that the tariff category considered was "private residential premises". ( 17 ) IN para 4 of the decision their Lordships held as under:-"on a plain literal meaning being given to each of the words in the expression "exclusively used as a private residential premises" it is difficult for us to hold that the guest house maintained by a company or commercial undertaking would come within the aforesaid expression. The aforesaid expression connotes that the premises in question must be exclusively used as a residential premises which in other words would mean where the premises which is used by any person privately for its own residence for a sufficiently continued period and not a premises where a person can come and spend a day or a night and then go back. The guest houses are maintained by company or commercial undertaking on the other hand as a part of its commercial venture and such premises by no stretch of imagination can be held to be meant for exclusive use as private residential premises. " ( 18 ) IN Sohanlal Sachdev s case (Supra), elaborating on the word "domestic", in para 12 their Lordships held as under:-"12. " ( 18 ) IN Sohanlal Sachdev s case (Supra), elaborating on the word "domestic", in para 12 their Lordships held as under:-"12. The two terms, domestic and commercial are not defined in the Act or the Rules. Therefore, the expressions are to be given the common parlance meaning and must be understood in their natural, ordinary and popular sense. In interpreting the phrases the context in which they are used is also to be kept in mind. In Stroud s Judicial Dictionary (5th Edn.) the term commercial is defined as "traffic, trade or merchandise in buying and selling of goods". In the said dictionary the phrase domestic purpose is stated to mean use for personal residential purposes. In essence the question is, what the character of the purpose of user of the premises by the owner or landlord is and not the character of the place of user. For example, running a boarding house is a business, but persons in a boarding house may use water for domestic purposes. As noted earlier the classification made for the purpose of charging electricity duty by NDMC set out the categories domestic user as contra distinguished from commercial user or to put it differently non- domestic user . The intent and purpose of the classification, as we see it, is to make a distinction between purely private residential purpose as against commercial purpose . In the case of a guest house , the building is used for providing accommodation to guests who may be travellers, passengers, or such persons who may use the premises temporarily for the purpose of their stay on payment of the charges. The use for which the building is put by the keeper of the guest house, in the context cannot be said to be for purely residential purpose. Then the question is, can the use of the premises be said to be for commercial purpose Keeping in mind the classification is made, it is our considered view that the question must be answered in the affirmative. It is the user of the premises by the owner (not necessarily absolute owner) which is relevant for determination of the question and not the purpose for which the guest or occupant of the guest house uses electric energy. It is the user of the premises by the owner (not necessarily absolute owner) which is relevant for determination of the question and not the purpose for which the guest or occupant of the guest house uses electric energy. In the broad classification as is made in the Rules, different types of user which can reasonably be grouped together for the purpose of understanding the two phrases domestic and commercial is to be made. To a certain degree there might be overlapping, but that has to be accepted in the context of things. " ( 19 ) THE concluding line of para 12 of the decision in Sohanlal Sachdev s case (Supra) shows that their Lordships of the Supreme Court have observed that to a certain degree there might be overlapping. ( 20 ) THAT has to be accepted in the context of things. Meaning thereby, that it would all depend upon the contextual situation which the statute was dealing with. ( 21 ) THE classic decision in the context of factual situation constituting the backdrop of a statute is the report published as Frederick Vs. Bognor Water company 1908, Ch. D. 149. A residential building was being used as a boarding house. The plaintiff claimed that it was entitled to supply of water to the house at domestic rates for the reason the masters and pupils in the school were using the water for bathing, toilet, washing and laundry purposes, associated with a domestic use. The defendant took a stand that the real question was whether the building was used for a commercial/business purposes and if the answer was in the affirmative, it was entitled to charge for supplying water for a commercial purpose. ( 22 ) THE Court held that notwithstanding the fact that use of a premises as a boarding house was a commercial venture, use of water by the inmates being for a purpose associated in a domestic house entitled the plaintiff to be charged for water supplied at domestic rates. ( 22 ) THE Court held that notwithstanding the fact that use of a premises as a boarding house was a commercial venture, use of water by the inmates being for a purpose associated in a domestic house entitled the plaintiff to be charged for water supplied at domestic rates. It was held as under:-"under ordinary circumstances domestic purposes , in my opinion, include the use of water for the ordinary purposes of domestic life by the inmates of the house, and it is found as a fact, in the present case, that the only persons who use the water are the inmates of the house- including the persons who board and lodge in the house. Although it is true that the appellant is carrying on the business of a boarding house keeper, he is not using the water for the purposes of his business in any proper or just sense, or in any other sense than that the water has been supplied for the domestic use of inmates of the house. If the facts in any particular case show either that the water is not being used for domestic purposes or that it is used by persons who are not inmates of the house-who are not living in the house in the sense of being in it as ordinary dwellers-different questions may arise. In the present case all I decide is that, where it is found that there is no use of the water except for domestic purposes, and that there is no use of it by any person who is not an inmate of the house in the ordinary sense, then the company are bound to supply according to the scale for domestic purposes. I am of opinion, therefore, that our judgment should be for the appellant. " ( 23 ) AS observed in Smt. Savitri Devi Amar s case (Supra) concept of residential use envisaged by the Master Plan for Delhi was much wider than the concept of a residential house as understood under Delhi Rent Control Act. Permitted residential use prescribed under the Master Plan for Delhi 1980, which remained in force till the year 1990 included residences, hostels and boarding houses. Permitted residential use prescribed under the Master Plan for Delhi 1980, which remained in force till the year 1990 included residences, hostels and boarding houses. ( 24 ) THE inevitable conclusion has to be that the law as declared in ashwani Kumar Khanna s case (Supra) and in Smt. Savitri Devi Amar s case (Supra) requires me to hold that there is no misuse and therefore DDA is not entitled to levy or recover any misuse charges from the petitioner. ( 25 ) RULE is made absolute. Demand towards misuse charges raised upon the petitioner in respect of property No. C-2/12, Safdarjung Development Residential scheme, New Delhi is quashed. Mandamus is issued to DDA to consider the conversion application filed by the petitioner and process the same in accordance with law. Needless to state, conversion charges applicable would be the ones in force when the petitioner applied for conversion. No costs. .