Renuka Kulkarni v. Delhi Development Authority

1. Mr. Jayant Bushan, the learned Senior Advocate for the petitioner in WP(C) No. 13505/2019 submits that the petitioner has a lis and claim against the Purbhanchal Social Welfare Society („Purbanchal‟)– petitioner in WP(C) Nos. 3699/2021 & 3747/2021. The DDA had leased to Purbanchal a prime 2000 sq. mtrs. land adjacent to Apollo Hospital in South East Delhi. The land was to be used for constructing and running a Dharamshala which would for the larger benefit especially to the attendants of patients who may be under treatment at the said hospital. He further submits that the terms of lease have been misused by the Purbanchal and monies are being generated by running a hotel instead of a Dharamshala. In support of his submissions, he refers to photographs filed by the petitioner of Ameya Suites being run from the allotted land. He submits that the suites are not even remotely akin to what would be based as a Dharamshala and they are not in terms of the permission granted under the lease. He submits that the Ameya Suites are entirely a luxury hotel as is evident from the hotels website itself. The photographs of the same are reproduced hereunder:

2. While relying upon the said photographs, having self-evident proof of misuse of the land and breach of the terms of the lease, the petitioner supports the DDA‟s cancelling/ determination of the lease. He submits that DDA‟s action is appropriate, legal and just. The petitioner-Renuka Kulkarni further contends that the property has been advertised as “a place of luxury stay in the heart of Delhi”. The allottee has not been able to bring on record anything to show that a Dharamshala was running from the said premises, which was the sole and primary objective of the land allotted to the said Society.

3. Ms. Prabhsahay Kaur, the learned Standing Counsel for DDA submits that: (i) as a matter of prudence, practice and precedent, DDA always reserves its right to re-enter a property in case of its misuse and (ii) in the present case, not only was the building constructed against the permissible norms but its use also is in clear contravention of the terms of allotment. She refers to clause (iv) of the letter of allotment which reads as under: “iv)The allotted land shall be used for the purpose of constn. of Dharamshala and no other purpose whatsoever.”

4. Prior to the cancellation of the lease, DDA had issued three show cause notices to the allottee Society on 04.02.2019, 05.03.2019 and 29.04.2019 (impugned in WP(C) No. 3747/2021), which reads as under:

5. She further submits that the allotment of land at FC-33, Jasola, New Delhi (near Apollo Hospital) was on perpetual lease basis vide demand-cum-allotment letter dated 29.07.1998 and it was for the purpose of making available a Dharamshala and the specific consideration that the activities of Purbanchal would be non-profitable and purely for charitable purposes. Purbanchal undertook construction and obtained completion certificate from the MCD on 31.12.2014. On 19.01.2017, it was granted sub-letting permission by DDA in favour of M/s Ameya Infrastructure and Hospitality Pvt. Ltd. („Ameya Infrastructure‟) but the running of a hotel was specifically excluded in terms of para 4 sub-para (1) of the application submitted by Purbanchal. It is only in this context that the sub-letting permission was granted for an area admeasuring 710.34 sq. meters (144.20 sq mtrs at ground floor and 596 sq mtrs at first floor). The sub-letting policy of DDA clearly mentions that the premises will not be run as a hotel. Furthermore, a clarification was issued on 19.07.2016 by the Asstt. Director that sub-letting permission was granted only for similar activities. In the present case, the similar activity would mean running a Dharamshala and not a hotel. In any case, the sub-letting was limited only to 710 sq. mtrs. out of a total of 2000 sq. mtrs. A joint inspection was carried out on 18.08.2017 by the Asstt. Director and Asstt. Vigilance Officer of DDA wherein blatant violation of the lease and sub-letting permission and the misuse by Ameya Infrastructure was confirmed.

6. Ms. Kaur further submits that Show Cause Notices, including the above three, were issued to Purbanchal, and after considering their replies thereto the order of termination of the lease was passed on 15.09.2020. She submits that on 22.09.2020 the DDA Officer visited the site to take peaceful physical possession of the property but Purbanchal refused to co-operate. It continued its unauthorized activities of letting out the premises and continued to accept bookings for the hotel. The same was apparent from visiting the hotel booking website[1]. Resultantly, the DDA was constrained to issue notices to the civic authorities for discontinuation of services and withdrawal of NOC regarding the said property.

7. Furthermore, DDA forwarded the case to the Estate Officer on 01.10.2020, with a reminder on 12.01.2021, for initiation of proceedings against Purbanchal under the Public Premises Act for eviction from the property as well as recovery of damages for its illegal and wrongful use. DDA submits that, with the assistance of the police, five gates of the premises were sealed on 12.03.2021 and 13.03.2021 and a letter was issued on 05.04.2021 for ensuring that the property remained sealed and non-functional. DDA sent reminders to the civic authorities for discontinuation of civic services on 07.04.2021. DDA submits that the activity carried on by the Purbanchal and its tenant- Ameya Infrastructure were clearly in breach of the terms of the lease, therefore, the action taken by the DDA was legal.

8. The three Show Cause Notices were replied to by Purbanchal on 20.03.2019, 21.05.2019 and 03.07.2019. They read as under: 1 www.booking.com First Reply “….. 20.03.2019 The Assistant Director (IL), DDA, New Delhi Sub.: Show Cause Notice No. F.4(3)97/IL/DDA/122 dated 04.02.2019 received on 05.03.2019 and F.4(3)97/IL/DDA/222 dated 05.03.2019 received on 09.03.2019 Dear Sir, This has reference to above said Show cause Notice dated 05.03.2019 issued by your office. In this regard it is respectfully submitted that all activities in our facilities at Plot No 6, FC-33, Jasola are as per terms and conditions of allotment and there is no misuse of the property as has been alleged by FOSECA/SWBA in their baseless, false and frivolous complaint made to your office. To begin with, we wish to bring to your attention that the complainants including so called FOSECA/SWBA etc are front and inhouse associations of one Mr Ashish Bhalla who is having some personal disputes with some of our members including Sunil Gandhi. They are fraudsters making false and frivolous complaints with the clear intention to blackmail and do extortion from us. They are working as accomplice of Ashish Bhalla and are sponsored/ financed by him and are making these false complaints in active connivance with the said Mr. Ashish Bhalla and he has cheated general public besides some of our members in some commercial transactions. Our Member has also filed criminal and other complaints against Ashish Bhalla and his other co-conspirators in Delhi EOW, Gurgaon and has also registered an FIR against him in Noida and Vasant Kunj in regard to his various criminal misappropriations, cheating and frauds. Further as stated by yourself, Purbanchal had taken subletting permission from DDA in favour of M/s Ameya Infrastructure and hospitality private limited vide your letter dated 25.01.2016 for first floor and part of Ground Floor. It was further clarified by your office vide letter dated 19.07.2016 that permission was "for the purpose of running lodging & boarding facilities, eateries etc. under similar activities". Further, similarly second and third floor are being used by Purbanchal for the purpose of providing temporary accommodation (lodging and boarding facilities) and some part of Ground floor is still lying vacant. In these circumstances, your observation and any allegation that second floor, third floor is being misused by the society and is violation of subletting permission dated 25.01.2016 and 19.07.2016 is totally unfounded, baseless and incorrect. In this regard, your attention is also invited to Master Plan MPD2021 where Dharamshala has been defined as premise providing temporary accommodation on short term basis on No profit basis (Copy enclosed). We also wish to confirm that we are following the same principle of no profit basis and not for profit organization as applicable to all the societies/trusts in this regard. No part of any receipt or collection is ever distributed to any of the members and is only being utilized for the purpose of objects of the society. Further, in your joint inspection done on 18.08.2017 by assistant director (S) and Vigilance officer-VI, it was clearly found and checked that all activities were being done in accordance with terms and conditions/rules and regulations of DDA and all concerned authorities. We had also provided documentary evidence during the inspection showing that all collection/receipt for second and third floor were being done by Purbanchal only. This clearly shows that all activities/collections for second and third floor are being done by Purbanchal as per rules and regulation and terms and conditions of allotment. As regards, reply to your letter dated 10.08.2017, we had duly filed our reply vide our letter 01.10.2017, the copy of which is enclosed herewith. We also wish to bring to your attention that your earlier letter dated 10.08.2017 had also mentioned about the complaint of Mr. Abrar Siddiqui, R/o H Pocket, Sarita Vihar, new Delhi, who is also part of same fraudsters. Mr. Abrar Siddiqui (also acting on behalf of Jan Kalyan Lakshya Foundation) subsequently had apologized, regretted and had withdrawn his complaint vide his letter dated 11.08.2017, copy of which is enclosed herewith. As regards, any outstanding ground rent payable, you are requested to let us know the amount and we will make the payment in three installments as we will need to organize the money for same. From the above, we respectfully submit that there is no violation of subletting permission or any other terms or conditions of allotment and we are running all the activities as per rules and regulation and terms and conditions of allotment in legal manner. You are requested to withdraw your show cause notice and oblige.” Second Reply “……21.05.2019 The Deputy Director (IL) Delhi Development Authority, New Delhi. Sub.: Show Cause Notice No. F.4(3)97/IL/428 dated 29.04.2019 in respect of Plot No 6, FC 33, Jasola, New Delhi-110025 Dear Sir, This has reference to your above Show Cause Notice in continuation to your Show Cause Notice dated 05.03.2019, reply to which was duly submitted vide our letter dated 20.03.2019 (Copy enclosed). In this regard we also wish to submit that your Show Cause Notice No. F.4(3)97/IL/428 dated 29.04.2019 was never received by us because the same appears to have been sent by your office to an incomplete address. We had received the copy of this notice during the course of our visit to your office last week. Please note that our address is as under:- Purlbanchal Social Welfare Society, Plot: No. 6, FC-33, Jasola, New Delhi -110025. Your office has observed that administrative decision was taken by the Hon'ble LG vide minutes dated 09.12.1998 to impose further conditions with respect to curb the misuse of Dharamshala Plot. In this regard it is submitted that we do not have the copy of any such administrative decision of the minutes as referred by you. In any case, without prejudice to above, no such condition can be imposed on us as the same is neither part of any term and condition as contained in allotment letter which was issued on 20.07.1998 and lease deed which was executed on 03.04.2008. In any case, the building bylaws or master plan have never been changed to incorporate the said alleged administrative decision taken by Hon'ble LG as stated by your office. You are aware that we were allotted the above said land to establish boarding & lodging facilities for the patients, their relatives, and acquaintances visiting Apollo Hospital and others who cannot afford the high Room Tariff of the said hospital, land for which was allotted to them by DDA/Delhi Govt. These patients and their relatives, besides others, use the facilities at our premises during the period of their treatment and thereafter for recuperation. The people who are using Apollo Hospital are getting best of facilities there at Apollo and also expect and look forward to get most hygienic and clean atmosphere/standards of service. These visitors, generally, come from outside as local patients and their relatives do not require lodging facilities in Delhi. The visitors will not accept unhygienic, unclean condition and circumstance which will result in non-utilization and accommodation and the object sought to be achieved by the institution is bound to fail. The conditions like common toilet facilities for ladies and gents, no catering facility, Dormitory etc for visitors coming to hospital like Apollo, are not practical and shall not be accepted by any prospective users. In any case, they not applicable to us as they are not part of our allotment letter, Lease Deed or Building Byelaws/Master plan. Your office has further observed that as per allotment letter dated 20.07.1998, the tariff structure will be decided by the institution running the Dharamshala subject to approval by the MD and one of the Delhi Government Director on the board of Indraprastha Medical Corporation Limited. In this regard we wish to submit that the tariff being charged by us for running lodging facilities is duly approved by Apollo Hospital i.e. Indraprastha Medical Corporation limited. Your office has further observed that as per Land Agreement/Sub-lease, the registered address of M/s Ameya Infrastructure and Hospitality Pvt. Ltd. is written as First Floor, FC-33, Jasola, New Delhi i.e. the same address of the plot of the society. In this regard it is clarified that the Lease Deed was executed on 21.04.2016 and registered on 26.04.2016. However the possession was handed over on 01.03.2016 which can be seen from clause 2.[1] of the lease deed which shows that the same started w.e.f 01.03.2016. Their address earlier than 01.03.2016 was at Sarita Vihar, which is clearly written in the MOU submitted before your office at the time of getting sub-lease permission from Delhi Development Authority vide your letter dated 25.01.2016 lease deed was executed with Ameya Infrastructure and Hospitality Pvt Ltd on 21.04.2016 i.e. after handing over the possession to them, it would be natural for them to give their current address in Sub Lease Deed. We also wish to bring to your kind attention that as per DDA policy, we had duly obtained subletting permission from your office vide letter rio. F.4(03)/97/IL/162 dated 25.01.2016 in favour of Ameya Infrastructure and Hospitality Pvt. Ltd for Ground Floor and First Floor for the purpose of running Boarding & Lodging facility, eateries etc. under similar activities for which the whole of the plot building can be used. This has been duly clarified, permitted vide your letter no. F.4(03)/97 /IL/1282 dated 19.07.2016. As regards Fire Safety Certificate, as mentioned by you, we wish to submit that we had duly obtained certificate from Fire Department on 21.07.2014 (copy enclosed) whish had stated that we have followed various norms and standards as required for fire safety and we do not require any NOC/Approval being Dharamshala. However, subsequently the MCD did not accept this certificate and wanted a clear Fire safety certificate meeting the norms of Guest House etc. and also mentioning the name of Ameya. The subsequent certificate was accordingly obtained by the consultant for meeting legal requirement of safety and security of the visitors using the facilities. We wish to clarify that there is no organization or M/s Ameya Guest House and accordingly there is no question of members of Ameya Guest House and Purbanchal Social Welfare Society being same or different. Your office has further observed that Ameya Infrastructure and Hospitality Pvt. Ltd. Is running the full fledged Hotel whereas subletting permission was granted for the purpose of running Boarding & Lodging, eateries etc. In this regard we wish to submit that we are not aware of any website as is being referred by your office. Furthermore, in any case it is a general practice by the users and the people to call Lodging & Boarding House, guest house, Bed & Breakfast facilities as hotel in laymen language and Purbanchal Social Welfare Society is not responsible for any term use which may be used by outsiders. We, once again, wish to draw your attention to Master Plan MPD2021 where Dharamshala has been defined as premise providing temporary accommodation on short term basis on No profit basis (Copy enclosed). Similarly Guest House/ Lodging & Boarding House has been defined therein as premise providing temporary accommodation on short term basis. We also wish to confirm that we are following the same principle of no profit basis and not for profit organization as applicable to all the societies/ trusts in this regard. No part of any receipt or collection is ever distributed to any of the members and is only being utilized for the purpose of objects of the society. We have given a separate representation dated 22.04.2019 giving details of some complainants/anti-social elements being blackmailers/extortionists and their earlier and recent attempts to blackmail our organization while threatening to get action against us through their high connections in DDA on one pretext or other. We also have clear evidence in this regard. We, accordingly, respectfully submit that there is no violation of any term and condition by us. The delay in giving the reply is on account of non receipt of letter due to wrong/incomplete address written by you and the copy of the letter was given to us by your office in last week. We are running all the activities as per rules and regulations as per terms and conditions in the legal manner. You are requested to withdraw your Show Cause Notice as aforesaid and oblige.” Third Reply “…… Date: 03.07.2019 The Dy. Director (IL), Delhi Development Authority, New Delhi. Sub.: Show Cause Notice No. F.4(3)97/IL/769 dated 26.06.2019. Dear Sir, This has reference to the above said Cause Notice No. F.4(3)97 /IL/769 dated 26.06.2019 received by us on 28.06.2019. We also refer to your earlier Show Cause Notice dated 29.04.2019 in continuation to your letter dated 05.03.2019. In this regard we have already submitted our reply vide our letter dated 28.03.2019 as well as 21.05.2019. We also refer to our visits to your office where we have given all the clarifications in addition to our reply given vide letter dated 28.03.2019 and 21.05.2019 and your office was fully satisfied in regard to all the queries. The affidavit dated 03.06.2019 was also given as had been requested/required by the senior officials. As regard your query in regard to Tariff Structure decided by the institution and its approval by Appollo Hospital, we had clarified in our letter dated 21.05.2019 that the tariff structure is duly approved by Apollo Hospital i.e. lndraprastha Medical Corporation Ltd. In this connection we are enclosing herewith copies of letters clearly showing that the tariff has been approved/ confirmed by them. From the above and our earlier submissions, it is clear that we have complied with all the terms & conditions and there is no violation of any nature. We are running all our activities as per the rules & regulations and the terms & conditions, as applicable. You are accordingly requested to drop your Show Cause Notice as aforesaid and oblige.”

9. Mr. Rajive Bhalla, the learned Senior Advocate for the Purbanchal submits that the substance of neither of the replies have been considered by the DDA nor was Purbanchal granted any hearing by the DDA before it decided to terminate/determine the lease by the impugned order dated 15.09.2020, therefore, the said order is unfair, arbitrary, non-speaking and in breach of natural justice.

10. DDA‟s lease termination letter (impugned in WP(C) 3747/2021) reads as under: “….

DELHI DEVELOPMENT AUTHORITY INSTITUTIONAL LAND BRANCH A-216, 2nd Floor, Vikas Sadan, INA, New Delhi-110023 F.4(3)97/IL/835 Dated:- 15/09/20 ORDER WHEREAS the Purbanchal Social Welfare Society was allotted land measuring 2000 Sqm at FC-33, Jasola for construction of Dharamshala on perpetuat lease basis. The physical possession for the allotted land was handed over to the society on 19.03.1999. NOC issued on 04.10.99. The lease deed was executed on 03.04.2008.

AND WHEREAS at the request of the society for subletting permission was granted vide letter No.162 dated 25.01.2016 in favour of M/s. Ameya Infrastructure & Hospitality Pvt. Ltd. with the condition that the area of subletting would be 710.34 Sqm of built-up area of the Building (at Ground Floor 114.20 Sqm & 596.14 Sqm at 1st Floor with other terms & conditions as laid down in the said letter. Purpose of subletting was to run lodging and boarding facilities, eateries etc. under similar activities and the same was intimated to you vide letter dated 19.07.2016.

AND WHEREAS a complaint from FOSECO/SWBA, 111, 1st Floor Hemkund Chamber 89 Nehru Place, New Delhi- 110019 for violation of terms & conditions of the land reserved for social cause "Dharmshala". Further, it is also alleged in the complaint that the society has also misused the property and running a hotel. In support of the complaint some documentary evidence has also been enclosed viz. Proof of reservation of room booking, reservation amount, eating charges along with a list of menu charge.

AND WHEREAS it has been observed that Second Floor, Third Floor of the premises is totally being misused by the society, therefore, it is a clear cut violation of subletting permission dated 25.01.2016 and 19.07.2016.

AND WHEREAS Show Cause Notice was issued on 04.02.2019, 05.03.2019 and 29.04.2019 to the society for violation of terms and conditions of the allotment, Lease and sub-letting permission.