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2024 Supreme(Online)(DEL) 10342
IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 06.03.2024 + LPA 689/2018 & CM APPL. 9872/2021 Darshan Kaur ..... Appellant versus Union of India & Anr. ..... Respondents Advocates who appeared in this case: For the Appellant : Mr Rajesh Yadav, Senior Advocate with Ms. Ruchira V. Arora & Mr. Dhananjay Mehlawat, Advs.
For the Respondent : Ms Monica Arora, CGSC with Mr Subhrodeep Soha, Adv. for R-UOI CORAM HON’BLE MR JUSTICE VIBHU BAKHRU HON’BLE MR JUSTICE AMIT MAHAJAN
Applicability of general and special orders in determining misuse charges and the influence of the principle of generalia specialibus non derogant on the case.
Headnote:
judgment - misuse charges - The court considered the appellant's contention that the demand of the respondents is barred by limitation as the claim was raised after more than 25 years of the alleged misuse. The court held that the respondents being Central Government, the limitation for making demand/ claim is 30 years in terms of Article 112 of the Limitation Act, 1963. The court also considered the issue of whether the premises were being used for residential and office purposes or for office purposes only. There is no dispute between the parties that the premises had to be used for residential purpose only. The court referred to inspection reports carried out by the respondents to observe that the tenanted premises were being used as an office of the Embassy of Lebanon since the inception of the tenancy, which is in violation of the PLD dated 23.07.1962. The court held that the premises were being used for office purposes only during the term of tenancy. The court also considered the issue of whether the Circular dated 31.03.1976 i.e., Office Order No. 23/ 76 would apply or the Circular dated 08.09.1983 i.e., Office Order No. 29/83 had superseded it. It was the case of the appellant that Clause (i) of the Office Order of 1983 stipulates that, if the premises are being used both for residential and office purpose by any Embassy / Mission, no notice will be taken of the misuse and no misuse charges would be levied. The court held that the tenanted premises were being used for office purpose only and therefore, Clause (i) of the Office Order No. 29/83 would have no effect and Clause (ii) of the said order which dealt with the use of the respondents’ leased premises for office purpose would apply. The court observed that the Office Order No. 23/ 1976 is a general order, which held the field till the issuance of the Office Order No. 29/83, which is a special order relating to the premises leased out to foreign missions. The court applied the principle of generalia specialibus non derogant that is, general law yields to special law should they operate in the same field and on the same subject, to observe that neither Clause (7) nor (8) of Office Order No. 23/ 76 will be applicable to the present case.
Fact of the Case:
The appellant contested the demand raised by the respondents for misuse charges dating back to 1968, claiming that the demand was barred by limitation. The appellant also argued that the premises were being used for both residential and office purposes, while the respondents contended that the premises were being used for office purposes only. The court considered the applicability of the Circular dated 31.03.1976 and the Circular dated 08.09.1983, and their influence on the case.
Finding of the Court:
The court found that the demand of the respondents was not barred by limitation and that the premises were being used for office purposes only during the tenancy. The court held that the Office Order No. 29/83 would have no effect and that Clause (ii) of the said order, which dealt with the use of the respondents’ leased premises for office purpose, would apply. The court also observed that the Office Order No. 23/ 1976 is a general order, which held the field till the issuance of the Office Order No. 29/83, which is a special order relating to the premises leased out to foreign missions. The court applied the principle of generalia specialibus non derogant to conclude that neither Clause (7) nor (8) of Office Order No. 23/ 76 would be applicable to the present case.
Issues: The issues in the case revolved around the applicability of the Circular dated 31.03.1976 and the Circular dated 08.09.1983, the nature of the premises' usage, and the influence of the general and special orders on the case.
Ratio Decidendi: The court applied the principle of generalia specialibus non derogant to conclude that neither Clause (7) nor (8) of Office Order No. 23/ 76 would be applicable to the present case.
Final Decision: The present appeal was allowed, and the impugned order was set aside. The respondents were directed to recompute the misuse charges by extending the benefit of Clauses 7 and 8 of the Office Order No. 23/1976 and refund the excess amount paid by the appellant within a period of three months from the date of the judgment.
JUDGEMENT
AMIT MAHAJAN, J INTRODUCTION
1. The present intra court appeal, under Clause 10 of the Letters Patent, is filed impugning a judgment dated 14.11.2018 (hereafter ‘impugned order’) passed by the learned Single Judge of this Court in W.P.(C) 5022 of 2016 captioned as Darshan Kaur v. Union of India and Another.
2. The appellant had filed the aforementioned writ petition, inter alia, impugning the Demand Letter dated 23.02.2015, and further communication dated 04.05.2016, whereby the respondents, while dealing with the appellant’s application for conversion of her property from leasehold to freehold, being property no. 39(10), Diplomatic Enclave, also numbered as 10, Sardar Patel Marg, New Delhi (hereafter ‘subject property’), had raised a demand of ₹2,72,28,392/- along with 10% interest per annum. The appellant contested the demand. She relied upon Clause (i) of the Office Order No.29/83 dated 08.09.1983 and sought declaration that no misuse charges were payable by the appellant. In the alternative, the appellant sought the benefit of the Office Order No.23/1976 dated 31.03.1976 and levy of a token penalty at 1% of the misuse charges.
3. During the pendency of the present appeal, the appellant executed a Gift Deed in favour of her daughter Mrs. Tripat Kaur in respect of the subject property, whereafter this Court, by order dated 05.12.2022, allowed the substitution of the appellant by her daughter Mrs. Tripat Kaur.
FACTUAL CONTEXT
4. A Perpetual Lease Deed (hereafter ‘PLD’) dated 23.07.1962 was executed in favour of the appellant in respect of the subject property.
The PLD dated 23.07.1962 provided that the subject property was not to be used for any trade or business or for any purpose other than that of a double-storey residential building for a private dwelling house for one or two families. The relevant portion of the concerned Clause is set out below:
- “III. The Lessee for himself, his heirs, executors, administrators and assigns covenants with the Lessor in manner following (that is to say)- x-x-x (7) The Lessee will not without such consent as aforesaid carry on or permit to be carried on the said premises any trade or business whatsoever or use the same or permit the same to be used for any purpose other than that of a double storey residential building for a private dwelling house for one or two families in all or do or suffer to be done thereon any act or thing whatsoever which in the opinion of the Lessor or such officer as he may authorise in this behalf may be an annoyance or disturbance to the President of India or his tenants in the New Capital of Delhi.”
5. The ground floor of the subject property was let out by the appellant to the Government of Lebanon, through its Ambassador, by the registered Lease Deed dated 29.02.1968 (hereafter ‘Lease’). Clause 2 (9) of the Lease stipulated that the subject property would not be used in any manner whereby the terms of the PLD dated 23.07.1962 would be contravened, and if on account of any contravention the appellant suffered any enhanced rents, taxes, damages, penalty or re-entry, the Government of Lebanon (lessee therein) would be liable to reimburse the same.
6. The Ambassador of Lebanon vide letter dated 20.02.1968 informed the respondents that it was renting the ground floor of the subject property and planning to use the same for its cultural purposes, wherein less than 25% of the total area would be dedicated to the consular section.
7. The respondents by letter dated 14.10.1968 informed the appellant that it was found upon inspection of the subject property that the entire ground floor was being used as an office by the Embassy of Lebanon, and that the said usage was in contravention of terms of Clause III (7) of the PLD dated 23.07.1962. The appellant was therefore asked to pay additional charges for the said breach, and to remedy the same within thirty days.
8. On 20.01.1969, the learned Deputy Chief of Protocol, Ministry of External Affairs
