JUDGMENT
Pradeep Nandrajog, J.
1. Limited issue arises for consideration in view of the counter affidavit filed.
2. Rule. Heard for disposal.
3. Issue of sub-letting has since been decided in favor of petitioner and therefore I am only called upon to examine the limited issue on which DDA has joined the battle with the petitioner, being whether on account of using the premises in question for running a warehousing unit, petitioner has rendered itself liable for forfeiture of the license or levy of misuse charges.
4. Vide a perpetual lease dated 27.3.1979, leasehold rights in perpetuity were vested in the petitioner qua plot bearing municipal No. E-27, Block B-1, Extension Mohan Cooperative Industrial Estate.
5. Inter alia, lease mandated as under:-
The sub lessee shall not without the written consent of the Lesser use or permit to be used the industrial plot or any building thereon for residence or for carrying on any trade or business whatsoever or use the same or permit the same to be used for any purpose other than that of carrying on the maufacturing process or running the industry of or such other manufacturing process or running the industry of item as per master plan for Delhi except the industries emitting excessive smoke or such manufacturing process or industry as may be approved from time to time by the Chief Commissioner or do or suffer to be done therein any act or thing whatsoever which in the opinion of the Lesser may be a nuisance, annoyance or disturbance to he Lesser, lessee and other sub-lessees and persons in the neighborhood.
6. As pleaded by the petitioner, she entered into a partnership with her son and daughter (blood relations). The partnership firm conducted business under the name and style of M/s. ASM Warehousing Corporation. The partnership firm entered into a business arrangement with M/s. Bata India Limited in the year 1989. As per the said agreement, the firm was to carry out the job of packaging and re-packaging of shoes, sorting out of shoes, loading and unloading services and storage of the same.
7. According to the petitioner, the said activity was a permissible activity in an industrial use zone falling in category M-1 i.e. Light and Service Industry.
8. As per DDA, warehousing and storage activities, if incidental to the product produced at a unit, would be permissible in an industrial use zone but if warehousing is the sole activity it is only permissible in commercial area.
9. Issue has to be decided in the context of the Development Code which is an integral part of the Master Plan for Delhi in vogue as of today being the Master Plan promulgated in the month of August, 1990 as amended from time to time.
10. A perusal of the Development Code shows that the purpose of the code is, apart form promoting quality of life of people of Delhi, organising the development of land in accordance with the developmental policies.
11. As held out by the Development Code in its introductory passage, the code is a systematic code to decide the use activity at two levels. At level one, the Development Code deals with conversion of use zone into use premises i.e. lay out and at level two it deals with the permissible use activities on use premises.
12. It is obvious that the concept of use activity and use premises is distinct. However, as would be noted herein after, a further perusal of the Master Plan shows that in certain circumstances a use activity could be permissible from different use premises and vice versa.
13. Under Clause 4 of the Development Code, while designating use zones, 9 categories consisting of 37 use classes have been stipulated. The 9 categories are (i) residential, (ii) commercial, (iii) manufacturing, (iv) recreational, (v) transportation, (vi) utility, (vii) Government, (viii) public and semi- public and lastly (ix) agricultural and water body.
14. Clause 8 of the Development Code deals with sub division of use zones into use premises. Clause 8 contains the core of the matter in issue, for the reason as stated in Clause 8 (1) the object of this clause is not only to guide the preparation of lay out plans for use zones but additionally it regulates the norms for regulating use activities in use premises.
15. Meaning thereby, that the development code envisages sub division of use zone and use premises, in that, it deals with a specific user on a particular plot in a different category of use zones. Needless to state as noted above, which are 9 in number with further sub division into 37 categories. Clause 2(1) and 2(2) of the Development Code define usezone and use premises as under :-
2(1) Use zone means an area for any one of the specific dominant use of the urban functions as provided for in clause 4.0.
2(2) Use premises means one of the many sub-divisions of a use zone, designated at the time of preparation of the layout plan, for a specific main use or activity and includes the use premises described in Schedule 1.
16. Clause 8 (ii) of the Development Code stipulates use premises permissible in use zones. In respect of 5 use zones namely, (i) residential, (ii) retail shopping and commercial, (iii) wholesale trade including warehousing and cold storage, (iv) light and service industry and (v) extensive industry. It lists the same under the caption RD, C1, C2, M1 and M2 respectively.
17. The Schedule to the Development Code lists 136 use premises and that defines 136 activities permissible under the head use premises.
18. Clause 8 (ii) of the development code, to which reference has been made by me herein above, indicate the permissible use premises in designated use zones and in regard to the use premises, at serial no. 020 of the Schedule to the Development Code, it stipulates that the activities permissible in the use premises as defined vide said entry are permissible users in use zones M-1 and M-2 i.e. light commercial service industry as also extensive industry.
19. Vide serial no. 020 of the Schedules to the Development Code, permissible use activity in the use premises is ?Storage, Godown and Warehousing?.
20. The position of law has been stated in the decision reported as M/s. Rajandhir India Pvt. Ltd. v. DDA. In para 4 following has been noted:-
The first aspect to be considered is the issue of misuse alleged by the respondent DDA in respect of different properties. DDA has taken a view that the activities being carried out by different persons are contrary to the Master Plan and are actually in the nature of trading of business activity rather than manufacturing processes. In this behalf, clause (14) of the sub-lease deed, which is quoted above, has to be interpreted. The first part of the clause puts a clear restriction, without written consent of the Lesser, for putting the plot or the building constructed thereon for any use as a residence or carrying on any trade or business. This is followed up by the prescription that the plot and the building has to be used only for purposes of carrying on manufacturing process or running the industry as per the Master Plan of Delhi or such other manufacturing process or industry, as may be approved from time-to-time. In my considered view, a plain reading of the clause itself leaves no manner of doubt that the plot and the structure thereon can be used only for purposes of manufacturing process or running the industry as per the Master Plan. The contention advanced on behalf of the petitioners was that the industrial plots were, in fact, being put to conforming use in accordance with the Master Plan and a reference was made to Development Code of the Master Plan. Sub-clause 8 (2) prescribes the permission of selected use premises in the use zones. The each use has been given a serial number (for short, ‘S.No.’) and it is prescribed in which use zones the same is permissible. S.No.036 is in respect of Industrial Plot – Light and Service industry; S.No.037 is in respect of Industrial Plot – Extensive Industry; S.No.027 is in respect of Motor Garage and Workshop; S.No.020 is in respect of Storage, Godown and Warehousing; and S.No. 035 deals with Service Industry. These S.Nos. Have been further described in greater detail under Sub-clause 8 (3) giving the use/use activities permitted in use premises and the same are reproduced hereunder for ready reference.
(3) USES/USE ACTIVITIES PERMITTED IN USE PREMISES
… … … …
StorAGE, GODOWN and WAREHOUSING (020)
Storage, Godown and Warehousing, Watch and Ward Residence (up to 20sq.m.), Wholesale Outlet, Administrative and Sales Office … … … …
MOtor GARAGE AND WORKSHOP (027)
Motor Garage and Workshop, Retail Shop (Spare Parts), Soft Drink and Snack Stall. … … … …
SERVICE CENTRE (035)
Retail, Repair and Personal Service Shop, Industry allowed in Service Centre as given separately, Gas Godown, Commercial Office.
LIGHT INDUSTRY PLOY (0360
Light industrial unit as per list given in Annexure – III, Administrative Office, Sales Outlet, Residential Flat to the extent of 5% of the floor space or 50 sq.m. Whichever is less for Watch and Ward and Supervision.
EXTENSIVE INDUSTRY PLOT (037)
Extensive Industry as per the list in Annexure-III, Administrative Office, Sales Outlet, Residential Flat (for maintenance for Watch 7 Ward and Supervision staff) on 5 per cent of floor space of 50 sq.m. Whichever is less.?
21. It is thus apparent that the activity undertaken by the petitioner is a permissible activity under the Master Plan. The concept of limited user introduced by DDA in the counter affidavit no way find mention in the relevant entries in the Master Plan.
22. Learned counsel for the respondent states that in view of the observations of the learned single Judge in Rajandhir’s judgment as are to be found in para 5 of the decision, the activities to which reference has been made in para 4 of the decision were held by the learned single Judge to be incidental to main activities i.e. actual manufacturing process, for the reason in para 5, the learned judge noted that apart from manufacturing and industrial activities, a part of the premises could be used for the commercial purpose.
23. The submission is based on a misreading of the decision in Rajandhir’s case for the reason in para 5 the clarification, refers to a part of the premises to be used for residential purposes, administrative office and sales office is in reference to entries at S.No.035, 036 and 037 of the Schedule to the Development Code. These three users are contemplated by the Master Plan as incidental to the main activities evidenced by entry at serial no. 035, 036 and 037 of the Schedule to the Development Code, reference whereof has been made by the learned judge in para 4 of the decision.
24. Though law has to be interpreted in the context of the statutory provisions of a particulate statute and the language used by the legislature and it is impermissible to look to the language of other statutes, but for harmony to the concept of manufacturing and industrial activity, I may note that even under the Excise Laws, manufacturing process includes, in relation to activities specified in the IIIrd Schedule to the Excise Act, packaging, repackaging as also labelling or relabelling of goods. Vide serial No.55 of the IIIrd Schedule to the Excise Act, following entry is to be noted : ?Footwear?.
25. For the reasons herein above the Rule is made absolute. Order dated 20.2.2003 passed by the Lieutenant Governor conveyed to the petitioner vide DDA’s letter dated 11.3.2003 (Annexure P-41) is quashed. A writ of prohibition is issued against the DDA prohibiting the DDA from re-entry the unit property. Mandamus is issued to DDA to process petitioners applications seeking conversion of the leasehold tenure to freehold tenure as per conversion policy. Needless to state, on the petitioner paying the requisite demand if already not paid and on the petitioner completing the requisite formalities, freehold rights would be conferred to the petitioner in respect of writ land within a period of 12 weeks from today.
26. Needles to state DDA is not entitled to levy any misuse charge nor restoration charges.
27. No costs.