TMI Blog2008 (4) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... the Companies Act, 1956 is a subsequent purchaser who bought the property in July 1995. The question relating to transfer of the ''property'' without permission of DDA and contrary to the terms of the sub-lease is today of academic interest in view of the conversion scheme launched by DDA in 2003, under which leasehold right in a property can be converted into freehold right on payment of conversion charges and penalty. Averments to this effect have been made in paragraph 8 of the Writ Petition to which there is no specific denial in the counter affidavit filed by the DDA. Learned counsel for the petitioner in this regard had also drawn my attention to decision of this Court in J.K. Bhartiya (Mr.) and others versus Union of India and another reported in 2006 (I) AD (Delhi) 408, wherein it has been held that conversion is permitted even in the case of re-entered properties on the ground that there was transfer of property without prior permission and contrary to the sub-lease. 3. The substantive issue involved and raised in the present case relates to the question whether there is violation of Clause II Sub-Clause 14 of the Sub-lease deed. The said Sub-Clause r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice report was produced in the Court. Section 43 of the Delhi Development Act, 1957 (hereinafter referred to as the Act, for short) provides for service of notice in the following manner :- 43. Service of notices, etc.-(1) All notices, orders and other documents required by this Act or any rule or regulation made thereunder to be served upon any person shall, save as otherwise provided in this Act or such rule or regulation, be deemed to be duly served- (a) where the person to be served is a company if the document is addressed to the secretary of the company at its registered office or at its principal office or place of business and is either- (i) sent by registered post, or (ii) delivered at the registered office or at the principal office or place of business of the company; (b) where the person to be served is a partnership, if the document is addressed to the partnership at its principal of business, identifying it by the name or style under which its business is carried on, and is either- (i) sent by registered post, or (ii) delivered at the said place of business; (c) where the person to be served is a public body or a corporation or society or o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed and matter remanded for fresh consideration. 8. Sub-Clause 14 of Clause II of the Sub-lease deed quoted above, permits the 'property' to be used for carrying on manufacturing process or running of an industry as permitted under the Master Plan except industries emitting excessive smoke, causing nuisance, or involved in cold storage, refrigeration, food processing and preservation. It also stipulates that the property can be used for other manufacturing process or industry as may be approved from time to time by the Chief Commissioner but which do not cause nuisance, annoyance or disturbance to persons in the neighbourhood can also be permitted. The Sub-lease also states that permission to carry on non-permitted manufacturing process or industry can be granted on the condition of payment of additional premium and rent at the discretion of the superior lessor. 9. It is the contention of the petitioner that the 'property' in question was/is pre-dominantly used for the purpose of production of computer software, programming and for providing Information Technology enabled services and only part of the premises was being used for storage/godown and for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the lessor. The respondent has filed a chart on the basis of the counter affidavits filed to show that show-cause notices were issued from time-to-time, but in most cases, there was no reply or the reply was not satisfactory. 7. In my considered view, the petitioners are also to be blamed for the position which has emerged in view of the fact that in a number of cases, there was no reply sent at all. However, the petitioners have disputed the receipt of the show-cause notices itself. This aspect has to be considered along with the obligation on the part of the respondent to inspect the premises to find out predominant user of the premises. The petitioners have justified the user as a recognised activity along with the corresponding Development Code. 8. In my considered view, it is, thus, necessary that the respondent must examine each of the cases after due inspection of the properties to reconsider the matter within the parameters of the Development Code before it comes to the conclusion whether the particular user in question is or is not in violation of the Master Plan and consequently in violation of the sub-lease deed. In view thereof, the impugned orders of deter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the purview of the said Rules and even sub-lease charges are not required to be paid. The said Circular is not directly on the point but indicates that software development and Information Technology enabled services are permitted and categorised as an industrial activity. Master Plan of Delhi 2001 did not specifically categorise 'computer software, I.T. enabled services' under any heading. The said Master Plan was silent. It is apparent that the Master Plan was enforced in the year 1990 and at that time software industry and Information Technology enabled industry was more or less treated as part and parcel of electric/electronic industry. Classification of industry was done in Annexure III and manufacture of electronic goods was categorised in Group G-1 at serial No. 30. Similarly, under Group A at serial Nos. 2 and 3 the Master Plan listed Assembly and Repair of electronic and electrical gadgets and goods respectively. 15. Manufacturing process or industry are plain words which are not ambiguous or obscure and have to be interpreted in a manner they are normally and reasonably understood by a common man. Object and purpose behind Sub-Clause 14 has to be kept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ease deed draws a distinction between a property used for running of industry or carrying on manufacturing process and a property being used for carrying on trade or business . Development of software is not equivalent to carrying on trade or business. Trading involves sale and purchase of commodities and excludes development or manufacturing process which results in creation of a new product. The term business is very wide, and almost synonymous with the term trade , but as used in Sub-Clause14 it has to be given a restrictive meaning. It has been used as contra to the expressions carrying on manufacturing process or running of an industry . 17. I may mention here that as per the Master Plan of Delhi, 2021 computer hardware and software industry and industries doing system integration with computer hardware and software have been regarded as an industrial activity. Reference can be made to the relevant portion of Clause 7.7 which reads as under:- 7.7 NEW INDUSTRIAL AREAS Development of new industrial areas in Greenfield areas of NCT of Delhi should be largely planned for the purpose of relocation of existing industries and for the development of a limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tries are also mentioned. 19. The lease deed in question is a statutory document prescribed under the Nazul Rules. Nevertheless while interpreting its clauses, one has to keep in mind that the lease is for a term of 99 years and therefore the clauses have to be interpreted considering changes and development that take place over a period of time and construction of the words used in the Sub-lease deed has to be alive and one which takes into account relevant changes that take place with new technology and need and requirement of the society. The lease deed has to be read in a dynamic manner and the expressions used have to be understood by updating construction and meaning to be assigned to the expressions used lest they become totally outdated and ill-tuned with the ground reality. The words have to be interpreted in accordance with the current understanding and not in a theoretical manner. If reality requires adjustment and liberal interpretation of expressions used in the Sub-lease deed, they should be interpreted liberally. [On the question of updating construction of words used in the statute, see observations of the Supreme Court in Commissioner of Income Tax versus Podar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gislature had sufficiently expressed that intention giving the statute retrospectivity. Four factors are suggested as relevant: (i) general scope and purview of the statute; (ii) the remedy sought to be applied; (iii) the former state of the law; and (iv) what it was the legislature contemplated. (p. 388) The rule against retrospectivity does not extend to protect from the effect of a repeal, a privilege which did not amount to accrued right. (p. 392) 16. Where a statute is passed for the purpose of supplying an obvious omission in a former statute or to explain a former statute, the subsequent statute has relation back to the time when the prior Act was passed. The rule against retrospectivity is inapplicable to such legislations as are explanatory and declaratory in nature. A classic illustration is the case of Attorney General v. Pougett (Price at p. 392). By a Customs Act of 1873 (53 Geo. 3, c. 33) a duty was imposed upon hides of 9s 4d, but the Act omitted to state that it was to be 9s 4d per cwt., and to remedy this omission another Customs Act (53 Geo. 3, c. 105) was passed later in the same year. Between the passing of these two Acts some hides were exported, and it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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