9911796707
TMI Blog1984 (12) TMI 338X X X X Extracts X X X X X X X X Extracts X X X X ..... Rehabilitation) Rules, 1955 (for short 'the Rules'). The lease deed was executed in the name and on behalf of the President of India (copy Ex. D18) on 22nd of June 1961. The lease was for a term of 99 years commencing from 16th of July 1959. One of the stipulations contained in the lease deed was that the lessee would not, without the written consent of the Chief Commissioner of Delhi, carry on or permit to be carried on the said land and the buildings erected thereon during the period of the lease any trade or business whatsoever or use the same or permit the same to be used for any purpose other than that of a single-storeyed or double- storeyed residential flats. However the plaintiff let out a part of the ground floor of the building constructed by him on the aforesaid plot to the Union Bank of India Limited (for short UBI') for carrying on their banking business sometime in 1964. On 24th May 1968 the Land and Development Officer, Ministry of Works, Housing and Supply, Govt. of India (for short 'the L and DO') issued a show-cause notice to the plaintiff for and on behalf of the President of India (copy Ex. D3) stating therein that he had been using the prem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -cause notice dated 18th November 1970 (copy Ex. D4) termed as final show-cause notice was given by the Assistant Settlement Commissioner in the office of the L and DO to the plaintiff. He was called upon to remedy the aforesaid breach within 30 days of the issue of the letter by paying charges to the Government on submitting application for compromise. He was warned that in the event of failure on his part to remedy the breach within 30 days from the issue of the said letter action would be taken against him which may amount to exercising the right of re-entry upon the premises. The said notice too was given for and on behalf of the President of India. Some more correspondence followed between the parties and eventually final notice dated 12th December 1974 (copy Ex. D14) was served by the L and DO on the plaintiff apprising him that reply dated 6th September 1971 given by him was not found to be satisfactory and the breach of the covenant embodied in clause I (vi) of the lease deed having remained un remedied the lessor in exercise of the powers conferred on him by clause II of the indenture of lease had re-entered upon the said premises with effect from 30th September 1974 and u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the plaintiff is that he had not committed any breach of clause I (vi) of the lease deed because the said clause stipulated misuser of the whole of the land and the buildings erected thereon and not any part thereof. Further it is pleaded that the use of a portion of the building by UBI, which has since been nationalised and is a public undertaking, would per se implies the consent of the Govt. to the change of the user and no breach of the terms of the lease can be said to have been committed by him in view of letters dated 30th January 1961 and 10th July 1972 circulated by the Govt. of India to all its ministries. (3) THE suit is resisted by the defendants who contend that the premises in question were re-entered upon after approval of the Lt. Governor and this fact was communicated to the plaintiff vide tetter dated 12th December 1974 as the plaintiff had failed to remedy the breach of clause I (vi) of the lease deed. The re-entry, according to them, was effected in exercise of the power vesting in them under clause II of the lease deed. They have pointed out that despite final notice issued to the plaintiff vide L and DO letter dated 18th November 1970 and subsequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t his command that the plot in question forms part of Compensation Pool inasmuch as only the leasehold rights were granted to the plaintiff while the proprietary rights still vest in the Central Government and as such only the Managing Officer in exercise of the powers conferred on him under Section 19 of the Act read with Rule 102 of the Rules can cancel the lease on any of the ground stated in the said rule (assuming the same to be valid as being ultra vires the Act). Secondly, clauses II and III of the lease being ultra vires the Act could not confer any power of forfeiture/cancellation of the lease deed on any other authority much less the Chief Commissioner of Delhi as being repugnant to the provisions of S. 19 etc. of the Act. This argument obviously stems from the fact that the lease being for a period of 99 years the property will revert to the lessor on the expiry of the term of the lease. On a close scrutiny and examination of the various provisions of the Act and the Rules, however, this contention is absolutely untenable. Chapter III of the Act deals with the formation of Compensation Pool for the purpose of payment of compensation and rehabilitation grants to displaced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 40 is very pertinent to note in this context. It reads as under : in the case of an urban area of the town of Delhi the terms and conditions of the lease shall be as in appendix XI but the purchaser shall have the option to continue to hold the site on the terms and conditions originally agreed upon by him as in appendix XII and XIII. (8) ADMITTEDLY, the lease-deed in question was executed in accordance with the prescribed pro forma contained in appendix XI which is applicable to Government owned sites in Delhi State with revised terms. This is printed quite prominently at the top of the lease deed Ex. D18 itself. Thus, there can be no room for doubt that the lease-deed in question was executed in compliance with the statutory provisions contained in Section 20 read with Rule 40 (3) of the Rules and as such all the terms and conditions contained therein must be deemed to be statutorily binding on the parties. Indeed, the managing officer or for that matter the President could have no other option but to execute the lease-deed in the form prescribed by the Rules in view of the opening words of Section 20 (1) subject to any rules that may be made under this Act which are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it cannot be construed as enlarging the scope of Section 19 itself. It is a well settled canon of construction that the rules made under a statute must be treated exactly as if they were in the Act and are of the same effect as if contained in the Act. There is another principle equally fundamental to the rules of construction, namely, that the rules shall be consistent with the provisions of the Act. Hence, Rule 102 has to be construed in conformity with the scope and ambit of Section 19 and it must be ignored to the extent it appears to be inconsistent with provisions of Section 19. [see State of Uttar Pradesh v. Babu Ram Upadhya, AIR 1961 SC 751]. It may be pertinent to notice here that even sub-section (2) of S. 19 which requires an occupant of a property comprised in the Compensation Pool to surrender possession to the managing officer envisages two distinct categories of properties, namely, (i) any evacuee property to the possession of which the occupant has ceased to be entitled by reason of any action taken under sub-section (1), and (ii) any evacuee property or other immovable property forming part of the compensation pool which is otherwise in un authorised possession of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the building constructed by the plaintiff on the plot in question. Obviously the object of the Act is to provide for payment of compensation and rehabilitation of the displaced persons. The plot of land in question was, therefore, leased to the plaintiff at a nominal ground rent or ₹ 8. 00 per annum with a view to enable him to construct a residence for himself and the provision for re-entry was made to deter him from committing breach of the express terms and conditions of the lease. So, recourse has to be taken by the authorities mentioned in the lease itself for effecting forfeiture and reentry and the managing officer is no longer seized of the matter in view of the explicit language of the lease-deed. Further such a provision was considered essential because the Compensation Pool was not intended to be a permanent feature and it would cease to exist as soon as it is utilised and the task of payment of compensation to and rehabilitation of displaced persons is over. Consequently covenants and stipulations incorporated in the lease-deed itself have been designed with a view to take the property out of the Compensation Pool and place the same at the disposal of the Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President. Clause (3) provides that the President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business. The said Article and the Article 166 of the Constitution which corresponds to it in relation to the executive orders made by a State Government have been the subject-matter of consideration in various decisions of the Supreme Court. In Dattatraya Moreshwar Pangarkar v. State of Bombay, AIR 1952 SC 181 at page 185, Das, J. (as his Lordship then was) observed thus : strict compliance with the requirements of Article 166 gives an immunity to the order in that it cannot be challenged on the ground that it is not an order made by the Governor. If, therefore, the requirements of that article are not complied with, the resulting immunity cannot be claimed by the State. This, however, does not vitiate the order itself. ' (15) SIMILARLY, following this authority it was held in Major E. G. Barsay v. State of Bombay, AIR 1961 SC 1762, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evelopment Officer, Deputy Land Development Officer and Assistant Settlement Commissioner. (17) ON a combined reading of these two orders, it is crystal clear that the Land and Development Office was competent to deal with all contracts, deeds and other instruments relating to or for the purpose of enforcement of the terms and conditions of the sale, lease-deeds of the Government property in Delhi/ New Delhi which will, inter alia, include the plot in dispute. On a parity of reasoning the aforesaid officers were also competent to authenticate the same when expressed to have been made for and on behalf of the President of India. Besides that, the defendants have placed on the record copies of decisions taken by the Government of India with regard to the transfer of work connected with the administration of Government built properties in Delhi from the office of the Regional Settlement Commissioner, New Delhi to the office of the L and DO. Ex. D1 is copy of office order dated 12th October 1962 issued by the Ministry of Works, Housing and Supply, Government of India (Department of Rehabilitation), inter alia, stating that it had been decided to transfer Government built propertie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to clauses I (vii) and I (viii) of the lease-deed which specifically incorporate the words said land or building erected thereon or any part thereof and premises or any part thereof respectively and has contended that if it were the intention of the lessor to apply the prohibition contained in clause I (vi) even to a part of the buildings/ plot there was nothing to prevent him from using phraseology similar to that used advisedly and deliberately in the two subsequent clauses I (vii) and I (viii) specifically mentioning the said land and building or any part thereof. Reliance is also placed in this context on reported decisions, both of English Courts and Indian Courts, viz. Grove v. Portal, (1902) 1 Ch 727, Cook v. Shoesmith, (1951) 1 KB 752 and A. Venkataramana Bhatta v. Krishna Bhatta, (1924) 81 Ind Cas 1006 : (AIR 1925 Mad 57). The view taken in all these cases is that the covenant by the lessee not to underlet, assign or transfer the demised premises without the consent in writing of the lessor is not broken by under letting or transferring a part of the premises only. The reason given for this view is that the covenant did not expressly apply to any part of the premises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usiness positively. He proceeded to say further that: here we are not to interpret a statute. We have to interpret the terms of a document. . . . . . . . . . . . . These documents clearly attest the fact that the lessee or the purchaser cannot carry on trade or business in the premises or any part thereof. The whole will include the part. On the interpretation of the lease and the conveyance deeds in this case I have no manner of doubt that the absence of the words 'in any part thereof in clause (vi) does not give a licence to the lessee to use a part of the land or for that matter a part of the house for purpose of trade or business. (20) I am in respectful agreement with these observations and I am of the firm view that clause I (vi) is not susceptible to any other interpretation notwithstanding the fact that the words in any part thereof do not appear therein. Though the law abhors forfeiture, a covenant or condition entailing forfeiture on breach thereof according to the lease (even according to English cases) has to be construed fairly having regard to the intention of the parties. Said Lord Ellenborough, C. J. in Goodtitle v. Saville, (1812) 104 ER 1022 : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and other agencies had taken residential buildings foruse as offices and commercial houses. So, he prayed that the technical breach on his part in not obtaining his prior sanction to permit the use of the premises for a purpose other than residence be condoned and user of the premises in question be regularised by grant of necessary sanction. However, he was informed by the Secretary, Land and Building Department, Delhi Administration, vide letter dated 27th June 1968 (Ex. D7) that his representation had been forwarded in original to the L and DO and that further correspondence in the matter be addressed to him i. e. the L and DO. Thereupon, he wrote letter dated 1st July 1968 (Ex. D9) to the Secretary, Land and Building Department, Delhi Administration, pointing out that he had written to the Lt. Governor earlier because under the terms of the lease the breach could be regularised only by the Chief Commissioner of Delhi who had since been replaced by the Lt. Governor of Delhi, So, he sought clarification on the point and forwarded copy thereof to the L and DO also. Still later, in his letter dated 26th November 1970 (Ex. D11) addressed to the Assistant Settlement Commissioner in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this connection. Clause I (vi) of the lease-deed opens with the words not without the written consent of the Chief Commissioner, Delhi which leave no room for doubt that the permission for change of user could be accorded only by the Chief Commissioner, Delhi, or for that matter the Lt. Governor of Delhi, who succeeded him as Administrator of the Union Territory of Delhi and none else. It is true that the said clause envisages prior consent of the Chief Commissioner for change of user for trade or business etc. but there is no impediment in the way of the Chief Commissioner granting ex post facto sanction, it is significant to note that even with regard to breach of any covenant or condition of the lease the decision of the Chief Commissioner has been made final by virtue of clause II of the lease-deed. Still more, the lessor is debarred from effecting forfeiture or re-entry without the permission of the Chief Commissioner, Delhi and in case the breach is capable of remedy it is incumbent upon the lessor to require by notice in writing the lessee to remedy the breach. It is thus manifest that the Chief Commissioner, Delhi or for that matter the Lt. Governor who was his successo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 45. In Ghaio Mal and Sons v. State of Delhi, AIR 1959 SC 65, both the appellant and M/s. Gainda Mall Hem Raj, respondent No. 2 therein, had applied for grant of L-2 licence for wholesale and retail vend of foreign liquor to the public in the area of New Delhi. The said licence was granted to respondent No. 2 and this fact was conveyed by the Under-Secretary (Finance) to Govt. of Delhi State to Commissioner of Excise, Delhi State, vide letter dated 14th December 1954. The letter, inter alia, read that : i am directed to say that the Chief Commissioner is pleased to approve under R. 5. 1 of Delhi Excise Manual. . . . . . . (27) UNDER Rule 1 of Chapter 5 of the Delhi Liquor Licence Rules, 1935, the Chief Commissioner of Delhi was the only competent authority empowered to grant L-2 licence for wholesale and retail vend of foreign liquor to the public. However, it transpired that on the basis of an office note L-2 licence was granted to M/s. Gainda Mall Hem Raj by the Chief Minister on September 14, 1954 and the application of the appellant for grant of L-2 licence was rejected. There was nothing on the record to show that concurrence with the order of the Chief Minister was ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the lessee to show-cause notices dated 18th November 1970 and 12th February 1971 respectively too were found unsatisfactory. It was again not made clear by whom the said replies were considered to be unsatisfactory. Further it was mentioned in the said note that since the lessee did not appear to be in a mood to compromise or remedy the breach they may re-enter upon the premises and the Deputy Land and Development Officer thereupon advised that the case be processed for re-entry to safeguard the Government interest. Thus, on a perusal of the whole of this office note it becomes abundantly clear that all the relevant facts were not culled out truthfully and faithfully by the Land and Development Office. Indeed, I am constrained to say that the Lt. Governor never had the occasion to look at the representation, much less consider it, of the plaintiff for according ex post facto sanction to the change of user. In forfeiture cases there is invariably a threat to take away some existing right for some reason and, therefore, the right to an unbiased tribunal, the right to notice of the charges and the right to be heard in answer to the charges which are the three essential features o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt to a couple of circular letters issued by the Ministry of Works, Housing and Supply, Government of India, regarding conversion of user of Govt. properties/properties constructed on the Nazul land taken on lease from Govt; Ex. D22 is letter dated 30th January 1961 which deals with the subject of breaches in the lease terms such as change of purpose in premises taken over by the Government under requisition or on lease. Its para 2 reads as under : when the Govt. themselves take property on lease from their lessee (Owner of the premises built up on nazul land) for purpose not authorised under the lessee's lease, they are clearly to be understood to have given their consent to the change of purpose of the user or alteration, if any, in the premises. No breach is thus committed by the lessee in such cases also. (31) AGAIN a similar letter was issued by the Government of India on 10/19th July 1972. Alluding to the aforesaid letter dated 30th January 1961, it was pointed out that the use of residential premises by Govt. departments as office amounted to loss to public exchequer of revenue which the lessee would have otherwise paid to the Land and Development Office on acco ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
