SANJAY KISHAN KAUL

( 1 ) THE petitioner being the perpetual lessee of an industrial plot is aggrieved by levy of a charge as a pre-condition to the grant of permission to let out the premises constructed on the said plot.

( 2 ) THE petitioner, a partnership firm, purchased an industrial plot measuring 600 sq. yds. bearing No. E - 49/3, Okhla Industrial Area, Phase - II, New Delhi in an open auction in the year 1972 and the perpetual lease deed was executed in favour of the petitioner on 04. 01. 1973.

( 3 ) THE petitioner constructed an industrial building for carrying on its business of manufacture of garments and was using the same since its inception. However, on account of apparently recession in the business, the petitioner wanted to let out a part of the premises. It is stated that though the petitioner was not bound to apply for permission to let out the portion of the factory premises to a third-party, had applied to the respondent for the same on 23. 02. 2001. The petitioner received a letter dated 12. 04. 2001 in response thereto asking the petitioner to apply in prescribed format and intimating that the petitioner was obliged to pay to the respondent advance rent / charges @ Rs. 1. 00 per sq. ft. per month. It is this demand with which the petitioner is aggrieved and has filed the writ petition seeking quashing of the letter dated 12. 04. 2001 requiring the petitioner to deposit the amount @ Rs. 1. 00 per sq. ft. per month.

( 4 ) LEARNED counsel for the petitioner contends that lease is a grant in terms of the Government Grants Act, 1895 ( hereinafter to be referred to as, the said Act ) and in terms of Section 3 of the said Act, it has to take effect according to its tenor. Section 3 of the said Act is as under :-

" 3. Government grants to take effect according to their tenor.- All provisions, restrictions, conditions and limitations over contained in any such grant of transfer as aforesaid shall be valid and the effect according to their tenor, any rule of law, statute or enactment of the Legislature to the contrary notwithstanding. "

( 5 ) LEARNED counsel, thus, referred to the perpetual lease deed dated 04. 01. 1973 and the terms therein, more specifically clause 4 (a), which is as under :-

" 4. (a) the Lessee shall not sell, transfer, assign or otherwise part with the possession of the whole or any part of the industrial plot except with the previous consent in writing of the Lessor which he shall be entitled to refuse in his absolute discretion. PROVIDED that such consent shall not be given for a period of ten years from the commencement of this Lease unless, in the opinion of the Lessor, exceptional circumstances exist for the grant of such consent. PROVIDED FURTHER that, in the event of the consent being given, the Lessor may impose such terms and conditions as he thinks fit and the Lessor shall be entitled to claim and recover a portion of the unearned increase in the value (i. e. the difference between the premium paid and the market value) of the industrial plot at the time of sale, transfer, assignment, or parting with the possession, the amount to be recovered being fifty per cent of the unearned increase and the decision of the Lessor in respect of the market value shall be final and binding. PROVIDED FURTHER that the Lessor shall have the pre-emptive right to purchase the property after deducting fifty per cent of the unearned increase as aforesaid. "

( 6 ) LEARNED counsel contends that the expression otherwise part with possession has to be read ejusdum generis with the other terms used in the clause, which are sale, transfer or assign . It is, thus, stated that only when possession is parted with as a consequence of the sale, transfer or assigning, previous consent would be required and this is sought to be further substantiated by the second proviso requiring 50% unearned increase to be paid in case of such sale, transfer, assigning or parting with possession.

( 7 ) LEARNED counsel contends t

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