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1982 Supreme(Del) 290
High Court Of Delhi
GHANSHYAM - Appellant
Versus
UNION OF INDIA - Respondent
Civil 869 of 1970
Decided On : 10/07/1982
Atul Kumar Sinha, D.P.VADHAVA, M.G.Dhingra, MADAN LOKUR
A restrictive covenant in a lease deed prohibiting the use of the premises for any purpose other than residential is valid and enforceable, and a breach of the covenant entitles the lessor to re-enter the premises.
Headnote:
LEASE - BUILDING LEASE - RESTRICTIVE COVENANT - INTERPRETATION - VALIDITY OF NOTICE TO RE-ENTER - WRIT PETITION - MAINTAINABILITY - IMMUNITY OF PRESIDENT - WRIT AGAINST GOVERNMENT - RIGHT OF RESUMPTION - SUB-DIVISION - ALIENATION.
Fact of the Case:
The petitioners, a group of displaced persons allotted houses in a government colony, challenged the validity of a notice issued by the Land and Development Officer to one of their members to show cause why his premises should not be re-entered by the President of India for breach of a restrictive covenant in the lease deed prohibiting the use of the premises for any purpose other than residential.
Finding of the Court:
The court held that the lease was a statutory lease and that the restrictive covenant was valid and enforceable. It rejected the petitioners' argument that the covenant did not prohibit the use of a part of the premises for trade or business, holding that the intention of the parties was to give a building lease for residential purposes only. The court also held that the writ petition was maintainable against the government, despite the immunity of the President, as the President acts on the advice of the cabinet and the writ could be issued to the members of the cabinet or the government requiring them to advise the President not to act contrary to law.
Issues: 1. Whether the restrictive covenant in the lease deed was valid and enforceable? 2. Whether the writ petition was maintainable against the government despite the immunity of the President?
Ratio Decidendi: 1. The court held that the restrictive covenant was valid and enforceable because: - The lease was a statutory lease and the restrictive covenant was part of the statutory form prescribed in the rules. - The intention of the parties was to give a building lease for residential purposes only, as evidenced by the allotment letter, the lease deed, and the conveyance deed. - The covenant was clear and unambiguous in prohibiting the lessee from using the premises for any purpose other than residential without the written consent of the Chief Commissioner. 2. The court held that the writ petition was maintainable against the government despite the immunity of the President because: - The President acts on the advice of the cabinet and the writ could be issued to the members of the cabinet or the government requiring them to advise the President not to act contrary to law. - Article 361 of the Constitution, which grants immunity to the President, does not exempt the Central Government as such from legal proceedings.
Final Decision: The court dismissed the writ petition, holding that the notice to re-enter was valid and that the petitioners had no right to use the premises for trade or business.
( 1 ) THIS is a test case. Ranjinder Nagar House Owners Welfare Association and its 54 members have brought this writ petition under Article 226 of the Constitution against the Union of India challenging the validity of notice dated 7th July, 1970/24th July, 1970 issued by the Land and Development Officer, Respondent No. 3, to one of its members Ghanshyam Dass, petitioner No. 1, to show cause why his premises be not re-entered by the President of India. As similiar notices have been issued to other members of the Association they have made it a test case .
( 2 ) THESE are the facts. The displaced persons who were uprooted from their home land in West Pakistan in the wake of partition of the country in 1947 had to be resettled. One of the legislative measures taken in this behalf was the passing of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (the. Act ). This came into force on 9-10-1954. The Government set up displaced persons colonies. One such colony was Rajinder Nagar. The Government allotted houses to displaced persons in this colony. They issued an allotment letter to each of the displaced persons who were in need of accommodation, The allotment letter said that the allottee is allotted a particular house and is permitted to occupy it on his giving undertaking to the effect : 1. That he will pay the rent as may be fixed in respect thereof by the Government hereafter ; 2. That he will duly execute a lease deed in the form approved by the Government in this behalf ; 3. That he will pay rent from the date of occupation of the house ; and 4. That in case he fails to take possession of the house within a period of 7 days from the date of the allotment order, the allotment shall be deemed to have been cancelled.
( 3 ) THESE allotments letters were issued in 1951. After the Act of 1954 the allottees were required by the Government to execute lease deeds. Appendix XI of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955 (the Rules) prescribed the form of the lease deed applicable to Government owned sites in Delhi. Under Rule 40 (3) it is provided that where a Government built property is sold to a purchaser the site will be held by the purchaser under the lease which shall be demised to him on such terms and conditions as shall be determined by the Settlement Commissioner. As regards the superstructure, on the payment of the full price the ownership of the structure shall be transferred to the purchaser. The terms and conditions of the lease, the rule says, shall be as in appends XI of the Rules.
( 4 ) NOW we turn to appendix XI. This is the statutory form of the lease deed. In the prescribed form the lease deeds were executed by the allottees in 1963 or thereabout. The buildings constructed on the lease hold sites were transferred to them by deeds of conveyance as provide in rule 91 (8 ). In short the lease deeds were executed in respect of the site in the statutory form set forth in appendix XI. Conveyance deeds were executed in the statutory form given in appendix XXV. This is how the displaced persons were resettled in the new environment. Both these documents were executed by the President of India on behalf of the Government. In the case of lease he was the lessor and the allottee was the lessee. In the case of the conveyance deed he was the vendor and the allottee was the purchaser.
( 5 ) TO this case we are concerned only with lease and in particular clause l (vi) which is in these terms ;
"1. The Lessee doth to the intent that his burden of the covenants may rim with the said land and may bind any permitted assignee thereof hereby covenant with the Lessor as follows : (vi) not without the written consent of the Chief Commissioner, Delhi to carry on or permit to be carried on, on the said land and buildings erected thereon during the said 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 si
