DEVI DATT Vs. UNION OF INDIA

JUDGEMENT

(1.) The facts giving rise to this suit in brief are that the plaintiff is a displaced person from West Pakistan, having migrated to India in the wake of partition of the country and settled here. He was allotted a plot of land bearing No. 6, Block 2, East Patel Nagar, New Delhi, measuring 800 sq. yards under a lease-deed executed in his favour by the President of India on 1st November 1950 on payment of Rs. 8,720.00 as initial premium which was paid, by him in cash. Thereafter, on coming into force of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as 'the Act') a fresh lease deed was executed by the Managing 'Officer in favour of the plaintiff as the said plot formed part of Compensation Pool created under S. 14 of the Act. The balance cost of-the land was paid by the plaintiff by adjustment of a part of the compensation payable to him under the provisions of the Act and the Rules made thereunder, viz: the Displaced Persons (Compensation and 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 & 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 premises at 2/6, East Patel Nagar, for commercial/business purpose having let the same to the Union Bank of India in contravention of clause I (vi) of the lease deed under which he was restrained from using or permitting or suffering to be used the premises for any other purpose except that of residence. So, he was called upon to get the breach remedied or regularised within 15 days failing which the Chief Commissioner. Delhi, would be requested to permit exercising the right of re-entry as provided in clause II of the lease deed. Thereupon, the plaintiff made representation dated 31st May 1968 to the Lt. Governor, Union Territory of Delhi (copy Ex, D8) as being successor-in-office to the erstwhile Chief Commissioner of Delhi for according ex post facto sanction permitting the use of a portion of the ground floor of his building No. 2/6, East Patel Nagar, by UBI for the purpose of banking and residence of their staff. While giving reasons for grant of ex post facto sanction he, inter alia, requested that the technical breach on his part in not obtaining his prior sanction of the Chief Commissioner for use of the premises for a purpose other than residence be also condoned. He also informed the L & DO vide another letter of even date (copy Ex. D10) that he had written to the Lt. Governor to accord the necessary sanction and requested him for allowing a reasonable time for a decision to be given on his application by the Lt. Governor. The aforesaid representation was forwarded to the L DO by the Secretary, Land & Building Department, Delhi Administration, for necessary action under his covering letter dated 27th June 1968 (copy Ex. D7) and a copy of the same was forwarded to the plaintiff with the direction that further correspondence in the matter be addressed to the L & DO. On receipt of the said letter the plaintiff wrote letter dated 1st July 1968 to the Secretary, Land & Building Department, Delhi Admn., with a copy to the L & DO to apprise him as to who was the competent authority to regularise the brea which under the terms of the lease could be done by the erstwhile Chief Commissioner of Delhi. It would appear that neither Delhi Administration nor the L & DO sent any reply to the said letter of the plaintiff informing him of the authority competent to accord the necessary sanction and a period of more than two years rolled by when a fresh show-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 & 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 & 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 unremedied 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 upon such re-entry the lease would cease and stand determined and the entire plot along with the building standing thereon would vest in the lessor. He was further called upon to hand over peaceful possession of the premises including land, building, fittings and fixtures etc. to an Assistant Engineer named therein on 31st December 1974. On receipt of the said notice, the plaintiff served a notice dated 29th December 1974 purporting to be under S. 80 of the Code of Civil Procedure upon defendant No. 1 (copy Ex. D15) calling upon the latter not to proceed against him under aforesaid order of re-entry dated 12th December 1974. Thereafter, on 3rd January 1977 he instituted the instant suit against the defendants for a declaration to the effect that the impugned order dated 12th December 1974 of forfeiture and re-entry upon his property 2/6, East Patel Nagar and the subsequent proceedings commenced against him by the Estate Officer under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 are null and void being without jurisdiction. He also claimed token damages in the sum of Rs. 100.00 for the aforesaid illegal and unwanton acts of the defendants.

(2.) The plaintiff has contended, amongst other grounds, that since the plot in question formed part of Compensation Pool the lease in favour of the plaintiff could, if at all, be forfeited or cancelled by the Managing Officer under Rule 102 of the Rules and defendant No. 2 was not at all competent to order forfeiture and re-entry on the property in question. In the next breath, however, he has urged that at any rate Rule 102 is ultra vires the Act in so far as Govt. built properties and plots of land acquired under the Resettlement of Displaced Persons (Land Acquisition) Act, 1948 are concerned. Hence, the lease of the plaintiffs plot could not be cancelled under Rule 102 which was void. He has challenged even the legality of clause II of the lease deed as being ultra vires the Act and the Rules as it vested the power of forfeiture/cancellation in an authority other than that mentioned in Rule 102. In the alternative he has contended that even if clause II of the lease deed were held to be ultra vires the permission of the Chief Commissioner of Delhi was required before forfeiture/cancellation and no such permission having been obtained, the impugned order is bad in law. Another contention raised 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 & DO letter dated 18th November 1970 and subsequent letters dated 11th February 1971 and 2nd September 1971, neither any satisfactory reply nor any unconditional request for compromise was received from the plaintiff. They assert that the plea of the plaintiff that the commercial user of the premises is condonable in view of the Ministry of Works & Housing letters dated 30th January 1961 and 10th July 1972 is not tenable for the property in question has not been requisitioned through the Director of Estates. They further assert that the representation made by the plaintiff was duly considered by the Lt. Governor of Delhi but was found to be wholly unsatisfactory.