Citation Codes

Equivalent Citations

citation codes

Case Number

Civil Writ 869/1970.

Attorney(S)

For the Petitioners:— Mr. M.G Dhingra, Advocate.
— Mr. D.P Wadhwa, Standing Counsel with Mr. Madan Lokur & Mr. Atul Kumar, Advocates.

Judges

Avadh Behari Rohatgi

Acts

Rehabilitation) Act, 1954 (the Act).
DELHI RENT CONTROL ACT 1958

See more information ...

Smart Summary

Structured Summary of the Opinion (Avadh Behari Rohatgi, J.)

Factual and Procedural Background

This is a test case brought by Ranjinder Nagar House Owners' Welfare Association and 54 of its members by a writ petition under Article 226 of the Constitution. The petition challenges the validity of a notice dated 7th July, 1970 / 24th July, 1970 issued by the Land and Development Officer (Respondent No. 3) to one of the members, Ghanshyam Dass (petitioner No. 1), requiring him to show cause why his premises should not be re-entered by the President of India. Similar notices had been issued to other members, hence the matter was taken as a test case.

Background facts leading to the dispute, as set out in the opinion, are:

Displaced persons uprooted at Partition (1947) were resettled by measures including the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (the Act) which came into force on 9-10-1954.
The Government set up colonies (one named in the opinion as “Rajinder Nagar”) and issued allotment letters (issued in 1951) permitting occupation subject to undertakings (pay rent, execute lease deed in Government-approved form, pay rent from occupation date, take possession within 7 days or allotment cancelled).
After the 1954 Act, allottees were required to execute lease deeds in the statutory form prescribed by Appendix XI of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955 (the Rules); lease deeds were executed circa 1963. Conveyance deeds for superstructures were executed in the statutory form given in Appendix XXV.
The lease contains clause 1(vi), a restrictive covenant which (in the words of the lease) prohibits carrying on or permitting any trade or business on the demised land or using it for any purpose other than specified residential building forms, without the written consent of the Chief Commissioner, Delhi.
Certain lessees are alleged to have used whole or part of their buildings for business purposes; the lessor (President of India, exercised through officers) issued show-cause notices of re-entry under clause II of the lease which provides for re-entry and termination on breach.
The Union of India raised a preliminary objection to the maintainability of the writ petition, contending the lease is contractual so Article 226 could not be invoked; the court rejected this objection.
On the merits, the court considered whether the impugned notice (for re-entry) was valid and whether clause 1(vi) should be interpreted as prohibiting use of part only of a leased premises for trade or business.
The writ petition was ultimately dismissed and the parties were left to bear their own costs.

Legal Issues Presented

Whether the writ petition under Article 226 challenging the notice of re-entry is maintainable, given the Union of India's contention that the lease is merely contractual and the President is immune from proceedings under Article 361.
Whether clause 1(vi) of the statutory lease (Appendix XI) permits the use of a part of the leased premises for trade or business while retaining part for residential use, or whether it amounts to a total prohibition of trade/business on the premises without written consent.
Whether the impugned show-cause notice of re-entry issued by the lessor (in the name of the President of India) for alleged breach of clause 1(vi) is valid under the terms of the lease.
(Raised in the petition but abandoned in argument) Whether clause 1(vi) is ultra vires.

Arguments of the Parties

Petitioners' Arguments

The petition originally sought a declaration that clause 1(vi) is ultra vires (this contention was not argued and was abandoned).
The principal argument pressed by petitioners' counsel was that clause 1(vi) does not mean an absolute prohibition: a part of the leased land could be used for trade or business provided some part continued to be used for residential purposes. Emphasis was placed on the absence of the words "in any part thereof" in clause (vi), which appear in later clauses (vii) and (viii), to support a distinction between the clauses.
Petitioners relied on authorities (including Indraloke Studio Ltd. v. Shanti Debi, Amrik Chand v. Harbans Singh, and other Rent Control Act cases) for the proposition (under the Rent Act context) that change of user must be of the whole of the premises and not of part only.

Respondent / Union of India (and Government) Arguments

The Union contended the writ petition was not maintainable because the lease is a contractual document and Article 226 could not be invoked to challenge contractual obligations; Burmah Construction Co. v. State of Orissa (AIR 1962 SC 1320) was cited in support.
The Union also relied on the proposition that the President enjoys immunity under Article 361 (i.e., writ cannot be issued to the President), and that actions in the name of the President raise issues of immunity.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Burmah Construction Co. v. State of Orissa, AIR 1962 S.C. 1320	Cited by Union counsel to support the proposition that a lease is a contractual document and Article 226 is not available in such matters.	The court considered the citation but rejected the submission. It distinguished the lease in this case as a "statutory lease" governed by Rules and a statutory form; therefore Article 226 was available.
Re Halle, 24 Ch. D. 624	Authority concerning that a lease containing a covenant by a lessee to build may be regarded as a building lease.	The court referred to this authority to support its conclusion that the lease in question was a building lease, given the covenants and circumstances.
Teh Cheng Poh v. Public Prosecutor, (1980) A.C. 458	Principle (from Privy Council / Lord Diplock) that although writs cannot issue to a monarch or President directly, relief may be obtained against those advising executive action.	The court accepted the view as supporting the availability of judicial relief against the Government (those who advise the President) even though writs cannot be issued to the President personally.
Province of Bombay v. Khushaldas, AIR 1950 S.C. 222	Authority on the scope of Article 361, indicating that immunity under Article 361 is personal to the President.	The court relied on this case to hold that Article 361 does not render the Government as such exempt from proceedings; the proviso to Article 361 and Article 300 allow proceedings against the Government.
Indraloke Studio Ltd. v. Shanti Debi, AIR 1960 Cal. 609	Cited by petitioners (and noted by the court) as an authority under the Delhi Rent Control Act for the proposition that user for a purpose other than that for which premises were let must be of the whole premises and not part only.	The court observed that Indraloke Studio (and similar cases) are rulings under the Rent Act (statutory interpretation) and held they were not directly applicable to interpretation of the terms of a lease/conveyance document; the court did not accept the petitioners' reliance on these authorities for the present lease interpretation.
Amrik Chand v. Harbans Singh, 1971 DLT 125	Ruling under the Rent Act relied upon to support the "whole vs part" user proposition (as noted by the petitioners).	The court treated this as a Rent Act decision and did not accept it as determinative of the construction of the statutory lease in this case.
Firm Himalayan Traders v. Narain Dass, 1966 PLR 367	One of the Rent Act authorities referred to by petitioners' counsel on the "whole vs part" user issue.	The court noted the citation but held that those authorities related to statutory interpretation under the Rent Act and did not control the construction of the lease document here.
Inder Singh v. Kalu Ram, 1965 PLR 58	Another Rent Act decision cited in support of the petitioners' user argument.	The court again observed the Rent Act context and did not apply these principles to alter the interpretation of clause 1(vi) of the lease.
Sahebzada Mohammad Kamgar Shah v. Jagdish Chandra Deo Dhobal Deo, (1960) 3 SCR 604	Cited among authorities referenced by petitioners (context in opinion indicates Rent Act / user issues).	The court listed it among the cited authorities but treated these as Rent Act cases not controlling the interpretation of the lease instrument.
D.D.A. v. D.C. Kaushish, 1973 RLR (S.C.) 614	Cited by petitioners' counsel (context not elaborated in detail in the opinion).	The court listed the case; it did not rely on it to change its construction of the lease.
Church v. Brown, (1808) 33 E.R. 752	English authority on alienation/subletting suggesting that a covenant against subletting may not bar subletting of part of the premises.	The court acknowledged the English law on alienation and noted that such authorities do not assist in interpreting clause 1(vi) of this lease; clauses 7 and 8 (dealing with subdivision/alienation) were treated separately and did not affect clause 6's construction.
Cook v. Shoesmith, (1951) 1 K.B. 752	English authority on alienation/subletting of part of premises.	The court cited it as part of the English principle against alienation but held it did not help in construing clause 1(vi), which must be read on its own terms.
Chitaley on Transfer of Property (4th ed.) Vol. 3, p.195	Textual authority cited in connection with principles governing alienation and subletting.	The court referred to the commentary to explain English law on alienation/subletting, but observed it did not assist in interpreting clause 1(vi) of the statutory lease.

Court's Reasoning and Analysis

The court's reasoning proceeds in two main stages: a preliminary objection on maintainability and then the merits (interpretation of the lease and validity of the re-entry notice).

1. Maintainability (Preliminary Objection)

The Union contended that the lease is a contractual document and therefore Article 226 is not available. The court rejected this contention on the ground that the lease is a "statutory lease": the form of lease was prescribed by Appendix XI of the Rules (statutory rules made under the Displaced Persons Act), and the rules could not be altered by the President. Accordingly, the transaction has a strong statutory character and the rights and liabilities are statutory in nature; judicial review under Article 226 is therefore available.
Regarding President's immunity under Article 361, the court acknowledged the personal immunity but explained that this does not preclude relief against those who advise or act for the President. The court adopted (and cited) the approach exemplified by Teh Cheng Poh to say that, while writs cannot be issued to the President personally, relief can be sought from the Government (members of the cabinet) who advise him and whose actions can be reviewed. The court also relied on Province of Bombay v. Khushaldas and the proviso to Article 361, and on Article 300 (sueability of the Government of India) to conclude that the Government can be subject to legal proceedings in these circumstances. The preliminary objection was therefore rejected.

2. Merits — Characterisation of Lease and Construction of Clause 1(vi)

The court characterised the lease as a building lease by reference to (a) the circumstances of the contract, (b) the subject matter of the demise, and (c) the nature of the covenants, specifically noting the covenant by the lessee to build (citing Re Halle). The lease expressly limited use to certain forms of residential building and expressly prohibited carrying on "any trade or business whatsoever" without written consent of the Chief Commissioner.
The court emphasised the language of clause 1(vi), describing it as "explicit and emphatic" and noting the significance of the word "whatsoever" as showing an intention to prohibit trade or business comprehensively.
The petitioners' argument that clause 1(vi) did not bar use of a part of the premises for business (relying on the absence of the phrase "in any part thereof" in clause (vi) while present in clauses (vii) and (viii)) was considered and rejected. The court held such an interpretation would destroy the object of the transaction (providing homes to displaced persons) and be inconsistent with the evident intention of the parties.
The court noted that the conveyance deed contains a similar restriction (use only for residence without prior written consent), and that the conveyance provides for resumption in case of breach. The rights of re-entry (in the lease) and resumption (in the conveyance) are instruments to effectuate the residential-use intention.
The court acknowledged an administrative "rationalised policy" (Ministry letter dated 11-12-1968) that permits limited professional use (one room not exceeding 300 sq. ft.) for certain professionals with consent, but stated that apart from such exceptions there is nothing in the lease to allow trade or business on the premises.
On the petitioners' reliance on Rent Control Act authorities (Indraloke, Amrik Chand, Firm Himalayan Traders, Inder Singh and others) which had held under the Rent Act that a user-change must be of the whole and not part only, the court observed these are statutory interpretations under the Rent Act. The court distinguished those cases from the present situation where the task was to interpret the terms of a document (lease/conveyance) — a transfer or disposition of property — and concluded that the whole will include the part; absence of the words "in any part thereof" in clause (vi) does not license partial business use.
As to clauses dealing with subdivision/alienation (clause (vii)), the court noted English decisions that a covenant against subletting may not bar subletting part of the premises, but held that those English principles and clauses (vii) and (viii) did not assist in interpreting clause (vi), which must be construed on its own terms.
Because the impugned notice of re-entry was strictly in terms of the lease (alleging breach of clause 1(vi) and relying on clause II for re-entry), the court found the notice valid and not challengeable on the ground that the lessee had a right to use part of the premises for trade or business.

Holding and Implications

Holding: The writ petition is DISMISSED.

Implications and direct effects:

The court held that the lease is a statutory building lease containing an explicit and comprehensive prohibition (clause 1(vi)) on carrying on any trade or business on the demised premises without prior written consent. The impugned show-cause notice for re-entry, issued for breach of that clause, was held to be valid and in accordance with the lease.
The court rejected the preliminary objection that Article 226 was unavailable and that the President's immunity under Article 361 barred relief; it held that the statutory character of the lease permits judicial review and that relief may be sought against the Government (those advising/acting for the President) despite the personal immunity of the President.
The immediate practical consequence is that the petitioners' challenge to the notice failed and the notice stands valid. The court ordered that parties bear their own costs.
The opinion does not record the setting of a broader binding precedent beyond application of these legal conclusions to the facts; the direct legal effect announced in the opinion is the dismissal of the writ petition and validation of the notice in question.

Disposition: Writ Petition Dismissed. Parties to bear their own costs.

Show full summary ...

Ghanshyam Petitioner v. Union Of India

Avadh Behari Rohatgi, J.:— 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 appendix 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 provided 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. In this case we are concerned only with lease and in particular clause 1(vi) which is in these terms;

“1. The Lessee doth to the intent that his burden of the covenants may run 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 single storeyed building consisting of one residential flat or a double storeyed building consisting of one or two residential flats in all, with a barsati on a top, as may be approved for the locality or as provided in the building already erected on the said land.”

6. The President has given a building lease. This is the meaning of this clause. A building lease is a lease for building purposes. In determining whether a lease is, or is not, a building lease regard must be had to the (i) circumstances of the contract; (2) the subject matter of the demise; and (3) the nature of the covenants. Here the lease contains a covenant by a lessee to build (See Re Halle 24 Ch. D. 624). Only residential flats can be built not shops or offices. The lessee cannot carry on “any trade or business whatsoever”. Nor can he use the land and the buildings erected thereon for any purpose other that of residence. The clause is explicit and emphatic. The word “whatsoever” in the clause is an eloquent testimony of parties' intention to use the land and the built up property only for residence and no other purpose. “Whatsoever” implies that the preceding words are used in a comprehensive sense. The language excludes trade and business positively.

7. Now some of the lessees have put the whole or a part of their building to business purposes. And the lessor has issued show cause notices of recentry to them. The impugned notice is in these terms :

“Whereas on inspection of the premises mentioned above it was found that the same is being used by you for a purpose other than that for which it has been leased out and thus you have contravened clause 1(vi) of the lease deed.

Whereas inspite of being asked to remedy the breach vide notice dated 8-11-65 and 20-2-67, you have failed to do so. You are hereby given a final show cause notice as to why the premises be not re-entered under clause II of the lease deed.

This notice is being given for and on behalf of the President of India.”

8. Clause II gives a right to the lesson to reenter upon the premises if there is a breach by the lessee of the covenants and conditions of the lease and on reentry “this demise and everything herein contained shall cease and determine.”

9. The only question raised before me is about the validity of the notice I have set out above. Before I consider the petitioners' case I must decide a preliminary objection raised to the maintainability of the writ petition by the Government. Counsel for the Union of India says that the writ petition is not maintainable because the lease is a contractual document and Art. 226 cannot be invoked in this case. I was referred to Burmah Construction Co. v. State of Orissa, AIR 1962 S.C 1320(1). In my opinion, there is no merit in this contention. The lease granted by the President in this case is what may be called for want of a better term a ‘statutory lease’. A statutory form is given in annexure XI in the Rules. Rules are also statutory. So the entire transaction of lease has a strong satutory flavour. It is not a case of a contractual obligation. It is a case of statutory rights and liabilities. The legislature has defined the rights and liabilites of the lessor and the lessee. The form of the lease cannot be altered by the President. The rules say that the lease shall be given in the form in annexure XI. It is therefore a statutory instrument for all purposes. If the lessor acts contrary to the terms of the lease, this court will interfere under Art. 226.

10. But then it is said that the lessor is the President and he enjoys an immunity. It must be remembered that the frontiers of judical review have recently been extended. It is true that writ cannot be issued to the President but it can be issued to those who advise him. He acts on the advice of the cabinet. The writ will therefore issue to the government asking them to desist from taking action contrary to the terms of the statutory instrument if the action is unsustainable in view of the terms and conditions of the lease.

11. Art. 361 of the Constitution makes the President immune from any proceedings whatsoever in any court. So writ will not issue to him. But this does not mean that the court is powerless to grant to the citizen a remedy in cases in which it can be established that the President has acted against the terms of the lease. Writ may not be against him; but since he is required in all executive functions to act in accordance with the advice of the council of ministers, writ can be sought against the members of the cabinet or the Government requiring them to advice the President not to act contrary to law. The Privy Council in an appeal from Malaysia has taken this view. Lord Diplock in Teh Cheng Poh v. Public Prosecutor (1980) A.C 458(2) has struck this new note. This is a plant of an early and rapid growth. Lord Diplock has brought it into being. We in this country can nourish it.

12. Art. 361 of the Constitution does not imply that the Central Government as such is exempt from legal proceedings. The exemption granted is purely a personal exemption to the President (See Province of Bombay v. Khushaldas, AIR 1950 SC 222 (3) (236, 248). This conclusion is reinforced by the proviso to Art. 361 which says :

“Provided further that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Government of India or the Government of a State”.

13. Art. 300 provides for the sueability of the Government of India and the Government of the State. The framers of our Constitution established a society governed by rule of law. And a Government of laws and not of men. They remembered the words of Thomas Fuller : “Be you ever so high, the law is above you.” So the Government can be sued for the action taken in the name of the President. I, therefore, reject the preliminary objection.

14. On merits there is precious little in this case. I find everything in order. The basic document is the lease. It is a building lease. Clause 6 is a restrictive covenant. It prohibits the lessee to use the demised land for any purpose other than for purposes of building a residential flat or flats. There is a total prohibition that the lessee shall not, without the written consent of the Chief Commissioner, carry on or permit to be carried on, on the said land and building any trade or business whatsoever.

15. Counsel for the petitioners contests this interpretation. In the petition he claimed that this clause is ultra vires and prayed for a declaration to this effect. But that case he did not argue and frankly abandoned it. Now he says that the clause does not mean a total prohibition. According to him a part of the leased land can be used for trade or business provided a part is continued to be used for residential purposes. In support of his submission he has invited my attention to the succeeding two clauses which are in these terms;

(vii) not to sub-divide the said land or building erected thereon or any part thereof without the prior permission of the Lessor in writing;

(viii) not to do or permit anything in or upon the demised premises or any part thereof which may be or became a nuisance, annoyance or cause damage to occupiers of other property in the neithbourhood.”

16. He laid stress on the words ‘any part thereof’ to bring his point home. He contends that these words ‘in any part thereof’ are not used in clause (vi) and therefore the lessee cannot be prevented under law from using a part of the premises for trade or business. In other words his case is that if the lessee is using a part of the premises for trade or business there is no breach of the term of the lease and in that event the notice of recentry issued by the President is illegal. He has referred me to Indraloke Studie Ltd. v. Shanti Debi, AIR 1960 Cal. 609(4). Amrik Chand v. Harbans Singh, 1971 DLT 125(5). Firm Himalayan Traders v. Narian dass, 1966 PLR 367(6) Inder Singh v. Kalu Ram, 1965 PLR 58(7), Sahebzada Mohammad Kamgar Shah v. Jagdish Chandra Deo Dhobal Deo, (1960) 3 SCR 604(8) and D.D.A v. D.C Kaushish, 1973 RLR (S.C) 614(9). I am afraid I cannot accept this submission. Such an interpretation of the lease will destroy the lease itself. It will be destructive of the transfer of property which was made with the object of providing of home to the homeless. Never before in history was there such a gigantic transfer of populations from one country to another. Never before was there such an urgent and pressing need of finding urban habitats for the unsettled.

17. The lessee cannot challenge the lease. He has taken the land under the lease itself and is enjoying it. The conveyance deed has a similar clause. It says :

“The purchaser shall not use the said property for any other purpose other than the purpose of residence without the previous consent in writing of the vendor or an officer appointed by him in this behalf.”

18. Now one thing is clear. The dominant intention of the parties at the time of the transaction was to give land for building purposes and to transfer the superstructure in complete ownership of the purchaser with the condition that he shall not use it for any purpose other than the purpose of a residence. If there is a breach, clause (viii) provides :

“In the event of the breach or non-observance by the purchaser of any of the covenants herein on his part to be observed then in any such case notwithstanding the waiver of any previous clause or right for re-entry, it shall be lawful for the vendor to enter into and upon the said property or any part thereof and to repossess, retain and enjoy the same as of his former estate and the purchaser shall not be entitled to a refund of the “purchase money or any part thereof or to any compensation whatsoever on account of such resumption.”

19. Both in lease and conveyance only with previous consent in writing of the President of India or an officer appointed by him in this behalf can the premises be used for purpose other than that of residence. The Ministry of Works, Housing and Supply in their letter dated 11-12-1968 to the Land and Development Officer has, on the subject of leases, laid down a “rationalised policy”. There are certain named purposes besides residence to which the premises can be put to use by the occupants. For example, one room not exceeding 300 sq. ft. in area can be used by lawyers, doctors, architects, engineers, chartered accountants, business consultants and journalists for their professional work. But only a small part of the premises not execeeding 300 sq. ft. in area can be used for purposes other than that of residence. (Such uses will not be termed as breaches of the lease by the lessor because he has agreed to such user.

20. Apart from this there is nothing to show that the lessee has a right under the lease to carry on trade or business in the premises. His right of user is restricted. This is clear from the allotment letter by which he agreed to execute the lease. This is clear from the lease deed itself subject to which he holds the property. In the event of breach there is a right of re-entry in the lessor. This is also evident from the conveyance deed which vests in the vendor the right of resumption of the built property, “his firmer estate”. In the event of breach of the terms of the lease the lessor has a right of re-entry. In the conveyance the vendor has a right of resumption. The rights and liabilities of the parties are clearly defined. The lessor has issued notice to the lessee for breach of the terms of the lease. This is perfectly in accordance with the indenture of lease. The notice is strictly in terms of the lease. It cannot be challenged on the ground that the lessee has a right to use a part of the premises for trade or business.

21. I need not discuss the authorities cited by counsel for the petitioners. They are rulings under the Delhi Rent Control Act 1958. Under the Rent Act it was held that user of the premises for a purpose other than that for which they were let under sec. 14(1)(c) must be of the whole of the premises let and not of part only. For this view Tatachari J. in Amrik Chand (supra) relied on Firm Himalayan Traders v. Narain Dass, and Inder Singh v. Kalu Ram, (supra). These are cases of statutory interpretation. Here we are not to interprete a statute. We have to interpret the terms of a document. A lease is a transfer of property. So is conveyance a disposition of property. The intention of the parties to both these documents is to give a building lease for residential purpose as I have said. To effectuate this intention provision is made for forfeiture of the lease is one document and resumption of the property in the other. Even an out and out sale is subject to the right of resumption. 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.

22. In the case of sub-division to which clause (vii) relates the rule of law is different. Where a covenant against alienation does not clearly indicate that alienation of even a part of the leased premises is prohibited subletting of the part of the premises will be valid according to English decisions. Thus the words ‘no subletting allowed” or ‘I agree not to sublet’ have been read not to bar subletting of a part of the leased premises (Church v. Brown. (1808) 33 ER 752 (10), Cook v. Shoesmith (1951) 1 K.B 752 (11). See also Chitaley on Transfer of Property (4th ed) Vol. 3 page 195). Indraloke Studio Ltd. v. Shanti Devi (supra) restates the English principle and refers to Church v. Brown and Cook v. Shoesmith (supra). That is the English law against alienation. In my opinion clauses 7 and 8 did not assist us in interpreting clause 6 which, I think, must be construed on its own terms.

23. For these reasons the writ petition is dismissed. But in the circumstances of the case I leave the parties to bear their own costs.

M.B.L Writ Petition Dismissed.

Ghanshyam Petitioner v. Union Of India

Structured Summary of the Opinion (Avadh Behari Rohatgi, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments

Respondent / Union of India (and Government) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

1. Maintainability (Preliminary Objection)

2. Merits — Characterisation of Lease and Construction of Clause 1(vi)

Holding and Implications

Ghanshyam Petitioner v. Union Of India

Comments