Full Judgment Text
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CASE NO.:
Appeal (civil) 947 of 1995
PETITIONER:
Union of India
RESPONDENT:
Shiv Dayal Soin & Sons Pvt. Ltd. and others
DATE OF JUDGMENT: 26/02/2003
BENCH:
CJI & ASHOK BHAN
JUDGMENT:
JUDGMENT
KHARE, CJI
By lease deed dated December 10, 1952 executed by the appellants
herein, a plot of land at A/25, Nizamuddin West, New Delhi was leased out
for 99 years to the predecessor in-interest of Respondent No. 1. The
aforesaid land was demised by the appellant herein under the Displaced
Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred
to as ’the Act’).
The said lease was executed on terms and conditions stipulated in
Appendix XIII of Rule 40(3) of the Rules framed under the Act. Clause
1(vii) of the lease deed runs as under:
"1. The lessee doth to the intent that the burden of the
covenants may run with the said land and may bind any
permitted assignee thereof hereby covenant with the lessor as
follows:
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"(vii) not to use the said land and buildings that may be erected
thereon during the said term for any purpose other than the
purpose of constructing a house without the previous consent in
writing of an officer appointed by the lessor in this behalf;
provided that the lease shall become void if the land is used for
any purpose other than that for which the lease is granted not
being a purpose subsequently approved by the said officer."
It is not disputed that respondent No.1 herein constructed a
house over the leased land. However, respondent No.1 let out the
ground floor, the first floor and the second floor of the house to
various tenants. The first floor of the house was leased out to the
Life Insurance Corporation of India for non-residential purpose.
Since the first floor was let out to Life Insurance Corporation of India,
the appellant herein sent a notice dated July 3, 1970 to respondent no.
1 herein pointing out that the lease of first floor of the house to the
Life Insurance Corporation of India being for a non-residential
purpose, the respondent no. 1 has contravened clause 1 (vii) of the
lease deed. By the said notice, the appellants demanded payment of
penal charges for the contravention of terms of lease deed. By
another letter dated December 14, 1972, for the aforesaid violation of
the terms of the lease deed the charges were quantified by the
appellant at a sum of Rs. 39,039.92. Respondent no. 1 herein replied
to the aforesaid notice stating that he had not committed any breach of
the terms of the lease deed and, therefore, was not obliged to pay any
penal charges. Since no penal charges were paid by respondent no. 1
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as demanded, the appellant withdrew the offer of the penal charges
and respondent no. 1 was informed that further action to re-enter in
the house or otherwise would be considered as per the relevant terms
of the lease deed without any further notice. The appellant thereafter
on August 18, 1973 sent a notice to respondent no. 1 informing him
that since he has committed the breach of Clause 1 (vii) of the lease
deed, therefore the appellant was constrained to exercise the right of
re-entry. By the said notice, the respondent no. 1 was also informed
that his right, title and interest in the premises are extinguished and
the said premises stands vested in the President of India on account of
the breach of the terms of lease deed committed by him. Respondent
no. 1 was further asked to deliver the physical possession of the
premises to the appellant. It is in this context respondent no. 1 filed a
petition under Article 226 of the Constitution challenging the notice
dated August 18, 1973 issued by the appellant. Before the High
Court, respondent no. 1 inter alia contended that he has not
contravened the terms of the lease deed, that he admittedly has
constructed a house over the leased land and that its use for non-
residential purposes is not a contravention of the terms of lease deed.
These contentions of respondent no. 1 herein were accepted by the
High Court. Consequently, the Writ Petition was allowed and the
impugned notice was set aside. Aggrieved by the judgment of the
High Court, the appellant has preferred this appeal by means of a
special leave petition.
Learned counsel, appearing for the appellant, urged that the
land having been leased for construction of house namely for
residential purposes, the same could not have been used for non-
residential purpose and, therefore, respondent no. 1 has contravened
the terms of Clause 1 (vii) of the lease deed and, therefore lessee’s
right, title and interest in the land had extinguished and the view
taken by the High Court is erroneous. After we have heard the
counsel for the parties, we do not find merit in the contention. It is
not disputed that under the terms of Clause 1 (vii) of the lease deed,
the predecessor in-interest of respondent no. 1 was required to
construct a house on the leased land. It is also not disputed that
respondent no. 1 herein did construct a house over the land. The
question that arises for consideration is whether the letting out of first
floor of the house to the Life Insurance Corporation of India for non-
residential purpose was contravention of Clause 1 (vii) of the lease
deed? Under the Rules framed under the Act, various types of leases
are set out in Appendix XI, XII and XIII to Rule 40(3) of the Rules.
Admittedly, the predecessor-in-interest of respondent no. 1 was
granted lease in terms of Appendix XIII to Rule 40(3). Clause 1
(vii) of the Appendix XIII, the breach of which is alleged to have been
committed, required the lessee of the leased land to construct a house.
No further embargo or limitation was placed on lessee under the
aforesaid lease. The lease deed nowhere stipulated that the house
constructed by the lessee would be used exclusively for residential
purpose or would not be used for non-residential purposes. A house,
unless prohibited by the terms of lease deed or any statutory
provisions, can be used for residential as well as for non-residential
purposes. In this context, we would look into the other forms of
leases statutorily provided under the Rules. One of the different forms
of leases is contained in Appendix XI. A perusal of Appendix XI and
XII shows that terms of lease deed in Appendix XIII are different
from the terms of lease stipulated in Appendix XI. The relevant sub-
clauses (ii) and (v) of clause (1) of Appendix XI are as under :
"(ii) .Lessee shall..erectone building single
storeyed containing one residential flat or double
storeyed consisting of one or two residential flats."
"(v) not to erect more than one building single storeyed
containing one residential flat or double storeyed
consisting of one or two residential flats.."
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The above sub-clauses 1 (ii) and (v) pertain to actual
construction or absence of construction by the lessee. They further
demonstrate that residential flat signifies its use exclusively for the
residential purposes. No such expression finds place in Clause 1 (vii)
of Appendix XIII. Further Sub- clause (vi) of Clause 1 of Appendix
XI which runs as under shows that the lease prohibits the use of
building for any other purposes excepting for residential purpose:-
"(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
and 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 of one residential flat or a double storeyed
building consisting of one or two residential flats in all, with a
barsati on top, as may be approved for the locality or as
provided in the building already erected on the said
land"(emphasis supplied).
The lessee under the abovesaid terms of lease deed is in fact
precluded from using the house for any purpose other than residential
purpose. This interpretation would be further supported by the
phraseology of the relevant clause 1 (vii) of Appendix XIII, cited
above, which contains no reference to the word ’residential’. As a
canon of statutory interpretation, expressio unius est exclusio alterius,
what is expressly mentioned in one place but not in another must be
taken to have been deliberately omitted. The argument raised by the
learned counsel for the appellant proceeds on assumption that a house
by its meaning and definition is capable of being used exclusively for
residential purposes and not for non-residential purposes which is not
a correct interpretation of sub-clause (vii) of Clause I of Appendix
XIII.
For the aforesaid reasons we are of the view that respondent no.
1 after having constructed a house, did not contravene the terms of the
lease merely because he let out the building for non-residential
purpose.
It was then urged on behalf of the appellant that since under
Clause 1 (ii) of lease deed an obligation was placed on lessee to
comply with the municipal rules, regulations and bye-laws and since
the use of building for non-residential purpose is contrary to Master
Plan, Zonal Plan or other plans prepared under the Delhi Development
Act, the right and title of respondent no. 1 in respect of the land stood
extinguished. We are not deposed to go into this submission as the
impugned action has been taken against respondent no. 1 under the
lease deed, the terms of which are said to be violated by respondent
no. 1. However, it would be open to the appellant to take such action
as may be permissible under the other provisions of law against
respondent no. 1.
For the aforesaid reasons, the instant appeal is accordingly
dismissed. There shall be no order as to costs.
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