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1986 DIGILAW 267 (DEL)

AMRIT LAL BUSSI v. UNION OF INDIA

1986-08-01

SUNANDA BHANDARE

body1986
SUNANDA BHANDARE, J. ( 1 ) THE petitioner constructed a double storey house on a plot of land given on lease to the petitioner vide lease deed dt. 28th Dec. , 1960 entered into between the petitioner and the President of India. On 5th July, 1967 this house was given on rent by the petitioner to the National Co-operative Consumers Federation Limited, New Delhi (hereinafter referred to as Federation) a semi government body for residential-cum-office purposes. On 29th Sept. , 1969 the petitioner wrote a letter to the Federation withdrawing the permission to use the premises for office purposes. On 20th March 1970 the Land and Development Officer, New Delhi sent a notice to the petitioner stating therein that the premises were being misused in breach and contravention of Clause I (vi) of the lease deed dt. 28th Dec. , 1960 and, therefore, the petitioner was required to remedy the said breach within 30 days of the receipt of the notice. Since the petitioner received this notice from the Land and Development Officer the petitioner wrote another letter on 13th April, 1970 to the Federation to hand over vacant possession to the petitioner. Again another letter was sent by the Assistant Settlement Commissioner to the petitioner on llth May, 1970 wherein the petitioner was informed that the use of the premises for office purposes up to 14th July, 1970 would be regularised on payment of misuse charges. This notice was followed by another notice dt. 25th Nov. , 1970 wherein the petitioner was required to pay the amount of misuse charges within 30 days. On 23rd Dec. , 1970 the petitioner met the Assistant Settlement Commissioner and requested that in view of the fact that in spite of the legal notices sent by the petitioner the Federation had not stopped the misuse, action against it be taken by the Assistant Settlement Commissioner. However, on 2nd Feb. , 1971 the petitioner received a notice from the Assistant Settlement Commissioner to show cause within 30 days as to why the property should not be re-entered. The petitioner on 3rd March, 1971 wrote to the Assistant Settlement Commissioner to extend the time for submitting his reply to the show cause notice for the reasons stated in the said letter. , 1971 the petitioner received a notice from the Assistant Settlement Commissioner to show cause within 30 days as to why the property should not be re-entered. The petitioner on 3rd March, 1971 wrote to the Assistant Settlement Commissioner to extend the time for submitting his reply to the show cause notice for the reasons stated in the said letter. Thereafter, on 2nd September 1971 the petitioner was informed that the lessor had been constrained to exercise his right of re-entry and re-entered upon the premises and that the Assistant Engineer of the Land and Development Office, New Delhi had been directed to take over physical possession of the said premises from the petitioner on 7th Sept. , 1971. These four notices dt. llth May, 1970, 25th Nov. , 1970, 2nd Feb. , 1971 and 2nd Sept. , 1971 imposing misuse charges and ordering re-entry in the premises have been challenged in this petition under Art. 226 of the Constitution. ( 2 ) IT was contended by the learned counsel for the petitioner that the premises had not been misused by the petitioner because as per the lease deed the premises could not be used for business and trading purpose and the use of the premises by the Federation for office-cum-residence purposes did not amount to misuse. The Federation was not indulging in any trading or business activities and, therefore, there was no misuse/furthermore, it was contended that as soon as the petitioner realised that the premises could not be used even for office purposes he immediately revoked the earlier permission given to the tenant to use it for office purposes and also sent a legal notice to the Federation informing them to stop the misuse and also asked the Assistant Settlement Commissioner to take appropriate action against the Federation. It was, therefore, submitted that since the petitioner had taken immediate steps to remedy the misuse within reasonable time he was not liable to pay misuse charges and no ground for re-entry was made out. ( 3 ) ON behalf of the respondent, it was contended by the learned counsel that the petitioner had given these premises to the Federation for office-cum-residential purposes and the use of the premises for office purposes without prior permission was against the conditions of lease. ( 3 ) ON behalf of the respondent, it was contended by the learned counsel that the petitioner had given these premises to the Federation for office-cum-residential purposes and the use of the premises for office purposes without prior permission was against the conditions of lease. It was, therefore, submitted that theetitioner having misused the property the order of re-entry and misuse charges was rightly passed. ( 4 ) CLAUSE I (vi) of the lease deed reads thus :- "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 building? erected thereon during the said lease any trade or business whatsoever 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;" ( 5 ) CLAUSE III of the lease deed reads thus: "iii. No forfeiture or re-entry shall be effected except as herein provided, without the permission of the Chief Commissioner of Delhi and Chief Commissioner shall not permit such forfeiture or re-entry until the Lessor has served on the Lessee a notice in ; writing (a) Specifying the particular breach complained of; (b) If the breach is capable of remedy, requiring the Lessee to remedy the breach, and the Lessee fails within a reasonable time from the date of service of the notice to remedy the breach if it is capable of remedy; and in the event of forfeiture or re-entry the Chief Commissioner may in his discretion relieve against forfeiture on such terms and conditions as he thinks proper. Nothing in this clause shall apply to entry for breach of covenant against unauthorised sub-division. " ( 6 ) I find no substance in the contention of the learned counsel for the petitioner that the use of the premises by the Federation for office purposes was not against the terms of the lease deed because use for office is not use for trading or business purposes. " ( 6 ) I find no substance in the contention of the learned counsel for the petitioner that the use of the premises by the Federation for office purposes was not against the terms of the lease deed because use for office is not use for trading or business purposes. There can be no doubt that the use of the premises by the Federation which was a semi government body though working on no profit no loss basis was for business purposes. Moreover, from the plain reading of the two clauses of the lease deed it is clear that the land in question was given to. the petitioner on lease for being used purely for residential purposes and use of the same for business or trading purposes whatsoever without the permission of the Chief Commissioner was specifically prohibited. However, under Clause III no forfeiture or re-entry could be effected without giving notice in writing to lessee specifying the particular breach complained of and if the breach was capable of being remedied, requiring the lessee to remedy the breach. It was only if the lessee tailed to remedy the breach within reasonable time that an order for re-entry and forfeiture could be made. In the present case, the premises were given on rent to the Federation for office-cum-residence purposes on 5th July 1967 however subsequently even before the respondent sent the notice dt. 11th May 1970 tothe petitioner imposing misuse charges, on 29th Sept. , 1969 the petitioner revoked the permission given to the tenant to use the premises for office purposes. In any event by notice dt. llth May, 1970 the Assistant Settlement Commissioner had indicated that the misuse would be regularised and temporary use of the premises as office would be permitted up to 14th July, 1970 provided the petitioner agreed to the terms and conditions mentioned in the said letter. The petitioner thereafter continued his efforts to get the breach remedied by persuading the tenant to stop the misuse and vacate the premises and in fact in the year 1976 the Federation vacated the premises and the misuse stopped. ( 7 ) IN C. W. 361 of 1973 (Guru Sarup Vohra v. Delhi Development Authority) decided by me on 7th Oct. ( 7 ) IN C. W. 361 of 1973 (Guru Sarup Vohra v. Delhi Development Authority) decided by me on 7th Oct. , l985 I have held that what is reasonable time is a question which depends on the facts and circumstances of each particular case and when premises are tenanted and the misuse is by the tenant the time taken by the lessee in stopping the misuse by the tenant has to be considered to be reasonable time while interpreting a lease deed which specifies that re-entry and forfeiture will not be ordered if the misuse is remedied within reasonable time. This, of course would be applicable if the lessee takes immediate steps against the tenant available to him under the law. ( 8 ) IN the present case even before the first notice dt. 11th May 1970 was sent by the Assistant Settlement Commissioner the petitioner realised that the use of the premises for office purposes may also be considered to be use for purposes of business and trading which amounted to misuse and thus he revoked the permission given for use of the same by the Federation for office. If the premises are in possession of the lessee himself, then of course it is in his hands to stop the misuse and in such a case the reasonable time may be as specified in the notice. Since in the present case the premises were not in possession of the petitioner and immediate steps were taken by the petitioner against the tenant Federation as permissible under law to stop the misuse and in fact the misuse was remedied in 1976, in my opinion, the misuse was remedied within reasonable time and the order of re-entry cannot be sustained. ( 9 ) NOW coming to the question of misuse chargcoming to the question of mususe charges for the period during which premises were used by the Federation for office purposes. It appears that at some stage the sons of the petitioner had agreed to pay the misuse charges. Even in this Court no serious challenge was made to the power of the respondent to levy misuse charges, however the quantum was challenged on the ground that it was being charged without any basis. In any event the misuse charges indicated in the notice dt. llth May 1970 are only for the period up to 14th July, 1970. Even in this Court no serious challenge was made to the power of the respondent to levy misuse charges, however the quantum was challenged on the ground that it was being charged without any basis. In any event the misuse charges indicated in the notice dt. llth May 1970 are only for the period up to 14th July, 1970. The misuse charges win have to be, therefore, computed up to the date the misuse continued. Therefore, computation of the charges will have to be done afresh. ( 10 ) I, therefore, allow the writ petition and set the notices dt llth May, 1970, 25th Nov. 1970, 2nd Feb. , 1971 and 2nd Sept. , 1971 but leave it open to the respondent to levy misuse charges according to law. There will be no order as to costs.