Lokeshwar Prasad, J. ( 1 ) SINCE the above mentioned writ petitions, filed under Article 226 of the Constitution, raise common questions for consideration, the same, with the consent of the learned Counsel for the parties, have been heard together and are being disposed of by this common order. In all the writ petitions, plots of land, situated in the Vicinity of Connaught Place and India Gate, were auctioned and in respect of those plots of landws, so disposed of by auction, a separate perpetual lease deed,with identical terms, in respect of each such plot, was executed in favour of the auction purchasers by the then Secretary of State for India in Council through the then Commissioner, Delhi. Thereafter by several subsequent acts and assignments in law, the perpetual lease hold rights in respect of the abovesaid plots of land have been transferred in favour of the petitioners in the present writ petitions. Thus, it is not in dispute that each of the petitioners in the present writ petitions is the recognised lessee in respect of the plot in question so purchased by him. Initially, in terms of the lease deeds, on the plots in question, a single storeyed residential house was constructed. The present dispute in these writ petitions relates to an era when the construction of multi-storeyed buildings had just commenced in the city of Delhi. One of the major issues requiring consideration is regarding the terms on which the respondents can permit the change of user of residential premises to a multi-storeyed commercial premises. Practically, in most of the writ petitions, the petitioners, after obtaining the sanction of the building plans from the local authority, like the New Delhi Municipal Committee, have already constructed multi storeyed buildings consisting of flats. In some of the cases, the flats, so constructed in the multi-storeyed structures, have too been disposed of and thus have changed hands. The Land and Development Officer (hereinafter referred to as the L and DO ), on behalf of the lessor, in some of the cases has taken action by issuing a show cause notice to the concerned lessee for determining the lease and exercising right of re-entry on the ground that the lessee has violated the terms of the lease by constructing a multi-storeyed building thereby changing the user of the land without obtaining prior permission of the lessor in terms of the lease. ( 2 ) PRACTICALLY, in all the petitions, the petitioners have disputed the validity of the notices of re-entry and have sought for consequential directions to the respondents such as restraining them from taking possession of the building or in any way interfering with the possession and enjoyment of the petitioners over the leased land and the building standing thereon. ( 3 ) HOWEVER, as the record of proceedings before the Court shows, during the course of hearing, the emphasis shifted on settlement by revision of the terms of the leases on which the petitioners were holding the pieces of land. It was not disputed during the course of hearing by either party that the respondents were not serious about exercising their right of re-entry pursuant to the notices issued in that regard so long as petitioners were agreeable to suitable revision of the terms and conditions of the leases so as to benefit the lessor also or in other words so long as the lessees were reasonably prepared, to part with a fraction of the benefits, earned by them, by constructing multi-storeyed flats/complexes, to the lessor. To highlight this factual statement, we may specifically refer to some of the orders passed by the Court, through different Benches, seized of the hearing, from time to time. ( 4 ) IN CWP217/73 on 24. 9. 1982, the Division Bench passed the following order: "this order will cover not only this case but also other similar cases which are listed together or are shown on today s and yesterday s Board. During the course of hearing of this case and some other matters it has been brought to our notice that a policy decision was taken by the Central Government in the Ministry of Works and Housing and conveyed to the Land and Development Officer that re-entry notices or notices with regard to breach of conditions of lease could be withdrawn in appropriate cases on terms which may be given to individual owners by the Land and Development Officer. In consequence of this policy decision damages under the head charges were also worked out in some cases. Therefore, it appears that the Government was not really trying to enforce menticulously the clause regarding re-entry or forfeiture of lease. In consequence of this policy decision damages under the head charges were also worked out in some cases. Therefore, it appears that the Government was not really trying to enforce menticulously the clause regarding re-entry or forfeiture of lease. It was, however, keen that breaches should either be removed or regularised but the owners/lessees will have to conform to certain conditions and also, in some cases, pay charges for regularisation. This policy has also been a matter of comments and observation in some of the matters which have earlier come before us. In this view of the matter we direct that the petitioners, where asked, should give inspection and provide facility for inspection to the officers and officials of the respondents on appointed date and time. For this purpose respondents will ask for inspection from the petitioners. After the inspections have been done, the Land and Development Officer/dda should examine the feasibility of offering terms and conditions to the petitioners for regularisation and withdrawal, as may be necessary, in each case. These terms be offered, where feasible, within four weeks of inspection. The inspection themselves should be completed within four weeks from today. Where the DDA/ Land and Development Officer, for any reason, is not able to offer terms, in those cases the reasons therefor should be specifically brought to our notice. All these matters be listed for further orders and directions on December 13, 1982". ( 5 ) THE respondents made offers to the petitioners and the petitioners made representations there against - each setting out its own view point as to the proposed terms and conditions of the leases. On 7. 2. 1983, the Court took a note of these exchanges of proposals/counter proposals and said : "representations regarding those termsor counter proposals should be given by the parties concerned within 12 weeks from today. Partiesare also at liberty to make personal representations or representations through their representatives to the respondents and have the matter sorted out with the department early, if possible. The department on receiving counter proposals or representations should consider them in each case and decide within eight weeks of the receipt of each of those representations/counter proposals. Final decision of the department should be placed before us for further orders". ( 6 ) ON 7. 11. The department on receiving counter proposals or representations should consider them in each case and decide within eight weeks of the receipt of each of those representations/counter proposals. Final decision of the department should be placed before us for further orders". ( 6 ) ON 7. 11. 1983, it was brought to the notice of the Court that a personal hearing was required so as to resolve the issue. The Court said : "this matter and other similar matters are all on board today for directions. We are told that after giving inspection of the premises the petitioners made representations but they have not yet been given personal hearing". ( 7 ) ON 13. 1. 1987 while adjourning the hearing, the Court noted the statement of Counsel for the respondents that he would obtain instructions from the Government as to whether it was possible for it to have the question of damages, payable by the petitioners for regularisation adjudicated by an Arbitrator acceptable by both the parties. ( 8 ) SO also on 14. 9. 1988 the Court adjourned the hearing enabling respondents to carry out inspection of the premises and consider the case for regularisation of the breaches, if any, and offer terms and conditions for regularisation to the petitioners. ( 9 ) IN some of the cases, the petitioners moved specific applications seeking amendment in the writ petitions so as to lay a challenge on the proposals/orders made by the respondents during the pendency of the petitions. On 17. 7. 1995, the Court said, inter alia: "cw 1233/73 and other 43 connected matters It is a bunch of 44 matters fixed for hearing today. However, Mr. Singhvi, learned Senior Counsel appearing for some of the petitioners points out that in some of the petitions, the petitioners have moved applications for amendment in the respective writ petitions and as such those matters cannot be treated as ripe for hearing so long as the prayer for amendment is not disposed of. Both the learned Counsel have joined in submitting that during the pendency of these petitions, the respondents have revised their policy and offered the terms contained therein to the petitioners. The policy is acceptable to some of the petitioners, while some others are yet to make up their minds. Both the learned Counsel have joined in submitting that during the pendency of these petitions, the respondents have revised their policy and offered the terms contained therein to the petitioners. The policy is acceptable to some of the petitioners, while some others are yet to make up their minds. If they agree on the terms of the new policy, then the entire controversy may be resolved out of the Court and may be that only a little part of it, ancillary one, would be left out to be settled in the Court. Making that joint statement both of them jointly prayed for giving at least six weeks time to have a mutual discussion and to arrive at a settlement, if possible. In view of the joint prayer made by learned Counsel for the parties, it is directed that all the petitioners who have moved applications for amendment shall deliver copies thereof to the Counsel for the respondents within three days. Reply to the applications for amendment may be filed within two weeks thereafter". ( 10 ) IT is thus clear that the legality or otherwise of the notices of re-entry is an issue which has relegated into the background and the real issues which are to be decided and on which all the learned Counsel for the parties have addressed the Court centre around the terms and conditions to be incorporated in the fresh offer upon which the lessor would consider the regularisation of the breaches, with drawal of the notice of re-entry and grant of ex-post facto sanction for the construction of multi-storeyed complex on the demised premises, as will be noticed shortly hereinafter. ( 11 ) THE first such offer dated the 29th September, 1983 was given by the L and DO in compliance with the orders/directions of this Court dated the 7th February, 1983. Thereafter the Government of India, Ministry of Urban Development (Land Division) revised their policy on 11. 1. 1995. In pursuance of the orders/directions of this Court dated the 17th July, 1995 and on the basis of revised policy dated 11. 1. 1995, the Government of India, Ministry of Urban Affairs and Employment, Land and Development Office, Nirman Bhawan, New Delhi vide their Communication No. L and DO/li-9134 (6)/95/396 dated the 19th October, 1995 have given a revised offer. In pursuance of the orders/directions of this Court dated the 17th July, 1995 and on the basis of revised policy dated 11. 1. 1995, the Government of India, Ministry of Urban Affairs and Employment, Land and Development Office, Nirman Bhawan, New Delhi vide their Communication No. L and DO/li-9134 (6)/95/396 dated the 19th October, 1995 have given a revised offer. In terms of the offer of 1995, made by the L and DO, on behalf of the lessor, each lessee, for the condonation/ regularisation of the breaches of the terms of the lease was required to pay to the Land DO amount on account of additional premium to be paid in lump sum; 5% charges on additional premium; revised Ground Rent; overheadchargcs;existinggroundrent;interestonexistinggroundrent;additional Ground Rent; interest on additional Ground Rent; damage charges; Penalty; charges for withdrawal of re-entry; and cost of supplementary lease deed. ( 12 ) BESIDES making payment in the manner stated above, each lessee, in terms of the above said offer was also required to furnish two undertakings on a stamp paper, undertaking to execute a supplementary lease deed and a tripartite agreement. ( 13 ) THE petitioners are opposing the above terms, offered by the L and DO, on the ground that the same are highly discriminatory, exorbitant, unreasonable, harsh,illegal and even contrary to the guidelines and the policy issued by the respondents themselves from time to time. The contention of the petitioners in all the writ petitions, in brief, is that there is no justification in asking for payment of additional premium as the same is against the terms and conditions of the lease deed. According to them there is no provision in the lease deed, empowering the lessor or any one acting on his behalf, to demand such an exorbitant, unreasonable, harsh and illegal term (payment of additional premium inlump sum) for the change of user. They also dispute the crucial date for calculation of conversion charges/ additional premium. The petitioners are also assailing the condition of the execution of a supplementary lease deed and tripartite agreement on the ground that the same completely changes the terms and conditions of the existing lease deed which is not permissible either in law or in equity. The above offer, made by the L anddo,isalsobeingassailedbythepetitionersonthegroundofhostilediscrimination. The petitioners are also assailing the condition of the execution of a supplementary lease deed and tripartite agreement on the ground that the same completely changes the terms and conditions of the existing lease deed which is not permissible either in law or in equity. The above offer, made by the L anddo,isalsobeingassailedbythepetitionersonthegroundofhostilediscrimination. ( 14 ) THOUGH the amendment applications, filed in some of the petitions, have not been formally allowed but the Counsel for both the parties agreed during the course of hearing that they would be addressing the Court on the issues sought to be raised in the applications for amendment and the Court may adjudicate upon such pleas also. Even in such of the petitions in which formal applications for amendment have not been filed, in view of the petitioners therein having been delivered with offers in writing by the respondents on the same lines as has been done to other petitioners, they have also been heard on those issues which in substance are common in all the petitions. We would, therefore, deal with all such issues during the course of this judgment, a course which has been agreed upon to be followed by all the learned Counsel for all the parties. ( 15 ) WE have heard the learned Counsel for the parties at length and have also carefully gone through the documents/material on record, including the written submissions, filed by the learned Counsel for the parties. In the light of the challenges laid and the contentions advanced at the Barwe formulate the following questions which arise for decision in the present writ petitions : (1) Whether the terms, now being offered by the L and DO, in pursuance of the orders/directions of the Court dated the 17th July, 1995, vide letter No. L and DO/l1-9/134 (6)95/396 dated the 19th October, 1995 for regularisation of breaches, withdrawal of re-entry and for according/granting ex-post facto sanction for the construction of multi storeyed commercial buildings on the demised premises in termsofclauses2 (5)and2 (6)oftheleasesareexorbitant,unreasonable, harsh, illegal and contrary to the guidelines and the policy issued by the respondents? (2) What is the scope of judicial review? (2) What is the scope of judicial review? Whether the terms offered by the Government of India, Ministry of Urban Affairs and Employment, Land and Development Office, Nirman Bhawan, New Delhi vide Communication No. L and DO/li-9/134 (6)/95/396 dated the 19th October, 1995 for condoning the breaches of the terms and conditions of the leases are not open to judicial review? (3) Whether the petitioners have been subjected to hostile discrimination by the respondents while giving the offer of 1995 as compared to other lessees?question-1. ( 16 ) AS already stated, for the first time, on behalf of the lessor, the L and DO gave terms and conditions for regularising the breaches temporarily, to withdraw the notice of re-entry and to grant ex-post facto sanction for the construction of multi storeyed commercial buildings on the demised premises in terms of the Clauses 2 (5) and 2 (6) of the leases vide letter dated 24. 9. 1983. The terms and conditions contained in the above said offer were not acceptable to the petitioners and, therefore, no further action could be taken in that direction. However, during the pendency of these writ petitions, the lessor revised its policy on I I. I. 1995 and on the basis of the revised policy and also in pursuance of the orders/directions of this Court dated the 17th July, 1995, offered new terms to the lessees vide letter dated 19. 10. 1995. In the above said offer, made vide letter dated 19. 10. 10. 1995. In the above said offer, made vide letter dated 19. 10. 1995, it was stated that the lessor would consider the question of regularising the breaches temporarily, to withdraw the notice of re-entry and to grant ex-post facto sanction for construction of multi storeyed commercyal buildings on the demised premises in terms of Clauses 2 (5) and 2 (6) of the leases provided the lessees (petitioners) were willing to comply with the following terms and conditions in advance : (A) (i) Payment of additional premium; (ii) Payment of 5% p. a. charges on addnional premium; (B) (i) Payment of revised ground rent; (ii) Payment of overhead charges; (C) (i) Payment of existing ground rent; (ii) Payment of interest on existing ground rent; (D) (i) Payment of additional ground rent; (ii) Payment of interest on additional ground rent; (E) Payment of damage charges; (F) Penalty; (G) Charges for withdrawal of re-entry; (H) Cost of supplementary lease; (I) Withdrawal of writ petitions pending in this Court; (J) Furnishing an undertaking on a non-judicial stamp paper of Rs. 2. 00 agreeing to pay revised ground rent of the original ground rent in terms of Clause (4) of the original lease; (K) Furnishing an undertaking on a non-judicial stamp paper of Rs. 2. 00 agreeing to execute a supplementary lease deed which will provide for, apart from the above and in addition to the existing covenants of the lease to the extent the same are not modified or superseded by these terms, the following : (a) restricting the sale, transfer, mortgage assignment of the building, blocks, flats or any part thereof without the prior permission of the lessor and payment of unearned increase in any of such events; (b) revision of revised ground rent after every span of 10 years. The ground rent so revised however will not exceed 25% of the ground rent prevailing at the time of such revision; and (e) keeping a running strip of land measuring 5291. 55sq. ft. in front and rear of the demised premises free from all encumbrances, structure, construction and surrendering the same to the lessor or his authorised Agent as and when called upon to do so. 55sq. ft. in front and rear of the demised premises free from all encumbrances, structure, construction and surrendering the same to the lessor or his authorised Agent as and when called upon to do so. ( 17 ) ALONGWITH the supplementary lease deed the lessee, in terms of the above said offer, was also required to execute a tripartite agreement so as to facilitate the transfer of the flat/ flats on lease hold rights on prorata basis and the Formation of a co-operative society of the flat owners for smooth running of common amenities. ( 18 ) AFTER hearing the learned Counsel for the parties and also after taking into consideration the documents/material on record we feel that the petitioners are not seriously opposing the claim of the payment of existing ground rent together with interest mentioned at c above; payment of additional ground rent and interest claimed thereon mentioned at d above; damages for excess coverage mentioned at e above; cost of preparation of lease deed mentioned at h above and the condition for the withdrawal of the writ petitions, pending in this Court mentioned at i above which according to us also, in the given facts and circumstances cannot be said to be unreasonable or harsh. Afterexcluding the above terms/conditions we shall examine the remaining conditions in the order in which they appear in the above said offer. Payment of Additional Premium ( 19 ) THE contention of the learned Counsel for the petitioners, in so far as the above aspect is concerned, broadly speaking is, that in the instant case the rights and obligations of the parties flow from the perpetual lease deeds, executed between the parties in respect of the plots in question and in the absence of any provision in the lease deeds for levy/recovery of additional premium/conversion charges, no additional premium/conversion charge, for the change of the user of the land/plots) in question, is leviable/recoverable from the petitioners either by the lessor or by the Landdoonhisbehalf. ltwasalso submitted by some of the learned Counsel for the petitioners that the leases are Government grants within the meaning of Government Grants Act, 1995 1895 and in terms of the provisions of Section 3 thereof the grant of property by the Government par takes the nature of law as the above provisions over-rule even legal provisions which are contrary to the tenor of the document. It was further submitted by them that it is contrary to the provisions of law and the terms of the perpetual lease deeds to demand charges for the change of the user of the plots in question while granting written consent for the change of user in terms of the conditions of the leases because that would amount to changing the very basis of the character of the perpetual leases. The learned Counsel for the petitioners, in support of their above contention, have placed reliance on a decision of the Supreme Court in the case of Express Newspapers Pvt. Ltd. v. Union of India, ( AIR 1986 SC 872 ). It was also submitted by some of the learned Counsel for the petitioners that in view of the fact that the petitioners had obtained sanction of building plans for the construction on the plots in question from the concerned local authority (NDMC), no separate sanction was required from the lessor or from the L and DO on his behalf. ( 20 ) THE learned Counsel for the respondents, on the other hand, submitted that in all these cases the plots of Nazul Lands were given on lease hold rights to the petitioners not for commercial purposes or for the purpose of erecting multi storeyed buildings thereon and since the petitioners have unilaterally converted the land use without even an application for conversion by raising multi storeyed flats thereon they are liable to pay conversion charges/additional premium. It was also contended by him that the sanction of the plans by the NDMC or by any other authority has no bearing on the lease deeds because in terms of the conditions of the lease deeds it was obligatory on the part of the petitioners to have obtained previous consent in writing of the lessor. He referred to Clauses 2 (5) and 2 (6) of the lease deeds in question and submitted that in terms of the above clauses there is a specific prohibition providing that the lessee will not without the previous consent in writing of the Chief Commissioner of Delhi or duly authorised officer erect or suffer to be erected on any part of the demised premises, any build ing other than and except the buildings erected thereon at the date of the execution of the deed. The learned Counsel for the respondents has placed reliance on decisions in cases Union of India and Ors. v. Den Raj Gupta and Ors. , [42 (1990) DLT 566] and Smt. Dayawanti Punj v. NDMC, (AIR 1982 Delhi 532 ). ( 21 ) AS already stated, it is not in dispute that in all these cases a perpetual lease deed has been executed by the then Secretary of State for India in Council through the Chief Commissioner of Delhi in favour of the auction purchasers in whose shoes the present petitioners have ultimately stepped into. It is also not in doubt that the petitioners cannot have better claims or rights than what were being enjoyed/ available to their predecessors-in-interest. The case of the petitioners, in so far as the above aspect is concerned, mainly hinges upon the true meaning intent and scope of Clause 2, Sub-clauses (5) (6) and (11) and Clause 3, of the lease deeds which read as under: " (5) The lessee will not without the previous consent in writing of the Chief Commissioner of Delhi or duly authorised officer as aforesaid erect or suffer to be erected on any part of the said demised premises any buildings other than and except the buildings erected thereon at the date of these presents". " (6) The lessee will not without such consent as aforesaid carry on or permit to be carried on the said premises any trade or business whatsoever or use the same or permit the same to be used for any purpose other than that of a residence or do or suffer to be done thereon any act or thing whatsoever which in the opinion of the Chief Commissioner of Delhi may be an annoyance or disturbance to the Secretary of State or his tenants in the New Capital of Delhi". " (II) The lessee will upon every assignment, transferor sub-lease of the said premises hereby demised or any part thereof and within one calender month thereafter deliver a copy of the deed of assignment, transfer or sub-lease to the lessor or the Chief Commissioner of Delhi, and all such assignees, transferees and sub-lessees shall be bound by all the covenants and conditions herein contained and be answerable in all respects therefor. Provided always that the lessee shall not assign, transfer or sub-lease a part only of the said premises hereby demised without the previous approval in writing of the Chief Commissioner of Delhi". "3. If the yearly rent hereby reserved or any part thereof shall at any time be in arrear and unpaid for one calender month next after any of the said days where on the same shall have become due, whether the same shall have been demanded or not or if there shall have been in the opinion of the lessor or the Chief Commissioner of Delhi whose decision shall be final, any breach by the lessee or by any person claiming through or under him of any of the covenants or conditions hereinbefore contained and on his part to be observed or performed then and in any such case it shall be lawful for the lessor or any person or persons duly authorised by him notwithstanding the waiver of any previous cause or right of re-entry upon any part of the premises hereby demised or of the buildings thereon in the name of the whole to re-enter and thereupon this demise and everything herein contained shall cease and determine and the lessee shall not been titled to any compensation whatsoever nor to the return of any premium paid by him". ( 22 ) ON a combined reading of Sub-clauses (5) and (6) of Clause 2 of the lease deeds it is apparent that the lessee cannot erect or suffer to be erected on any part of the demised premises, any building other than and except the building erected thereon at the time of the execution of the lease deed without the previous consent in writing of the Chief Commissioner of Delhi or duly authorised officer and the demised premises cannot be used for purposes other than that of a residence without such consent. The question of questions, therefore, is as to whether while giving such a consent/ permission/sanction, in terms of the above said provisions of the lease deed, the lessor or a duly authorised officer on his behalf, can ask the lessee to pay any conversion charge/additional premium for the change of user of the plot in question from residential to multi storeyed commercial. The above question came up for consideration before this Court in case Smt. Kamla Bakshi and Others v. Union of India and Another, (AIR 1987 Delhi 180) and it was held that after coming into force of the statutory Master Plan the terms of the lease deed regarding user automatically stood modified from contractual residential purposes to statutory commercial purposes inview of Section 14of the Delhi Development Act, 1957which prohibited the use of any land or building for purposes other than that contemplated by the Master Plan or the Zonal Plan. It was further held in the above said case that the fact that the lease related to Government land was immaterial as the Act was binding on the Government in the absence of any provision either expressly or by necessary implication exempting the State and in view of the statutory conversion of the term of the lease regarding the user of the land, there was no question of the lessee seeking any permission of the lessor Government for the conversion of the land from residential to commercial and that there was also no question of payment of any conversion charges by the lessee to the lessor Government and in the case of statutory conversion there was no scope for insisting upon receipt of conversion charges under a contract by the lessor. Agreeing with the above view taken in the case of Smt, Kamla Bakshi (supra), a Division Bench of this Court in case Dev Raj Gupta and Others v. Union of India and Others, [39 (1989) DLT 298] held that the terms of the contract must yield to statutory provisions enacted subsequently. "the Division Bench in the above said case of Dev Raj Gupta has observed that when the law provides that the building or property will be only for commercial purpose, there can be no agreement between the parties which would require the building to be used for residential purpose as such an agreement would be contrary to law and that the lease had been granted by the Government and the Government had enacted the Delhi Development Act, 1957 and the Master Plan according to which the use of the land has been changed from residential to commercial purpose. The Division Bench in the above said case further held that for theaforesaid reasons misuse charges on account of the property being used for commercial purpose, instead of residential purpose cannot be charged by the respondents (lessor) Against the above decision of the Division Bench of this Court in Dev Raj Gupta s case. Union of India and others filed an appeal in the Supreme Court and the Supreme Court in the above said appeal entitled Union of India and Others v. Dev Raj Gupta and Others, [42 (1990) DLT 566] held : "the High Court is further not right in holding that there was an automatic or a statutory conversion of the user of the land because in the Master Plan the land in question fell in the area reserved for commercial use. The High Court failed to appreciate that the change of user of the land permitted by the Plan was only enabling in nature. If lifted the restriction which was otherwise there for using the land for commercial purpose. The land has to be used as per the agreement between the contracting parties, and no change of the user can be made contrary to the agreement even if the plan permits such user. The plan helps the parties to change the use, if the parties mutually agree to do so. It does not permit the occupant to change the user unilaterally. It is not, therefore, correct to say that no permission of the landlord was needed to change the user of the land". (Emphasis supplied) ( 23 ) IN view of the above decision of the Apex Court, the find ings of the learned Single Judge of this Court in Smt. Kamla Bakshi s case (supra) to the effect that with the coming into force of the raster Plan there is an automatic change of user and no permission and no payment of conversion charges is required, stand over ruled. ( 24 ) IN case Mrs. ( 24 ) IN case Mrs. Dayawanti Punj and Others v. NDMC and Others, (AIR 1982 Delhi 534) which related to 9, Tolstoy Marg, a similarly situated plot, given on lease vide lease deed dated the 19th March, 1991, executed between the Secretary of State for India in Council, the lessor and the lessee, one of the questions for consideration before the Division Bench of this Court was that on what terms the lessor should give his consent to the conversion of user of his land from residential to commercial . In that case the lessor did not give any terms. During the hearing of the petition the Court directed the lessor to quote his terms to the petitioners on which he (lessor) would allow his land to be used for the erection of a multi storeyed commercial building. In compliance with the orders of the Court the terms were given by the lessor vide letter dated 16. 3. 1982 which amongst others included the following items: ( 25 ) THIS Court, in the above mentioned case of Smt. Dayawanti Punj, while not agreeing with the land value of Rs. l,500. 00 per sq. yard, being adopted, as basis for the purpose of calculating the rates for conversion, held : "we see no justification for adopting the basis of the land value of Rs. l,500. 00 per sq. yard which is the basis of the Government s demand. Our conclusion is that 1970 is "that point of time", to use an expression of the Government policy dated 21st June, 1979, on the basis of which market value of the land should be ascertained for the purposes of giving permission for permanent change of purpose". ( 26 ) THUS, the Division Bench of this Court in Smt. Dayawanti s case (supra) though did not agree with the basis of the land value for calculating the demand of additional premium but it cannot be denied that it gave its stamp of approval on the lessors right and the liability of the lessee to pay conversion charges (additional premium) for the change of the user of the plot from residential to commercial. ( 27 ) BESIDES the legal aspect, as explained above, from a perusal of the record it is apparent that the petitioners themselves had never disputed their liability to pay the commercialisation charges/conversion charges for the change in the user of the plot and in the initial stages had themselves requested the L and DO to intimate them the necessary commercialisation charges to be paid by them for the change in use of the land from residential to commercial . One such communication from Sh. Sushil Ansal of Ansal and Saigal Properties Pvt. Ltd. , addressed to the L and DO dated the 28th September, 1970 relating to Plot No. 19, Curzon Road [ (CWP 1233/ 72)- M/s. Ansal and Saigal Properties (P) Ltd. and Anothers v. L and DO and Others] reads as under: "xxxxxxxxxxxxxxxxxxxxxxxxxxxx We want a certificate in the form enclosed from your end certifying that commercial building can be permitted to be constructed on this plot and necessary commercialisation charges shall have to be paid by us for change in use of this plot. xxxxxxxxxxxxxxxxxxxxxxxxxxxx" ( 28 ) TO the above mentioned communication the Land DO gave a reply vide letter dated 3. 10. 1970 staling therein : "with referenceto your letter No. l9cr/sk/l/430/70 dated 28/30. 9. 1970,on the above subject, I am to confirm that the multi-storeyed commercial building can be constructed on the plot under reference. The conversion charges for the change of use from residential to commercial shall have to be paid by you which shall be intimated to you in due course of time". ( 29 ) THE sanction of the building plans by the New Delhi Municipal Committee (NDMC) also has no bearing in so far as the above aspect is concerned because the sanction letter issued by the NDMC clearly stated that "plans under the terms of the lease deed may please be got approved by the Land and Development Officer separately" and none of the petitioners ever disputed the above contention of the authorities of the NDMC. ( 30 ) SOME of the learned Counsel for the petitioners, during the arguments, submitted that the leases; like the present ones, are contracts and grants under the Government Grants Act which are binding in nature on both the parties i. e. the lessors and the lessees and the terms of the leases cannot be changed by the lessor unilaterally to the disadvantage of the lessees. In our opinion, in the facts and circumstances of the present cases, the above submission of the learned Counsel for the petitioners is devoid of substance because of the fact that the leases inquestion, as initially granted by the lessor in favour of the lessees were purely for residential purposes. The petitioners have unilaterally changed the user of the land from residential to commercial by constructing multi storeyed flats thereon. The above contention of the learned Counsel for the petitioners decidedly would have had some substance had the user of the land not been changed unilaterally by the petitioners from residential to commercial and would have been allowed to continue as it was at the time of the execution of the leases in question. Here the boot is on the other leg. The moment the petitioners unilaterally changed the user of the land, the above ground, as taken by some of the learned Counsel for the petitioners, can no longer be available to them. As a matter of fact it was open for the lessor to have taken further action for the breach of the conditions of the leases in terms of the lease which the lessor has taken and for which there can be no legitimate grievance to the petitioners. ( 31 ) IN our opinion, the decision of the Supreme Court in case Express News Papers (supra) in no way helps the cause of the petitioners in so far as the above aspect is concerned because in the above said case the Supreme Court mainly clarified the overlapping powers under different enactments. In the above said case, the building constructed after permission/sanction from the Delhi Development Authority was tried to be demolished under the provisions of the Delhi Municipal Corporation Act. In the above said case, the building constructed after permission/sanction from the Delhi Development Authority was tried to be demolished under the provisions of the Delhi Municipal Corporation Act. The overriding powers of Delhi Development Act have been recognised and it has been held that the Municipal Corporation of Delhi had no power to issue a demolition notice once permission was accorded to by the Delhi Development Authority in accordance with the provisions of the Master Plain. ( 32 ) IN view of the position explained above it is apparent that while granting permission for the change of user of the land (plot) in question from residential to commercial, the lessor/landdo is fully justified in demandingadditionalpremium/ conversion charges. However, there can be no denial of this fact that such a demand on account of additional premium or conversion charges has not to be arbitrary, exorbitant but must be based on some reasonable criteria. ( 33 ) FOR arriving at the conclusion as to whether the demand being made on account of additional premium/conversion charges is reasonable or not we have to examine as to what ought to be the basis for such a demand. For answering the above question we have to revert back to the decision of this Court in the above mentioned case of Smt. Dayawanti Pun ). In the above mentioned case the lessor/ Landdo on account of conversion charges had raised a demand of additional premium of Rs. 26,79,029. 00 , calculated @ Rs. l,500. 00 per sq. yard. The petitioners in that case of Smt. Dayawanti Punj disputed that above calculation given by the Landdo and their stand was that they were not liable to pay such a high rate of Rs. l,500. 00 per sq. yard and that they were entitled to permission at the market value of the land prevalentin 1963 when they made the firstapplication on 19. 3. 1963 when therate of the land in that area was only Rs. 300. 00 persq. yard. Thus the question which is important and has lot of significance for deciding the abovefactor is what is the right point of time which should be considered as the basis for grant of permission because undoubtedly time factor is of utmost importance in deciding the above issue. 300. 00 persq. yard. Thus the question which is important and has lot of significance for deciding the abovefactor is what is the right point of time which should be considered as the basis for grant of permission because undoubtedly time factor is of utmost importance in deciding the above issue. This very question came up for consideration before the Supreme Court in case Union of India and Others v. Dev Raj Gupta and Others, (42 (199) DLT 566) and the Supreme Court in the above said case had held that the additional premium has to be calculated on the basis of the rates which were prevalent on the date the application for the change of user was made. In this connection another aspect requiring consideration is as to what constitutes an application for permission to convert the user of the land. This aspect too stands decided by the Supreme Court in the above said case of Dev Raj Gupta wherein their Lordships of the Supreme Court have observed that it is not necessary that such an application has to be in a prescribed form and in the absence of a prescribed form the least that is expected in an application for the aforesaid purpose "is a request by all the lessees to permit the change of the user of the land showing readinees and willingness to abide by the terms and conditions for such conversion of the user". ( 34 ) SOME of the petitioners in the present batch are those who till date have not applied for conversion (change of user) and in terms of the above decision of the Supreme Court if they are made to apply for change of user to the Landdo today they would have to pay the conversion charges/ additional premium on the basis of the rates of land which are prevalent today which may be too harsh and may not be in consonance with the principles of equity, fair play and natural justice because these petitioners, though not formally applied, but changed the user of the land from residential to commercial alongwith other petitioners who have submitted an application requesting for change of user and expressing readiness and willingness to abide by the terms and conditions for such conversion of the user. The learned Counsel for the respondents, during the course of arguments, submitted that realising this difficulty the Government of India, Ministry of Urban Development (Lands Division) vide their letter No. J-20011 /2/90-LD dated the 11th January, 1995, while issuing guidelines/instructions for the levy of conversion charges have dealt with the above aspect and have clarified that for calculating the conversion charges/additional premium the crucial date shall be as follows : (A) The date of receipt of application (complete in all respects) for conversion accompanied by the requisite documents and the earnest money, where applicable, will be the crucial date for determining the land rates applicable for calculation of conversion charges; (b) In cases where no application for conversion has been made or where such application is made after sanction of the building plan, date of sanction of such plan by the local body will be the crucial date; and (c) In cases where application has neither been made nor construction executed in accordance with the originally sanctioned plan but is executed as per the revalidated plan, the date of revalidation of such plan will be the crucial date. ( 35 ) THE above policy of the Government of India in so far as the same relates to crucial date in our opinion appears to be just and reasonable and no fault can be found with the same because the same takes care of the petitioners who have already submitted applications and also of those petitioners who have not submitted any application requesting for permission for the change in the user of the land till date. ( 36 ) THE above policy, formulated by the Government of India, also contains clarification with regard to the applications to be submitted by the lessees for conversion and the said clarification reads as under: "applications/requests can be signed either by lessee himself or by an authorised person holding genera! power of attorney of the lessee for this purpose. When there are more than one lessees/gpa holders, the application can be signed by any of the lessees/gpa holders. However, in such cases before communication of the terms, a no objection certificate on non-judicial stamp paper of appropriate value for granting permission for development should be obtained by the lessee from the co-lessee/gpa holders who have not signed the original application". However, in such cases before communication of the terms, a no objection certificate on non-judicial stamp paper of appropriate value for granting permission for development should be obtained by the lessee from the co-lessee/gpa holders who have not signed the original application". "considering the fact that in some cases unregistered GPAs were furnished and registration of GPA is not compulsory, production of registered GPA will not be insisted upon in old cases". ( 37 ) IN our opinion, in view of the decision of the Supreme Court in Dev Raj Gupta s case (supra) the above said clarification was also necessary and as a matter of fact the Government of India, as a result of the above said clarification, have given a concession to the lessees to the effect that the applications/requests need not necessarily be signed by all the lessees and can be signed either by lessee himself or by an authorised person holding General Power of Attorney of the lessee and that the General Power of Attorney may be a registered documents or may not be a registered document. ( 38 ) AS a result of above discussion, in our opinion, while granting permission, for the change of the user, the lessor or the duly authorised agent of the lessor such as Landdo, is fully justified in demanding additional premium/conversion charges and the additional premium/conversation charges, for the conversion of the user of the land will be determined with reference to the land rates [as notified by the Government (Ministry of Urban Development) from time to time] applicable on the crucial date as per the FAR assigned to the plot prevailing on the crucial date. In case where the land rates are linked to the prescribed FAR, the same will be increased or reduced, as the case may be, proportionately with reference to the actual FAR applicable on the plot as on the crucial date but in cases where the land rates have been prescribed as per existing FAR, while calculating additional premium/ conversion charges the land rates need not be proportionately increased or reduced. ( 39 ) PAYMENT of 5% p. a. Charge on Additional Premium: It was submitted by the learned Counsel for the respondents that the above payment, demanded by the lessor, is really in the nature of a charge for unilateral conversion of user limited to the period when the unilateral conversion was effected till the crucial date. In our opinion, when the additional premium is being demanded on behalf of the lessor for the unilateral conversion of the land from residential to multi-storeyed commercial and the basis for calculating the additional premium is the land rates prevailing on the crucial date keeping in view the FAR achieved by the petitioners, there appears to be no justification in the above demand of the respondents which in the given facts and circumstances, already explained, cannot be sustained. ( 40 ) PAYMENT of Revised Ground Rent: The petitioners assail the demand of the revised ground rent on the ground that in terms of the leases the same is not tenable. Their contention is that the ground rent payable by them can be revised only in terms of the lease and not otherwise. According to them any revision in the rates of the ground rent contrary to the terms of the lease is not sustainable in the eyes of law. The learned Counsel for the petitioners, while making the above submission, referred to the contents of the Clause 4 of the leases, dealing with the enhancement of ground rent and submitted that enhancement/revision in the ground rent, if any, during the currency of ihe lease, has to be in terms of and in conformity with the provision of the lease. The learned Counsel for the respondents, on the other hand, submitted that in view of the unilateral conversion of the land use from residential to Commercial-multi- storeyed Group Housing, the respondents are entitled to revise the ground rent also. ( 41 ) IN our opinion, the objection taken by the petitioners to the proposed revision of ground rent in terms of policy dated 11. 1. 1995 appears to be without substance. There can be no denial of this fact that any revision in rates of the ground rent has to be in accordance with the terms of the lease. However, the terms of the lease cannot be interpreted in isolation. 1. 1995 appears to be without substance. There can be no denial of this fact that any revision in rates of the ground rent has to be in accordance with the terms of the lease. However, the terms of the lease cannot be interpreted in isolation. The leases in question are for residential purpose and in terms of the lease the land without the permission of the lessor cannot be used for any purpose or trade other than residential. Had the user of the land not been changed, the above contention, as advanced by the learned Counsel for the petitioners, decidedly would have had substance. In the present cases the petitioners have unilaterally changed the user of the land from residential to commercial and as per settled practice whenever any property is re-developed or extensively exploited by changing the user thereof, as in the present cases, revision in the rates of ground rent is fully justified. The proposed revision in the rates of ground rent is based on the change of user and premium including additional premium to be charged from the lessees and if the proposed revised ground rent is viewed in above context, it cannot be said to be harsh or exorbitant or unreasonable. ( 42 ) PAYMENT of Over Head Charges: Respondents have claimed payment on account of overhead charges. No satisfactory basis for the above said demand has been given in the policy of the lessor dated the 11th January, 1995. Even the Counsel for the respondents, during the arguments, could not satisfy us about the justification of the above demand and, therefore, in our opinion the same cannot be sustained. ( 43 ) PENALTY: The respondents claimed payment on account of penalty also. The above charges, claimed by the respondents, in the nature of penalty, is regarding excess coverage beyond the sanctioned plans. In our opinion, in case there is excess coverage beyond the sanctioned plan, in that event no fault can be found with the above said demand of the respondents which the respondents can claim in accordance with their policy for levying such charge/penalty on such excess coverage. However, such a charge/penalty has to be with reference to the date of the alleged construction resulting in excess coverage. ( 44 ) CHARGES for Withdrawal of Reentry: The respondents have claimed charges for withdrawal of re-entry @ Rs. 3,000. 00 per annum. However, such a charge/penalty has to be with reference to the date of the alleged construction resulting in excess coverage. ( 44 ) CHARGES for Withdrawal of Reentry: The respondents have claimed charges for withdrawal of re-entry @ Rs. 3,000. 00 per annum. It is stated that in cases where re-entry orders have been made by the lessor for he violation of the lease terms, such re-entry orders will be revoked only after the recovery of revocation charges, calculated @ Rs. 100. 00 per day subject to a maximum of Rs. 3,000. 00 per annum from the date of re-entry to the date of revocation thereof. As already stated, the lessor so far has not effected the right of re-entry in any of the cases. In some of the cases the Landdo in his capacity as duly authorised officer, on behalf of the lessor has issued notice (s) asking the petitioners to show cause or expressing the intention of the lessor to effect the right of re-entry for the alleged violation of the conditions of the lease. In the absence of any order for effecting the right of re-entry or any re-entry having been effected, there appears to be hardly any justification for the above said demand. Moreover, the respondents failed to produce any document/material for our perusal justifying the above demand. In view of the above discussion, there appears to be no justification in the above demand of the respondents which too in our opinion cannot be sustained. ( 45 ) EXECUTION of Supplementary Lease Deed: In terms of the offer, the lessee is required to furnish an undertaking on a non-judicial stamp paper of Rs. 2. 00 agreeing to execute a supplementary lease deed. It was submitted by the learned Counsel for he petitioners that the salient terms of the supplementary lease deed, proposed to be executed, seek to bring about fundamental and sweeping charges in the perpetual lease deed already in existence and the same, therefore, cannot be permitted on this ground alone. It was also submitted by them that the terms of the proposed supplementary lease deed arecontrary to the provisions of the Government Grants Act and the lessees, in existence which do not envisage or stipulate that prior to giving permission for change of user, such drastic and sweeping changes can be brought about in the lessees. It was also submitted by them that the terms of the proposed supplementary lease deed arecontrary to the provisions of the Government Grants Act and the lessees, in existence which do not envisage or stipulate that prior to giving permission for change of user, such drastic and sweeping changes can be brought about in the lessees. It was also submitted by them that even in the blue-Book , issued by the Landdo, containing the policy regarding change of user, there is no mention about the execution of such a supplementary lease deed. The learned Counsel for the respondents, on the other hand, submitted that the proposed supplementary lease deed is intended to provide for- (i) Revision of ground rent after every ten years; (ii) Payment of unearned increases; and (iii) Restriction on transfer i. e. requiring permission of the lessor to every transfer or a part of the demised premises. The main objection of the petitioners, in so far as the execution of the supplementary lease deed is concerned, is also to the above mentioned three conditions. We will, therefore, examine each one of them so as to satisfy ourselves as to whether the terms and conditions sought to be introduced in the supplementary lease deed by the respondents are reasonable. ( 46 ) THE first condition sought to be introduced in the supplementary lease deed relates to the revision of the ground rent after every ten years. It was submitted by the learned Counsel for the petitioners that any revision in the ground rent has to be in accordance with the terms and conditions of the lease and any revision contrary to the terms and conditions of the lease would not be justifiable. In terms of the provisions contained in Clause4 of the lease, ground rent can be revised after every thirty years but it may be double or more. Under the new terms it cannot be more than 25% of the ground rent and thus even over a period of thirty yeas it is not likely to exceed the figure which may be arrived at in terms of the existing lease. In view of the position explained above, the petitioners, as a matter of fact, are not being put to any disadvantageous position as a consequence of the introduction of the above clause. In view of the position explained above, the petitioners, as a matter of fact, are not being put to any disadvantageous position as a consequence of the introduction of the above clause. In any case, the annual increase, if calculated on the basis of the new terms, works out to only 2. 5% which is really nothing considering the rate of inflation and escalation in property prices in the metropolis of Delhi. Moreover, as per the existing arrangement, the ground rent is to be revised every after thirty years. For any change in the above terms, the execution of a supplementary lease deed containing this additional clause is absolutely essential. Thus, view from all angles it cannot be sated that the above condition, sought to be introduced in the supplementary lease deed, is in reality unreasonable or harsh. ( 47 ) THE second condition, sought to be introduced as a consequence of the execution of the proposed supplementary lease deed, is with regard to the payment of unearned increase . It was submitted by the learned Counsel for the petitioners that in the lease deeds, in existence, there is no such clause authorising the lessor to charge any amount on account of unearned increase . It was submitted by them that in the absence of any such clause in the original lease deed no such clause can now be added providing for payment of unearned increase in the event of transfer of the demised plot or any portion thereof. The plots in question were leased out long back for residential purpose. At that time the concept of multi storeyed flats/ Group Housing was unknown. The petitioners have changed the user of the land in question from residential to commercial - multi storeyed building/flats/group Housing and they now seek to transfer the property in favour of several other persons in contravention of the provisions of Clause 2 (11) of the lease deeds. The petitioners are not the original lessees and it cannot be disputed that they are earning or likely to earn huge profits on such transfers. We fail to understand why a part of this should not be made over to the exchequer. The petitioners are not the original lessees and it cannot be disputed that they are earning or likely to earn huge profits on such transfers. We fail to understand why a part of this should not be made over to the exchequer. This is all the more necessary because in the first place as a result of this activity of the petitioners (construction of multi storeyed flats) there is bound to be an over all increase in the obligations of the State such as arrangements for conservancy, sanitation, public transport etc. on which the Exchequer is bound to incur a lot of additional expenditure. Secondly, this would act as a check on the lessee to prohibit him from making unconscionable profits to the detriment of public interest. In such like transactions relating to transfer of property in the Union-territory of Delhi, payment of unearned increase is the norm rather than an exceptions. The petitioners have not made out any case for exceptional treatment. On the contrary they want to be treated at par with lessee of 6, Tilak Marg, New Delhi who too was required to pay unearned increase. Thus in our opinion the above condition too, in view of the above discussion, cannot be stated to be unreasonable or harsh. ( 48 ) THE third condition, sought to be introduced, as a result of the execution of the supplementary lease deed, is regarding restriction on transfer i. e. requiring the permission of the lessor to every transfer or a part of the demised premises. The above restriction again too emanates from the Clause 2 (11) of the lease deed. If a clause in the principal lease deed prohibits the transfer of a part of the demised premises it stands to reason that the supplementary lease deed also incorporates that clause. Moreover, the petitioners, as a matter of act should not have any serious objection to the above requirement because as already stated the propriety rights in respect of the property in question vest in the lessor. The petitioners are only lessees and the lessor in whom the propriety right vests in all fairness has every right to impose such a condition so as to enable him to know in advance as to with whom he is required to deal with in respect of the property leased out by him. The petitioners are only lessees and the lessor in whom the propriety right vests in all fairness has every right to impose such a condition so as to enable him to know in advance as to with whom he is required to deal with in respect of the property leased out by him. ( 49 ) IN view of the position explained above, no fault can be found with the above condition of the offer made by the respondents to the petitioners. The same cannot be stated to be harsh or unreasonable. In our opinion, in the changed circumstances, in which the petitioners have landed themselves by unilaterally converting the user of the land from residential to commercial - multi storeyed flats, it has become necessary that a supplementary lease deed on the lines indicated in the offer of the respondents, is executed between the parties. ( 50 ) EXECUTION of a Tripartite Agreement: The new terms, based on the guidelines/policy dated the 11th January, 1995, also speak of the execution of a tripartite agreement so as to facilitate the transfer of flat/flats or lease hold rights on prorata basis on the formation of a cooperative society of the flat owners, for smooth functioning of common amenities and proper maintenance of common places. The proposed tripartite agreement is supposed to be between three parties i. e. the lessor, the lessee and the co-operative society of flat owners/flat owners as the case may be. Third party i. e. the cooperative society of the flat owners/flat owners who are supposed to be a party to the above said tripartite agreement, are not before us and as such we do not think it proper and expedient to pass any orders which may bind a party which is not before us. Even otherwise the dispute in the present petitions is regarding the conversion of the land use from residential to commercial - multi storeyed flats and presently the parties are concerned with the regularisation of the change of the land use. Once the same is regularised the subsequent events which have taken place or may take place after the regularisation of the change of user can be taken care of by separate agreement (s) that may be entered into between the lessor and the person (s) occupying such flats on such terms and conditions as may be settled between them. Once the same is regularised the subsequent events which have taken place or may take place after the regularisation of the change of user can be taken care of by separate agreement (s) that may be entered into between the lessor and the person (s) occupying such flats on such terms and conditions as may be settled between them. Thus, we leave this question of the execution of a tripartite agreement open, to be settled by the parties later on amongst themselves.