Union of India Vs. Shiv Dayal Soin & Sons Pvt. Ltd. & Ors  Insc
118 (26 February 2003)
& Ashok Bhan Khare, Cji
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').
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:
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
"(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.
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.
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 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.
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.
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.
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.
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 :
.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.." 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).
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.
the aforesaid reasons we are of the view that respondent no.
after having constructed a house, did not contravene the terms of the lease
merely because he let out the building for non-residential purpose.
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.
the aforesaid reasons, the instant appeal is accordingly dismissed. There shall
be no order as to costs.