JUDGMENT
Mohd. Shamim, J.
(1) The petitioner through the present petition wants quashment of the letter dated March 30,1981 issued by the Deputy Director, Delhi Development Authority, bearing No. F.3(133)78- CS/DDA whereby a sub lease regarding plot No.C-70, Maharani Bagh, New Delhi, in favour of the petitioner was cancelled. She has further prayed that peaceful possession over the said plot be handed over to her.
(2) Facts which led to the filing of the present petition are as under: that the petitioner is the wife of one Prakash Nath. She is working as a lecturer in Indian Penal Code college, Delhi. Plot bearing No. C-70, Maharani Bagh, New Delhi, measuring 800 sq.yards ( hereinafter referred to as the ‘disputed plot’ for the sake of convenience) was allotted to the petitioner vide sub lease deed dated July 5,1973 ( vide Annexure B). The said perpetual sub lease deed was duly registered. The disputed plot was earlier allotted to respondent No.4 and a perpetual sub lease deed in respect thereof was executed in his favour. Subsequently the said sub lease was terminated by the Lt. Governor, Delhi. The said fact was communicated to respondent No.4 through a letter dated May 21,1973 ( vide Annexure D). A copy of the said letter was also sent to the Hony. Secretary, Maharani Bagh Co-operative House Building Society ( hereinafter referred to as the respondent No.3 in order to facilitate the reference) with a request to send a proposal for allotment of the said plot which had fallen vacant to the members who were on waiting list. Shri R.C.Sharma, Executive Officer, conveyed approval of the Lt. Governor, Delhi for the allotment of the plots available to the members who were on the approved list of the respondent No.3 in the order mentioned therein. The disputed plot i.e. C-70, in the said list was allotted to Shri Satnam Shah and plot No. B-41 was allotted in the name of the petitioner ( vide Annexure E). Subsequently the disputed plot was allotted in the name of the petitioner which she accepted under protest ( vide Annexure E). A perpetual sub lease deed in respect of the disputed plot was executed in favour of the petitioner. The petitioner also paid a sum of Rs. 30,000.00 by way of premium for the execution of the sub lease deed in her favour. Respondent No.4 is thus in wrongful and unauthorised possession over the above said plot. The possession over the above said plot has so far not been handed over to the petitioner despite several letters written to the respondents in connection therewith. The petitioner was informed vide letters dated June 13,1974 and November 6,1974 from the office of the Lt. Governor, Delhi and Delhi Development Authority (DDA) that the original allottee i.e. respondent No.4 had moved the High Court and the matter was as such sub judice before the said Court. Hence the posession could not be delivered. The petitioner later on came to know through the letter dated March 30,1981 ( vide Annexure A) that the sub lease deed in respect of the disputed plot had been restored in favour of the respondent No.4 and the sub lease deed executed in her favour had been cancelled, though the matter was still sub judice. The action of the respondent No.2 in cancelling the perpetual sub lease in respect of the disputed plot in favour of the petitioner is illegal, void and ultra vires the provisions of the Constitution of India inasmuch as the petitioner was never given any hearing before the cancellation of the said perpetual sub lease in her favour. Thus the cancellation of the said lease in her favour was in utter violation of the principles of natural justice. A lease once cancelled, which existed in favour of respondent No.4 in the instant case, could not be revived and restored.
(3) Respondent No.4 who is the main opponent has put in contest, inter alia, on the following grounds: that he is the original allottee of the disputed plot and a perpetual sub lease deed was executed in his favour on July 17,1965. He has since then been in possession over the said plot. He raised construction thereon consisting of two garages, a bath and W.C. on the ground floor and two rooms, bath and a verandah on the first floor alongwith a staircase. He also got constructed a boundary wall alongwith the main gate on the said plot. The perpetual sub lease deed was wrongly and illegally determined vide letter dated May 21,1973 ( vide Annexure D). The alleged determination of the lease is illegal and mala fide and void ab initio. He challenged the said illegal termination of his sub lease through a writ petition, being C.W.P. No. 774/74, Dharam Chand v. Delhi Administration and others. The said writ petition was admitted and his dispossession was stayed. The respondent made representations to the authorities before the filing of the said writ petition and even during the course of the pendency of the writ petition. On subsequent verification by the Lt. Governor, Delhi, the termination order was revoked and the sub lease was restored vide letter dated March 30,1981 in respect of the disputed plot in his favour. He was, however, ordered to deposit a sum of Rs. 48,704.00 on account of the restoration charges and by way of penalty for delayed construction. The respondent No.4 deposited the said amount under protest and without prejudice to his rights. Immediately on the above said cancellation of the sub lease in favour of the respondent No.4 the disputed plot was allotted to one Satnam Shah, vide letter dated May 22,1973 ( vide Annexure E). It is also manifest from the said letter that plot bearing No. B-41 was allotted in favour of the petitioner. The petitioner has not disclosed as to how the sub lease deed in respect of the disputed plot was executed in her favour in the above circumstances. The execution of the said sub lease deed in favour of the petitioner is wholly illegal, invalid and void.
(4) Shri H.K.Sanghi, father of the petitioner, was a member of the Executive Committee of the respondent No.3. He had also been the Secretary of the respondent No.3 for a number of years. Thus the alleged cancellation of the sub lease in favour of the respondent No.4 in respect of the disputed plot and its subsequent allotment and execution of the sub lease deed in favour of the petitioner were mala fide. The above manipulation appears to have been done at the instance of the father of the petitioner. The grievance of the petitioner is thus patently wrong and misconceived. The consequence of the restoration of the sub lease in respect of the disputed plot in favour of the respondent No.4 is that the allotment, if any, and the consequent execution of the sub lease deed in favour of the petitioner stood automatically determined and cancelled.
(5) Respondent No.2 have opposed the present writ petition on the following grounds: that the petitioner had been making representations to the respondents for allotment of an alternative plot in lieu of the disputed plot. Consequently the petitioner was allotted plot No. 1-1 in lieu of the disputed plot. Thus the petitioner cannot be permitted to have two plots at one and the same time. Hence the petitioner cannot claim possession over the disputed plot unless and until she surrenders the plot No. 1-1 allotted to her. The action, if any, against the petitioner with regard to the cancellation of the allotment was taken not on account of breach of any of the terms and conditions of the lease deed but on account of the fact that the Lt. Governor, after considering all the facts and circumstances had decided to revoke the order of cancellation of allotment in favour of respondent No.4 in respect of the disputed plot.
(6) Respondent No.3 have supported the case of the petitioner through the affidavit sworn by one Shri V.K.Harurre, a member of the Managing Committee of the respondent No.3. He has stated as under: that the respondent No.3 had drawn a list of persons who were on the waiting list. The name of the petition was at No.3 in the said list. In view of the cancellation of the five sub leases the respondent No.3 recommended in May 1973 that in view of the availability of plots occasioned on account of the cancellation of the sub lease, the same should be reelected in order of seniority to the members on the waiting list. Consequently, the disputed plot was allotted in favour of the petitioner. The possession over the said plot could not be handed over to the petitioner as the same was in occupation of the respondent No.4 who was the original allottee of the plot. The respondent No.4 filed a writ petition, being C.W.P. No. 744/74 against the Dda and the respondent No.3 praying for restoration of the sub lease executed in his favour in respect of the disputed plot. The said writ petition was dismissed vide judgment and order dated March 30,1989. The Dda, however, restored the sub lease in favour of the respondent No.4 as is manifest from the communication dated March 30,1981. The lessor had no authority to restore the said sub lease since the cancellation had taken place on account o f non construction of the building. It was in the above circumstances that the respondent No.3 passed a resolution dated August 13,1981 whereby it was decided that conditional allotment of a smaller plot measuring 233 sq.yards be made in favour of the petitioner subject to the outcome of the writ petition. Hence it was in the above circumstances that the plot bearing No. I-1, Maharani Bagh, New Delhi, measuring 233 sq.yards was allotted to the petitioner.
(7) It has been urged for and on behalf of the petitioner by Mr. Mukul Rohatgi, Senior Advocate, that is manifest from the facts canvassed above that once the disputed plot bearing No. C-70,aharani Bagh, New Delhi, was allotted to the petitioner vide lease deed dated July 5,1973; the lease deed could not have been cancelled in respect of the same without giving a hearing to the petitioner. The learned counsel contends that certain rights accrued in favour of the petitioner and as such she could not have been deprived of the same unless a show cause notice was issued to her and she was given a hearing. The lease in respect of the disputed plot in favour of the petitioner was cancelled on March 30,1981 as is evident from the said letter.( vide Annexure ‘A’) addressed to the respondent No.4 with a copy to the petitioner apprising her of the factum of cancellation. The next limb of the argument advanced by the learned counsel for the petitioner is that once the lease deed in respect of the disputed plot in favour of the respondent No.4 was cancelled on account of his failure to complete the construction within the stipulated period of two years as envisaged under Cl.II, sub clause (5), the cancellation could not have been revoked by the Lt. Governor as is clear from Cl.IV(a) of the terms of the lease deed, since the time was the essence of the contract. According to the learned counsel the Lt. Governor did not enjoy the said powers.
(8) Learned counsel for the respondent No.4, Mr. L.R.Gupta, Senior Advocate, on the other hand has contended that the present writ petition is not maintainable since it relates to a contract in between the two parties in the realm of a private law relating to a lease deed, the terms whereof are not governed by a statute. The parties to the contract are simply governed by the terms and conditions enumerated in the sub lease deed dated July 17,1965 and dated July 5,1973 executed in favour of respondent No.4 and the petitioner respectively. Thus the petitioner instead of knocking at the doors of this Court should have filed a suit for specific performance for the enforcement of the said contract in her favour, vide sub lease deed dated July 5,1973. She could also have approached the Lt. Governor for reference of the disputes to arbitration which had arisen between her and the respondent No.3 (vide Clause Viii of the sub lease deed executed in her favour). The argument further proceeds that the Lt.Governor is competent to condone all or any of the breaches on the part of a sub lessee as is fully obvious from Cl.III of the sub lease deed. Thus there is absolutely nothing strange if the Lt. Governor condoned the breach in the instant case on the part of respondent No.4 to complete the construction within a period of two years. He was fully competent to do so and the petitioner should not have any quarrel on the said score.
(9) I have heard the learned counsel for the parties at sufficient length and have very carefully examined their rival contentions and have given my anxious thoughts thereto.
(10) The contention put forward by the learned counsel for the petitioner Mr. Rohatgi, Senior Advocate, is that once the disputed plot was allotted to the petitioner and a sub lease deed was executed in her favour on July 5,1973 ( vide Annexure ‘B’) the same could not have been cancelled without giving a hearing to her as is the case in the instant case. According to the learned counsel the lessor i.e. the Lt. Governor in the present case neither served the petitioner with a show cause notice nor gave her a personal hearing before cancelling the sub lease deed in her favour. The petitioner one fine morning received a copy of the letter dated March 30,1981 from the Delhi Development Authority to her dismay and horror whereby she was informed that the sub lease in respect of the disputed plot in her favour had been cancelled and that of the respondent No.4 in respect of the said plot had been restored ( vide Annexure ‘A’). Once a sub lease deed has been executed in favour of the petitioner, certain rights accrued to her, hence she could not have been deprived of those rights unless she was given an opportunity to show cause against the same. Thus the above action on the part of the Dda, respondent No.2, is unjust, arbitrary and illegal, unconscionable and thus is not sustainable in the eye of law and is liable to be set aside.
(11) The argument of the learned counsel appears to be a convincing one at the first blush but on a deeper scrutiny it is found to be without any merit.
(12) Admittedly the disputed plot was initially allotted to respondent No.4 ( vide sub lease deed dated July 17,1965). It was cancelled by the lessor i.e. the Lt. Governor for his failure to complete the construction within a stipulated period of two years as per the terms and conditions of the lease deed ( vide letter dated May 21,1973). Respondent No.4 on coming to know of the said fact made a representation to different authorities vide his letter dated June 30,1973 for restoration on the ground that the said cancellation was illegal and invalid and without any just and sufficient cause. Thus the respondent No.4 was making all possible efforts to get the lease restored in his favour. Whereas the petitioner on the other hand was trying her level best to secure the possession over the disputed plot. She in connection therewith wrote quite a good number of letters to different authorities, including the Lt. Governor ( vide letter dated July 26,1979, January 3,1981). ( Letters dated October 10,1973, June 13,1974 and November 6,1974 from the Lt. Governor to the Petitioner). According to the letters dated October 10,1973 and June 13,1974 from the office of the Lt. Governor and Delhi Development Authority to the petitioner there is a mention that the matter is under consideration. The petitioner was informed through letter dated November 6,1974 that original allottee had moved the High Court and the case was sub judice. It is crystal clear from above that there were representations from both the sides i.e. from the petitioner to secure the possession over the disputed plot and from the respondent No.4 for restoration of the lease which according to him was wrongly cancelled. The lessor i.e. the Lt. Governor after consideration of the merits of the two cases allowed the representation of the respondent No.4 and countermanded his earlier order with regard to the cancellation of the sub lease dated May 21,1973 and restored the sub lease deed in his favour vide letter dated March 30,1981.
(13) Thus the contention of the learned counsel that the petitioner was not given any opportunity of being heard by the Lt. Governor before passing the impugned order does not hold any water. It is true that the petitioner was not personally heard before passing the said order. However, there is no such provision of law that a personal hearing must be granted before passing every administrative order. The learned counsel also has not shown any such provision of law.
(14) The impugned order against the respondent No.4 was passed not on account of any breach of the terms and conditions of the sub lease deed. Hence the respondents Nos. 1 and 2 were under no obligation to issue a show cause notice to the petitioner. The impugned order was necessitated owing to the restoration of the lease deed in favour of the respondent No.4. In view of the above the petitioner was not entitled to any hearing before the passing of the order in question. The petitioner thus cannot have any quarrel on the said score.
(15) Learned counsel for the petitioner Mr. Rohatgi has vehemently argued that the sub lease deed in the instant case in favour of respondent No.4 was cancelled on account of his failure to complete the construction within the stipulated period of two years as is apparent from the letter dated March 30,1981. The lessor i.e. the Lt. Governor,if it was so, could not have restored the lease as per Cl.IV of the sub lease deed dated July 17,1965. The learned counsel in connection therewith has led me through Clause Iv of the sub lease deed which is in the following words:- “IV.No forfeiture or re-entry shall be effected until the Lessor or the Lessee has served on the Sub-Lessee a notice in writing. (a) specifying the particular breach complained of, and (b) if the breach is capable of remedy, requiring the Sub-Lessee to remedy the breach, and the Sub-Lessee fails within such reasonable time as may be mentioned in the notice to remedy the breach if it is capable of remedy, and in the event of forfeiture or re-entry the Lessor in his discretion or the Lessee, with the prior consent in writing of the Lessor, may relieve against forfeiture on such terms and conditions as the Lessor thinks proper. Nothing in this clause shall apply to forfeiture or re-entry. (a) for breach of covenants and conditions relating to sub-division or amalgamation, erection and completion of building within the time provided and transfer of the residential plot as mentioned in Clause Ii, or (b) in case this Sub-Lease has been obtained by suppression of any fact, mis-statement, mis- representation or fraud.”
(16) The learned counsel on the basis of the relevant provisions alluded to above has urged that in case the lease has been forfeited on account of the failure of the completion of the construction within the period of two years in that eventuality the lessor i.e. the Lt. Governor has got no power to restore the same. This Court feels that the learned counsel has construed amiss Clause Iv of the sub lease deed reproduced above. A close scrutiny of the same reveals that Clause Iv deals with the service of the notice in those discerning few cases where it is proposed to forfeit the lease on account of certain breaches of the terms and conditions of the sub lease deed. In that eventuality a duty has been cast on the shoulders of the lessor to serve the lessee a show cause notice as to why the re-entry should not be effected for the committal of the said breaches. However, in case the said breach of the lease is relating to the sub division or amalgamation, erection and completion of the building within the period provided in that eventuality no show cause notice is required to be served on the sub lessee and the re-entry can be effected straightaway. Thus the contention of the learned counsel that in case of failure of the respondent No.4 to complete the construction within the stipulated period of two years, the said breach cannot be condoned by the lessor and the lessor has got no such power, is without any merit.
(17) A careful perusal of Cl.III of the sub lease deed shows that the lessor enjoys un-limited and un-fettered powers to condone any and every breach committed by the sub lessee and it would be as such neither proper nor legal to clog his powers by putting restraints and limitations thereon. Cl.III deals with the committal of breaches by the sub lessee and the forfeiture of the sub lease on account of the said breaches and violation of the terms of the lease. The proviso to the said clause, on the other hand, deals with the powers of the lessor to condone and waive the said breaches, if any, committed by the sub lessee. To illustrate the above point I am tempted here to cite in extenso the proviso annexed to Cl.III of the sub lease deed. It reads as under:- “PROVIDED that, notwithstanding any thing contained herein to the contrary the Lessor, in his absolute discretion, or the Lessee with the prior consent in writing of the Lessor, may, without prejudice to the right of re-entry as aforesaid, waive or condone, breaches, temporarily or otherwise, on receipt of such amount by the Lessor or by the Lessee on behalf of the Lessor and on such terms and conditions as may be determined by the Lessor and the Lessor or the Lessee whoever may be entitled may also accept the payment of the said sum or sums or the rent which shall be in arrear as aforesaid together with interest at the rate of six per cent per annum. The amounts for waiver or condensation received by the Lessee from the Sub-Lessee shall be paid forthwith by the Lessee to the Lessor subject to such deductions as the Lessor may, in his absolute discretion, allow to be retained by the Lessee.”
(18) It thus can be safely concluded from above that the lessor has got ample powers to condone and/ waive any of the breaches committed by the sub lessee.
(19) Furthermore, admittedly the impugned order with regard to cancellation of the lease deed in respect of the disputed plot in favour of the petitioner, and restoration of the sub lease deed in respect of the disputed plot was passed by the Lt. Governor in his capacity as a lessor. The petitioner, curiously enough, in her writ petition has nowhere challenged the powers of the Lt. Governor to pass the impugned order. Thus it is now too late in the day to urge to the contrary. She will be deemed to have acquiesced in and admitted the said fact.
(20) The next contention raised by the learned counsel for the petitioner is that once the sub lease deed has been cancelled in respect of the disputed plot existing in favour of the respondent No.4 the Lt. Governor could not have restored the said sub lease deed in favour of the respondent No.4 . In case he was inclined to allot a plot of land in favour of respondent No.4 he could have done so by executing a fresh lease in respect of another plot of land. According to the learned counsel it is so because there was nothing left with the Lt. Governor to allot to the respondent No.4 as a sub lease deed in respect of the disputed plot had already been executed in favour of the petitioner ( vide sub lease deed dated July 5,1973). The contention of the learned counsel is without any force and can be brushed aside within an anon without much difficulty. It has already been observed above that the Lt. Governor is competent enough to condone and/or wave any breach committed by the sub lessee. Thus the lessor in his absolute discretion thought it fit and proper to waive the breach committed by the sub lessee in the present case and to restore the sub lease in his favour (vide Annexure ‘A’ dated March 30,1981).
(21) Mr. Rajiv Nayar, learned counsel for respondent No.3, while supporting the case of the petitioner has strenuously argued before this Court that the respondent No.4 filed a writ petition ( vide Cw No. 744/74). The said writ petition came up for hearing before a learned Single Judge of this Court and was dismissed vide judgment and order dated March 30,1989. The learned Single Judge held that the sub lease deed in favour of the respondent No.4 was validly cancelled. Thus the learned counsel contends that in view of the above unequivocal finding against the respondent No.4, the respondent No.4 cannot be allowed to plead that his sub lease deed was wrongly cancelled. The said judgment would operate as res judicata against the respondent No.4. The contention of the learned counsel I feel is devoid of any merit.
(22) It is a well established principle of law that for a judgment and decision in a case to operate as res judicata in a subsequent case the said case must have been between the same parties involving the same issues. It must have been heard and finally decided. To reproduce the exact words of Section 11 of the Code of Civil Procedure, ” No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”
(23) A perusal of the impugned judgment and order dated March 30,1989 reveals that the said judgment and order was passed during the period when the lawyers were on strike as a corollary whereof no lawyer from either side of the two parties appeared before the learned Single Judge. Hence I feel that the said judgment cannot by any stretch of imagination be said to have been passed on merits because the learned Single Judge did not have the opportunity to hear the arguments of the learned counsel for the parties as they were abstaining from the courts. Moreover, the said judgment was appealed against. The appeal came up for hearing before a Division Bench. The learned counsel for respondent No.4 brought it to the notice of the Division Bench that the relief claimed in the writ petition had been granted to the appellant ( respondent No.4) by the Lt. Governor vide his order dated March 27,1981. Hence the writ petition had become infructuous. On the basis of the said statement it was observed ” In view of the fresh order favourable to the appellant passed on March 27,1981 the writ petition has become infructuous and so would be the Letters Patent Appeal. Accordingly the Letters Patent Appeal is dismissed as infructuous.”
(24) It is obvious from above that the judgment and order passed by the learned Single Judge dated March 30,1989 merged with the judgment and order dated November 7,1991 passed by the Division Bench. The writ petition as well as the appeal both were ordered to be dismissed as per the judgment and order passed by the Division Bench dated November 7,1991 as the same had become infructuous on account of the relief granted to the respondent No.4 by the Lt. Governor. Hence now it does not lie in the mouth of the learned counsel for respondent No.3 to contend that the judgment and order passed by the learned Single Judge would operate as res judicata.
(25) It has then been urged for and on behalf of respondent No.4 that admittedly the petitioner in the instant case has been allotted a plot of land measuring 233.71 sq.yards by the respondent No.3, bearing No. I-1, Maharani Bagh Co-operative House Building Society, New Delhi. The petitioner has taken possession over the said plot and she continues to be in possession over the same. Ergo, she cannot be permitted to have two plots from one and the same society in the Union Territory of Delhi. Thus the petitioner is not entitled to any relief as claimed by her in the instant case.
(26) Learned counsel for the petitioner on the contrary has argued that it is true that plot bearing No. I-1, alluded to above, has been allotted to the petitioner. However, the said allotment is conditional and subject to the decision in the present case. Consequently the said allotment would have no bearing on the fate of the present case. I am sorry I am unable to agree with the contention of the learned counsel for the petitioner. A perusal of the several letters written by the petitioner to the Lt. Governor would reveal that the prayer of the petitioner in the said letters is two fold. Vide letter dated July 26,1979 she wanted either the delivery of the possession over the disputed plot and if the same was not possible, in that eventuality, she prayed that an alternative plot be given in place of the said plot. To the same effect is her prayer in the letter dated January 3,1981 addressed to the Lt. Governor. Thus the alternative prayer of the petitioner has been granted inasmuch as she has been allotted a plot of land. Consequently the petitioner should feel contented with the same. She cannot be allowed to fight for another plot through the present petition while a plot already stands allotted to her. She cannot be permitted to kill two birds with one stone.
(27) Learned counsel for respondent No.4 has then contended that admittedly the petitioner never got into possession over the disputed plot as the respondent No.4 was in possession of the same since the date of allotment in his favour ( vide sub lease deed dated July 17,1965). The alleged sub lease deed dated July 5,1973 in her favour in respect of the disputed plot in view of the above, cannot be called to be a sub lease. It can at the most be termed as an agreement to lease. The learned counsel in order to buttress his argument has led me through Section 105 of the Transfer of Property Act which envisages ” A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.”
(28) The learned counsel in view of the above contends that lease of immovable property is a transfer of right to enjoy such property. Thus the delivery of possession over the subject-matter of lease is a must to create a lease in favour of a person. Unless and until the subject-matter of the lease is transferred to a particular party he cannot enjoy and use the same. Admittedly there was no transfer of the disputed plot in favour of the petitioner as the same remains with the respondent till to this date.
(29) Learned counsel for the petitioner, on the other hand, has argued that the provisions of the Transfer of Property Act are not at all applicable to the facts of the present case inasmuch as the lease in the instant case was under the Government Grants Act, 1885 ( vide Section 2 of the said Act). The contention of the learned counsel I feel is without any merit. Admittedly there is no mention in the alleged sub lease deed executed in favour of the petitioner that it was under the Government Grants Act. The mere fact that the sub lease deed was executed in Form A as per the Nazul Land Rules, 1981 would not make it ipso facto a ‘government grant’ unless there is a mention to that effect in the lease deed itself.
(30) There is another aspect of the matter. It is not true that all the provisions of the Transfer of Property Act are not applicable to the leases under the Government Grants Act. Only those provisions of the Transfer of Property Act which come in conflict with the terms and conditions of the leases which are executed under the Government Grants Act would be inapplicable to the said leases. I am supported in my above view by the observations of their Lordships of the Supreme Court as reported in The State of U.P. v. Zahoor Ahmad and another, , “……The mere fact that the State is the lessor will not by itself makes it a Government grant within the meaning of the Government Grants Act. There is no evidence in the present case in the character of the land or in the making of the lease or in the content of the lease to support the plea on behalf of the State that it was a grant within the meaning of the Government Grants Act.
(31) ……THE effect of Section 2 of the Government Grants Act is that in the construction of an instrument governed by the Government Grants Act the court shall construe such grant irrespective of the provisions of the Transfer of Property Act. It does not mean that all the provisions of the Transfer of Property Act are inapplicable. To illustrate, in the case of a grant under the Government Grants Act Section 14 of the Transfer of Property Act will not apply because Section 14 which provides what is known as the rule against perpetuity will not apply by reason of the provisions in the Government Grants Act. The grant shall be construed to take effect as if the Transfer of Property Act does not apply.”
(32) It has next been urged by Mr. L.R.Gupta, Senior Advocate, that the present petition even otherwise is not maintainable before this Court. According to the learned counsel the present case is a case of a private contract in between the two private parties. Thus it is a contract in the realm of private law. The parties to the contract are to be governed by the terms and conditions of the lease deed. Hence the present petition is not maintainable.
(33) The learned senior counsel Mr. Rohatgi while countervailing the above argument has urged that the President of India is one of the parties to the tripartite agreement. The lease was executed by the President of India in favour of the respondent No.2. Thereafter the sub lease deed was executed by the Delhi Development Authority representing the Lt. Governor of Delhi in favour of respondent No.4. According to the learned counsel the present lease is under the Government Grants Act. The challenge in the present writ petition is to an order passed by a statutory authority i.e. the Delhi Development Authority. The power is alleged to have been derived by the statutory authority to cancel the sub lease deed from a statutory document. The statutory authority has got no power de hors the impugned sub lease deed i.e. the statutory document.
(34) Admittedly the petitioner through the present petition seeks quashment of the letter dated March 30,1981 whereby the sub lease deed dated July 5,1973 in her favour was cancelled and that of the respondent No.4 dated July 17,1965 was restored. It is true that the lease deed in the above said case was executed by the President of India in favour of respondent No.3 i.e. Maharani Bagh Co-operative House Building Society. However, that fact by itself would not take the present case out of the realm of a private contract and would not ipso facto turn it into a statutory contract, particularly when there was no compulsion on either of the two parties to enter into the contract. The petitioner admittedly with her open eyes entered into the contract with the society and took a sub lease in respect of the disputed plot knowing fully well that the said plot was earlier allotted in favour of the respondent No.4 and he was pulling each and every nerve to get the sub lease restored in his favour vide his representation dated May 30,1973 addressed to Mr. S.C.Dikshit, Additional Secretary, Lease Administration, Delhi Development Authority, with a copy to the Secretary of the Society who happened to be the father of the petitioner. It has already been observed above that the Lt. Governor vide the terms and conditions of the lease deed adverted to above was fully competent to condone any breach on the part of the sub lease holder and to restore the lease. If this is so the petitioner instead of approaching this Court under Article 226 of the Constitution of India should have filed a suit for specific performance for enforcement of the contract and for recovery of possession over the disputed plot.
(35) A matter very much akin to the matter in hand came up for hearing before a Division Bench of this Court as reported in Mangat Ram v. Delhi Development Authority and Anr., , …” This apart, the respondents have raised a preliminary contention that, even assuming that the respondents were wrong in the above contention, the petitioners were not entitled to invoke the writ jurisdiction of the High Court under Article 226 of the Constitution inasmuch as the action complained of was not a statutory act but was merely the exercise of the powers conferred on a lessor under the terms of a lease deed. It is contended that though the lease was executed by the President of India and the powers of cancellation of the lease and the re-entry were being exercised on behalf of the President by the Dda, the matter still remained in the dominion of a contract and that it was not open to the petitioners to seek enforcement of contractual rights by resort to a writ petition. It is submitted that the appropriate court for the petitioners would be, if so advised, to file a suit against the concerned respondents in a Civil Court and seek appropriate remedies. Since it appeared to us that there was some force in this preliminary objection, we heard arguments at length thereon. Since we have come to the conclusion that the preliminary objection is well taken nd should be upheld, we are proceeding to dispose of these writ petitions on this preliminary objection without going into the other contentions regarding the merits of the cancellation of the lease that have been put forward in the writ petition.”
(36) I am also tempted here to cite a few lines from a judgment of the Hon’ble Supreme Court as reported in Assistant Excise Commissioner and Ors v. Issac Peter & Ors., ,….” We are, therefore, of the opinion that in case of contracts freely entered into with the State, like the present one, there is no room for invoking the doctrine of fairness and reasonableness against one party to the contract ( State), for the purpose of altering or adding to the terms and conditions of the contract, merely because it happens to be the State. In such cases, the mutual rights and liabilities of the parties are governed by the terms of the contracts ( which may be statutory in some cases) and the laws relating to contracts. It must be remembered that these contracts are entered into pursuant to public auction, floating of tenders or by negotiation. There is no compulsion on anyone to enter into these contracts. It is voluntary on both sides. There can be no question of the State power being involved in such contracts. It bears repetition to say that the State does not guarantee profit to the licensees in such contracts. There is no warranty against incurring losses. It is a business for the licensees. Whether they make profit or incur loss is no concern of the State. In law, it is entitled to its money under the contract. It is not as if the licensees are going to pay more to the State in case they make substantial profits. We reiterate that what we have said hereinabove is in the context of contracts entered into between the State and its citizens pursuant to public auction, floating of tenders or by negotiation. It is not necessary to say more than this for the purpose of these cases. What would be the position in the case of contracts entered into otherwise than by public auction, floating of tenders or negotiation, we need not express any opinion herein.”
(37) To the same effect are the observations of the Hon’ble Supreme Court as reported in Union of India and others v. M/s Graphic Industries Co. and others, .
(38) Learned counsel for respondent No.4, Mr. L.R.Gupta, has then contended that there is a clause with regard to the arbitration in the lease agreement entered into in between the parties dated July 5,1973. It provides as under: “VIII.In the event of any question, dispute or difference, arising under these presents, or in connection therewith ( except as to any matters the decision of which is specially provided by these presents), the same shall be referred to the sole arbitration of the Lt. Governor or any other person appointed by him……”.
(39) The learned counsel has urged on the basis of the above that in the instant case admittedly a dispute has arisen in between the parties with regard to the leasehold rights. Thus the petitioner should have approached the Lt. Governor in terms of Cl.VIII for referring the disputes to arbitration. The learned counsel in support of his contention has referred to the observations of their Lordships of the Supreme Court as reported in M/s Bisra Stone Lime Co.Ltd. v. Orissa State Electricity Board and another Air 1976 Supreme Court 1267,….” But all questions of law, one of which may be interpretation of the agreement, need not necessarily be withdrawn from the domestic forum because the court has discretion under Section 34 of the Arbitration Act or under Article 226 of the Constitution and that the court is better posted to decide such questions. The arbitration clause 23 is a clause of wide amplitude taking in its sweep even interpretation of the agreement and necessarily, therefore, of clause 13 therein. We are therefore, unable to accede to the submission that we should exercise our discretion to withhold the matter from arbitration and deal with it ourselves.”
(40) Thus it is abundantly clear from above that where there is an arbitration clause for the settlement of the disputes and the parties have agreed to incorporate such a clause in the agreement with their eyes wide open in that eventuality in case of a dispute the Court would decline to interfere and would ask the parties to seek settlement of their disputes through arbitration.
(41) Learned counsel for the petitioner referred to the following authorities during the course of his arguments. I have very carefully gone through the said authorities, yet I find that they are not applicable to the facts of the present case. 1.Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust & Ors. v. V.R.Rudani & Ors. It was observed that a writ of mandamus can be issued to any person or authority performing public functions and owing positive obligation to the affected party. In the said case a writ petition was filed by retrenched teachers of a private aided college affiliated to university, seeking writ of mandamus for compelling the college management to pay them terminal benefits and arrears of salary. 2. Kumari Shrilekha Vidyarthi & Ors v. State of U.P. & Ors, (1991) 1 Scc 21. It was held ” Arbitrary State action against persons holding posts of public nature such as District Government Counsel is sufficient to attract power of judicial review for testing validity of the action on the anvil of Article 14.” 3. Delhi Development Authority v. Lala Amar Nath Educational & Human Society & Anr., 4(1990) Delhi Law Times 651, “Held that the terms of allotment letter and the terms of the perpetual lease respecting payment of increased cost of land have to be read together and the only meaning that could be given is that any “difference in cost of land” has to be on the basis of ‘no profit no loss'”. 4.Papanasam Fishermen Co-op. Society Ltd. & Anr. v. The Collector of Thanjavur & Ors., . It was a case in which the terms and conditions of the lease of fishing rights in inland waters were traceable to Indian Fisheries Act,1897. It was held that a lessee can maintain a writ petition against illegal cancellation of the lease.” 5. Gyani Tara Singh & Ors v.The State of Haryana & Ors., Air 1974 Punjab & Haryana 66. Petitioners who were originally lessees conferred with proprietary rights. Government, however, continued to treat them as lessees. Held such treatment was violation of petitioners’ fundamental right to property and thus could be challenged by a writ petition.” 6. Md.Hanif v. The State of Assam, 1970() Scr 197. ” The jurisdiction of the High Court under Article 226 is an extraordinary jurisdiction vested not for the purpose of declaring private rights of the parties but for the purpose of ensuring that the law of the land is implicitly obeyed and that the various tribunals and public authorities are kept within the limits of their jurisdiction. The remedy provided under Article 226 is a remedy against the violation of the rights of a citizen by the State or statutory authority. In other words, it is a remedy in public law.”
(42) In the circumstances stated above, I do not see any force in the present petition. The same is accordingly dismissed with costs.