JUDGMENT
S.B. Wad, J.
(1) This Writ Petition challenges the notice dated 12,2.1973 issued by Land and Development Office to the petitioner terminating the perpetual lease in their favor for violation of clause 6 of the perpetual lease. Before terminating the lease a notice was given to the petitioners informing that that on inspection of the premises on 4.11.1970 it was observed by the Inspecting Officer that an area measuring about 2843 sq, ft. in the main building at the ground floor of 48, Hanuman Road, New Delhi, (the leased property) was being used as Doctor’s clinic (Ex-Ray Electro-Medical and Skin Clinic), The said notice called upon the petitioners to remove the breach within thirty days. On the failure of the petitioners to comply with the said notice, order terminating the perpetual lease was passed against the petitioners. It may be noted at this stage that the said Ex-Ray and Electro-Medical and Skin Clinic was being run by Dr. Ved Prakash who was the tenant of the petitioners. On 2.4 1973 the petitioners filed the suit against Dr. Ved Prakash and others for recovery of possession under clause (k) of the proviso to section 14 of the Delhi Rent Control Act alleging that Dr. Ved Prakash and his heirs were using the premises for commercial purposes, while the lease was granted to Dr. Ved Prakash for residential purposes.
(2) The learned Rent Controller by his order dated 29.4.1978 held that Dr. Sen had made out the case for termination of the lease of Dr. Ved Prakash (and his heirs) under clause (k) of Section 14. The learned Judge further directed that the notice under Section 14(11) of the Delhi Rent Control Act be sent to Land and Development Department to as-certain whether they were prepared to regularise the misuse of the premises permanently on payment of compensation, and if so bow much. We may at this stage notice the provisions of clause (k) of proviso to section 14 and section 14(11): 14(k). “that the tenant, has, notwithstanding previous notice, used or dealt with the premises in a manner contrary to any condition imposed on the landlord by the Government or the Delhi Development Authority or the Municipal Corporation of Delhi while giving him a lease of the land on which the premises are situate;” 14(11). “No order for the recovery of possession of any premises shall be made on the ground specified in clause (k) of the proviso to sub-section (1), if the tenant, within such time as may be specified in this behalf by the Controller, complies with the condition imposed on the landlord by any of the authorities referred to in that clause or pays to that authority such amount by way of compensation as the Controller may direct.”
(3) Against the order of the Rent Controller Mrs. Dr. Ved Prakash, widow of late Dr. Ved Prakash, filed an appeal to the Rent Control Tribunal. Cross objections were filed by the petitioners. The learned Rent Control Tribunal dismissed the cross-objections and allowed the appeal of Mrs. Ved Prakash. After setting aside the order of the Rent Controller, the Tribunal directed “the appellant shall deposit in the trial court within three months from today (i.e. 23.3.1981) misuse charges uptil 14.1.1980 amounting to Rs. 1,71,308.12 p. or stop the misuse within next fortnight thereto In default the appellant shall be liable to be evicted. For the subsequent period the respondent shall apply to Land and Development Office for temporary regularisation and inform the appellant about the charges claimed by the Land and Development for temporary regularisation by registered post Within one month of the receipt the appellant shall dispatch the requisite amount or stop the misuse within fifteen days thereafter I default they would be liable to be evicted. However, if at any stage, the Land and Development Office refuses to condone the misuse even on temporary basis the respondent shall inform the appellant and appellants must stop the misuse within one month of the receipt of the information. In default they would be liable to be evicted.” This order was passed by the Tribunal on 23.3.1981.
(4) Dr. Ved Prakash’s heirs filed a second appeal being Appeal No. SA.O 195/81 treating the order of the Rent Control Tribunal being partly against them. The question of law raised was proper interpretation and application of clause (k) of proviso to section 14 and section 14(11). While admitting the Second Appeal this court stayed the operation of the order of the Rent Control Tribunal on the appellants’ furnishing security is sum of Rs. 3 lacs for payment of misuse charges. The bank guarantee was furnished by the appellants.
(5) When the Writ Petition filed by the landlord came up for hearing the Division Bench thought that the said Writ Petition was connected with similar writ petitions in regard to compounding fees for breach of perpetual lease. At a subsequent stage the D.B. found that this writ petition is not connected with the other pending petitions and directed that both the writ petition and the second appeal should be listed before a single Judge for disposal. By the time these matters were listed before me I was a member of the Bench before whom the other writ petitions regarding termination of perpetual lease were listed. Thinking that the decision of the Division Bench in those writ petitions would to some extent affect the decision in the present writ petition and the second appeal I postponed the delivery of the judgment in these matters, hoping to hear the other writ petitions in the D.B. But for some reason or the other these writ petitions have not come up for hearing and I am not sitting for the regular hearing of the writ petition in the D.B. for the last about one year. Therefore without waiting further I am now pronouncing the judgment in the present writ petition and the second appeal.
(6) In the Writ Petition it was contended that the perpetual lease cannot be terminated for misuse of premises by the tenant who in spite of repeated promises was not stopping the misuser. It was further stated that petitioners have filed eviction proceedings against the tenant for eviction on the ground of misuse of the premises. It is also submitted that using the premises for the Doctor’s clinic does not convert the residential use into commercial use. It was the submitted that the L&DO. should compound the alleged breach by accepting compounding fees. Non-doing of it would violate Act. 14 and 19 of the Constitution. The petitioners also submitted that the termination of the lease was done by the L&DO. at the behest of the tenant.
(7) In the second appeal the heirs of Dr. Ved Prakash contended that to use the portion of the premises for running a clinic does not change the residential character of the premises and there was no breach of the terms of the lease. It is also stated that the landlords had themselves taken this plea in the writ petition. The appellants also contended that the amount of compensation was arbitrarily fixed and that the Tribunal was not right in leaving it to the L&DO. whether to compound the breach or not. While considering the contentions in the writ petition and the second appeal the important fact to be noticed is that the L&DO. have categorically stated that they do not want to condone the breach by accepting compounding fees and insist upon the termination of the lease.
(8) At the time of the hearing the counsel for the land-lord Sans, argued that since they had taken all the legal steps for the eviction of the tenant who had committed the alleged breach by filing proceedings for the eviction of the tenant, the alleged breach cannot in law be treated as the breach by them and the lease cannot be terminated by the L&DO. One preliminary question which was required to be answered at this stage was whether the writ petition for the breach of contract was maintainable or whether the landlord should be directed to file the suit. On the facts of this case I hold that it will be unfair to direct the petitioners to file a suit after fifteen years of the pendency of the writ petition in this court and particularly when no such objection was raised at the time of the admission of the writ petition. Secondly, the writ petition and the second appeal call for the interpretation of section 14 of the Delhi Rent Control Act and the enquiry is not restricted only to the breach of the lease deed.
(9) It cannot be disputed that the entire ground floor consisting of about 2843 sq. ft. in the main building was being used as a clinic by the tenants. It is not similar to use of a room as an office or a consulting room used by a lawyer or a medical practitioner. I, therefore, hold that such large scale use of the premises for running the clinic would not fall within the residential use and, therefore, there was clear breach of the lease on the part of the tenants, that is. Dr. Ved Prakash and his heirs. Once it is held that there was a breach of the lease it will depend upon the Land and Development Office to compound it or not. In this case they have decided not to compound the breach by accepting compounding fees. This being a term of the contract lease a party to a contract cannot be forced by the court to follow a particular course of action. The parties are free to follow all the remedies open to them for the breach of a contract.
(10) Taking advantage of the fact that the second appeal and the writ petition were being heard together Shri Harish Salve, Advocate, appearing for the tenants argued that the action of the L&DO, in not compounding the breach was arbitrary and discriminatory. The learned Advocate further argued that L&DO. being a Department of the Government cannot act arbitrarily and in violation of Art. 14. According to him, breaches of some leases are compounded by the L&DO. while the others are not compounded. This arbitrary exercise of power violates Article 14 of the Constitution.
(11) This argument of Shri Harish Salve is misconceived. The only stage at which Article 14 can be invoked in relation to public authority like L&DO. is at the stage of entering into a contract (Airport Authority’s case) but once the contract is entered into and where the parties stand by their contract subsequent breaches of contract and the remedies availed by the parties are in the realm of private law of contract and cannot be treated as part of public law requiring a public authority to act according to Art. 14 of the Constitution. The submission is, therefore, rejected.
(12) Both, the petitioners landlord and respondent tenants, have referred to the letter of Ministry of Works & Housing and Supply dated 31.7.1961, addressed by the Under Secretary, Government of India to Dr. G.D. Bhalla, Honorary Secretary, Delhi Medical Association, Medical Association Road, Delhi. The relevant portion reads : “Sub : Residential premises used by doctors relaxation of terms of lease.
(13) It was decided in 1960 that the lessee of the residential houses or their tenants can be permitted to carry out some activity connected with the Medical profession, etc. provided this does not cause any obstruction or nuisance in the neighborhood and the private residential character of the locality is not disturbed.”
(14) According to the tenants the said instructions were acted upon by the L&DO. accepting payment for the damages and ground rent up to 14.1.1962, for regularisation. According to both, the landlord and the tenants, the matter regarding termination of lease and re-entry was closed with payment of damages and ground rent charges in 1961..These submissions are countered by L&DO by the instructions received by them from Works & Housing Department on 24.7.70. The same may be noticed : “Sub : Administration of leases-rationalisation of policy regarding.
(15) Misuses appended to the aforesaid letter (11.12.68) may not be objected to, if it is to the extent of one or two rooms not exceeding in total 500 sq. ft. instead of 300 sq. ft. as at present.”
(16) After the new instructions were received on 24.7.70 he L&DO informed the petitioners on 19.1.71 that on inspection of the premises on 4.11.70 it was observed that an area measuring 2843 sq. ft. in the main building at ground floor is being misused as Doctor’s Clinc, X ‘Ray’ Electro- Medical and Skin Clinic. The petitioners were asked to remove the misuse within 30 days. The petitioners than brought to the notice of the L&DO the fact of their alleged regularisation in 1961. They also wrote to the tenants to stop the misuse. Two such similar letters were sent by L&DO asking the petitioners to remove the misuse which apparently indicated that they had not accepted the petitioners’ submission that the misuse was regularised in 1961. Finally the L&DO informed the petitioners with the impugned order that the lease stood terminated. But after the first letter from the L&DO, the landlord served a legal notice on the tenant terminating the tenancy for running the clinic on 30.1.1973 and thereby filed a suit in the Rent Controller’s Court for eviction of the tenants inter alia on the ground that the tenant bad, contrary to the lease, misused the premises.
(17) In reply to the landlord’s letters, the tenant kept on informing that the matter of condensation of misuse was again being taken up by the Medical Association with the Government. But when the writ petition was filed in 1973 the tenants, through the counter affidavit charged that the impugned notice of the termination of lease was collusive and that the said notice was issued by the L&DO at the behest of the landlord. The landlords also charged that the tenant had colluded with the L&DO for troubling the landlord, which, according to the landlords, was clear from the fact that the impugned notice was served on the clinic address knowing fully well that the landlords do not stay there and the notice was personally brought by the tenants to the landlords.
(18) There is no substance in mutual accusations made by the landlords and tenants. The fact is they were completely in dark in regard to the revised instructions in regard to permissible area in which a medical practitioner can carry on his medical profession. The L&DO acted upon the modified instructions issued in 1970 and acted upon it in issuing the impugned notice. The acceptance of the damages for the past breaches does not in law amount to regularisation of the misuse. The impugned order does not suffer from any infirmity. The restriction of using the space up to 500 sq. ft. for non-residential purpose by the professionals and in the residential locality, is reasonable restriction on the owners of property and has to be upheld,
(19) The misuse was brought to the notice of the tenants by the landlords a number of times, but the misuse was not stopped. The landlord then terminated the tenancy and filed a suit for eviction. Thus, the landlord was not personally misusing the premises and took all the legal steps expeditiously for stopping the misuse by the tenants. The fact of misuse has been confirmed concurrently by the two courts below. As the L&DO is not ready to condone the misuse and insist on stopping it and the tenant has in spite of the notice had not stopped the misuse, he is liable to vacate the premises under clause (k) of the proviso to Section 14 of the Delhi Rent Control Act. The landlords the petitioners cannot be legally held to be the defaulters and, therefore, the lease in their favor cannot be terminated by the L&DO. The impugned order in so far as it terminates the lease of the petitioners is illegal qua the petitioners and has to be quashed qua the petitioners.
(20) SAO. 195/81 is dismissed. The tenants, viz. the heirs of Dr. Ved Prakash should vacate the premises within six months from today. Writ Petition 711/83 is allowed with costs. The rule is made absolute.