JUDGMENT
F.K. Bahri, J.
(1) This second appeal has been brought against judgment of the Rent Control Tribunal dated January 16, 1985, by which he had dismissed the appeal of the appellant against order of the Additional Rent Controller dated August 3, 1984, by which ground of eviction covered by Clause (k) of the proviso to Sub-section (1) of Section 14 of the Delhi Rent Control Act was upheld.
(2) The admitted facts of the case are that the land underneath the demised premises was given on perpetual lease by the Land & Development Office of the Union of India to Shri Maharaj Kishan vide lease deed, copy of which is Ex. AW3/ I and this was a lease for 99 years which came into effect from April 1, 1951. Smt.Damyanti Rani Chadha appellant had inherited the leasehold rights from her husband-Sh.Maharaj Kishan on the basis of the Will which has been duly probated. The premises in question were admittedly let out to the State Bank of India for establishing its commercial branch in the demised premises. Under Clause (k) the ground of eviction becomes available to the landlord in case the premises are used in any manner contrary to the condition imposed on the landlord by the Government or any other authority mentioned therein while giving a lease of the land on which the premises are situated and notwithstanding any previous notice the said miss user is not stopped.
(3) Under Clause 1 (vii) of the lease-deed the land could not be used but for constructing a house without the previous consent in writing of the officer appointed by the Lesser in this behalf. It is asserted by the landlady that the house which had been constructed on the land could be used only for residential purposes according to the terms of the lease and thus, as the appellant had not stopped the commercial user despite a notice being served, so the ground of eviction has become available to the landlady. It is the interpretation of this particular clause and the other terms of the lease deed which would decide the fate of this appeal inasmuch as the learned Counsel for the appellant has vehemently argued that the moment a house had been constructed the terms of the lease stood complied with and reading of the whole of the lease does not show that any user of that house in any manner would lead to any breach of any term of the lease-deed and thus, he has argued that the ingredients of Clause (k) mentioned above are not proved in this case. Hence, the ground of eviction was not available to the landlady atall. I may mention that this point has not been urged before the lower authorities and has been taken for the first time before this Court in arguments. The interpretation of document is a question of law. In my view, such a question of law can be raised even for the first time in the second appeal.
(4) In Kunwar Shiam Partap Singh v. Rani Baisni Madho Kunwar & Others, , it has been held that where a question of law for the first time is raised in a Court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice to entertain such a plea. This ratio is based on a judgment of the Privy Council. The Supreme Court in the case of Hadha Sundar Dutta v. Mohd. Jahadur Rahim & Others, , has held that a question of law could be raised in the appeal. In that case the appellant had sought to raise a contention regarding the true nature of a grant for the first time in appeal. The Supreme Court held that the Appellate Court was right in allowing the point to be taken. Same ratio was reiterated by the Supreme Court in Seth Loon Karan Sethiya v .Ivan E.John & Others, .
(5) So, the crucial question of law to be decided in the present case is whether the terms of the lease-deed, copy of which is Ex. AW3/1, really impose any condition on the landlady that the house which was to be constructed on the said land was to be used only for residential purposes and was prohibited from being used for commercial purposes and if it has been used for commercial purpose, does it amount to breach of any term of the lease deed? In the present proceeding it is not to be examined whether the user of the said house for commercial purposes leads to any violation of Zonal Development Plan or the Master Plan.
(6) Similar clause appearing in the lease issued by the Land & Development Office came up for consideration in the case of M/s. Shiv Dayal Son & Sons Pvt.Ltd. v. Union of India & Others, Civil Writ No. 1110/73, decided by a Division Bench of this Court on November 3, 1982. In the said case the lease-deed was given for 99 years and a similar clause appeared that the land was not to be used but for constructing thereon a house. The Court examined different types of leases which are contemplated in appendices Xi, Xii and Xiii to Rule 40(3) of the Displaced Persons (Compensation & Rehabilitation) Act, 1954 and noticing that in the other types of leases the terms clearly stipulate that the building would be used only for specific purpose whereas the lease-deed issued under Rule 40(3) appendix Xiii was differently worded as far as the user of the land was concerned. The Division Bench held that the clause in question appearing in that ‘lease only contemplated that the land is to be used for constructing a house and it does not further lay down that the said house cannot be used for a purpose other than residential and it was held that if the house had been constructed the same would comply with the terms of the lease and there being no other clause in the lease-deed which prohibits the user of the house for any purpose other than residential the mere user of the house for nonresidential purposes would not amount to violation of any terms of the lease-deed and thus, it was held that as the terms of the lease-deed have not been violated the Union of India has no authority to forfeit the lease on the ground that the house so erected has been used for the purpose other than residential.
(7) This matter came up for decision in a petition challenging the order of the Union of India in which the lease of the land was forfeited on the ground that the house so constructed had been used for commercial purpose in violation of the terms of the lease-deed. The order forfeiting the lease was, thus, set aside.
(8) This decision of the Division Bench has been followed by a Single Bench of this Court in the case of C.L.Suri v.Union of India, .
(9) THE. learned Counsel for the respondent No. 1 Bawa S.C. Singh has argued that the schedule appearing in the lease-deed at the end of the document indicates that it was a cottage plot No. 15, Patel Nagar, which was leased out. He has argued that reading the words “Cottage Plot” Along with Sub-clause (vii) should lead the Court to hold that in fact, the lease-deed contemplated that the house to be constructed over the said land could be used as a cottage, meaning thereby that it could not be used for any commercial purposes and any such commercial user would amount to violating the terms of the lease-deed.
(10) It is not possible to countenance this contention inasmuch as in the terms of the lease-deed which I have perused, I find that there is no such prohibition indicated that the house could not be used for any purpose other than the residential. Even if I were to come to a different conclusion that once the word “house” has been mentioned in the lease-deed the effect of the same would be that Lesser and the lessee intended that the house could be used only for residential purposes but as similar clause appearing in similar type of lease has been interpreted by a Division Bench differently, I have no option but to follow the ratio given by the Division Bench in the case of M/s. Shiv Dayal Son & Sons Pvt.Ltd. (supra) and hold that in fact, by using the house in question for commercial purposes there has occurred no violation of the terms of the lease, copy of which is Ex. AW3 /1, and thus, the ground of eviction covered by Clause (k) could not become available to the landlady.
(11) It is really surprising that on the one hand the Union of India which is the Lesser of the land in question has invoked the terms of the lease-deed in the manner to show that the same arc violated and on the other hand, it had allowed the property to be used for running a branch of the State Bank of India which is a statutory corporation and is obviously owned by the Union of India if veil of the same is lifted although having a separate legal entity. If the Union of India were keen that the house so constructed on the said plot should not be allowed to be used for commercial purposes, I do not understand why the Union of India through its Cabinet Minister dealing with the Banking Affairs could not have issued directions to the State Bank of India to stop using the said premises for running any branch of the bank so that the landlady should not suffer the consequences of such persistent user of the premises for commercial purposes by the State Bank of India.
(12) The Union of India may, on its own, look into the matter and get the disputes settled by Cabinet Ministers concerned by issuing appropriate directions to the State Bank of India or to the Land & Development Office.
(13) One of the issues which may arise is whether by allowing the State Bank of India to use the premises for commercial purposes, could not it lead to hold that there is implied consent of the Union of India for allowing such user? Counsel for the landlady has intimated that there are three letters issued by the Land & Development Office, copies of which are on the record, showing that Land & Development Office of the Union of India has not agreed to this proposition that there has been any implied consent of the Union of India for allowing the said Bank to run its commercial branch in the premises in question.
(14) However, in view of my finding that there is no violation of terms of the lease, I need not express my final views on other questions.
(15) The appeal is allowed and the judgment of the Rent Control Tribunal as well as the judgment of the Additional Rent Controller are set aside. The petition for eviction is dismissed. The parties are left to bear their own costs throughout. The misuse charges deposited by the appellant by way of Fixed Deposit Receipt be released to the appellant. The Registrar will take steps in this regard.