S.K. Kapur, J.
(1) This first appeal was on an earlier occasion adjourned as the parties were trying to arrive at asettlement. After we had heard this appeal the learned counsel for the parties wanted us to reserve judgment for a few days so that the parties may negtoiate for a compromise. We have now been informed that they have nto been able to reach any agreement.
(2) The Chief Commissioner of Delhi by order dated 13th September, 1954, decided to re-enter the premises on account of the alleged violation of clause 2(5) of the lease-deed. This order results in the plaintiff losing the entire valuable property. The right of re-entry has been exercised on account of certain unauthorised constructions in the premises. On 25th May, 192/, a lease agreement was entered into between one Padam Chand and the Secretary of State for India. The plaintiff-appellant, purchased Padam Chand's rights on 31st March, 1930, and alease- dead was executed between the Secretary of State for India and B. D. Gupta, plaintiff-appellant, on 20th August, 1932. Clause 2(5) of the said lease-deed (Exhibit D. 1.) reads-
'THE lessee will nto 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 toher than and except the building erected thereon at the date of these presents.'
The right of re-entry has been exercised under clause 3 of the said document in which there appear some mistakes and I have mentioned this fact because the learned counsel for the appellant based an argument on the same. The said clause reads-
'IF the yearly rent hereby reserved or any part thereof shall at any time be in arrear and unpaid for one calendar month next after any of the said day whereon the same shall have become due, whether the same shall have been demanded or nto or if there shall have been in the opinion of the Lesser or the Chief Commissioner of Delhi whose decision shall be final and 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 Lesser or any person or persons duly authorised by him ntowithstanding the waiver of any previous cause, or reentry upon any part of the premises hereby demised or of the buildings thereon in the name of the whole of re-enter and thereupon this demise and everything herein contained shall cease and determine and the lessee shall nto be entitled to any compensation whatsover nor to the return of any premium paid by him.'
The mistake, because of which this clause cannto according to the learned counsel for the appellant be enforced, is stated to be towards the end where the clause reads-'............... in the name of the Lesser to whole of re-enter and thereupon this demise and everything herein contained shall.............. .' We checked up this clause with the original document and there also the same mistake occurs. It has been admitted on behalf of the appellant that he did make certain constructions in the building. On 5th March, 1953, the plaintiff gave a ntoice in writing to the New Delhi Municipal Committee under section 189(3) of the Punjab Municipal Act intimating his intention to make and alter certain constructions on the back and front portions of plto No. 17, Block No. 134, New Delhi, which premises are now known as i-Curzon Road, New Delhi. The plan submitted along with the application of the plaintiff was sent by the New Delhi Municipal Committee to the Land and Development Office on 9th March, 1953, and since in view of the provisions of section 193(4) of the Punjab Municipal Act the Municipal Committee had to communicate the rejection of the plan within sixty days the New Delhi Municipal Committee wrtoe to the appellant on 30th April, 1953, that the plan had been rejected. The plan and the application of the plaintiff still remained in the Land and Development Office and on 16th July, 1953, the said office rejected the plan submitted by the plaintiff and the New Delhi Municipal Committee informed the plaintiff about the said rejection on 1st August, 1953. The plaintiff filed a suit, being No. 137 of J 944, challenging the said rejection and the Court decided the same in favor of the plaintiff holding that there was no valid rejection before 3rd May, 1953, being the last date up to which the rejection had to be communicated. The suit was, thereforee, decreed on 13th December, I b 55.
(3) After the receipt of the communication dated 1st August, 1953, from the New Delhi Municipal Committee the plaintiff enquired about the reasons for rejection and by five letters written in October, 1953, February, 1954, March, 1954, April, 1954 and June, 1954, the Land and Development Office informed the plaintiff that the constructions were illegal. These letters were received by the plaintiff when the construction was actually in progress. It is admitted on behalf of the plaintiff-appellant that these so called unauthorised constructions were made after 9th March, 1953. It is in these circumstances that on 14th September, 1954, the Chief Commissioner directed re-entry into the building and the plaintiff filed the present suit in December, 1954 challenging the said direction of the Chief Commissioner, which was dismissed by the trial Court by Judgment dated 3rd April, 1957.
(4) The unauthorised construction consists of two flats made on the first-floor of the existing building. The following six contentions have been raised by Mr. Bindra on behalf on the appellant :-
(1) The order of the Chief Commissioner, being a quasi-judicial order, could nto have been passed without giving an opportunity to the plaintiff of being heard, which opportunity was nto granted in this case; (2) The effect of re-entry is that by virtue of clause 2(10) of the lease-deed the .plaintiff loses all rights even to the construction on the said land which he has erected at a considerable cost. This confiscation of property is vocative of Article 31 of the Constitution ; (3) constructing two flats on the first-floor, that is, on a building already existing, does nto violate clause 2(5) of the lease-deed which only forbids construction on the land without permission of the Chief Commissioner; (4) the forfeiture has nto been effected by an appropriate authority ; (5) permission by the Municipal Committee included permission by the Chief Commissioner and, thereforee, clause 2(5) of the lease- deed had been satisfied ; and (6) clause 3 of the lease deed could nto be given effect to .in view of the mistakes mentioned above.
(5) It is convenient to dispose of the last contention first. The learned counsel for the respondnts pointed out that the last part of the clause ought to read-'.......... ..in the name of the Lesser to reenter and thereupon this demise and everything herein contained shall cease and determine.. .........' I agree with the learned counsel for the respondents that the mistake does nto affect the substance of the matter. The purport of the clause appears to be quite clear and authorises the Lesser to re-enter the demised premises. If the word 'whole' is read as 'Lesser' there is no difficulty. Even toherwise there is no ambiguity in the language of the clause to the extent it confers on the Lesser the right to re-enter. The right will, thereforee, have to be exercised in the name of the Lesser. Moreover, the parties do nto seem to have any doubt in their minds that the Lesser had the right of re-entry. It must be for this reason that one finds no firm allegation in the plaint touching on this objection. It is nto open to the appellant to raise this question for the first time, particularly because if this question had been raised it would have been open to the dependant-respondents to produce evidence to show that that the mistake was rectified by some subsequent document.
(6) So far as the first contention is concerned, it is nto disputed that the construction had been made. The question, thereforee, to be answered is: whether it was made with the previous consent in writing of the Chief Commissioner? In this view it is hardly necessary to decide whether the decision of the Chief Commissioner as to the breach of the terms of the lease-deed is justiciable or nto. Regarding the contention that the Chiel Commissioner should have heard the appellant before deciding whether or nto the right of re-entry should beexercised, there is ntohing to indicate that in doing so the Chief Commissioner acts in any quasi-judicial capacity. In taking this decision the Chief Commissioner is nto required to decide any dispute between the two parties with respect to their legal rights, duties, powers and liabilities, but only exercises the right of a landlord to re-enter the premises in case of breach of any of the conditions of the lease. The parties have agreed between themselves making the Chief Commissioner the final judge of the question whether any condition of the lease has been broken or nto. If it has been broken and that is the conclusion to which I have arrived at. it is hardly possible to suggest that the action of the Chief Commissioner or the landlord in exercising the option to re-enter, or nto to re-enter, can be subjected to judicial scrutiny. Moreover, as pointed out in the ntoe of Mr. M. De Mello dated 8th September, 1954, several letters were written to the appellant to desist from making the unauthorised structures and giving him an opportunity to remove the same. That should have given sufficient opportunity to the appellant to make any representation if he wanted to do so. Consequently, it cannto be said that the appellant was given no opportunity to make any representation.
(7) Coming now to the second contention relating to the question of violation of Article 31 of the Constitution, the appellant entered voluntarily of his own free will into the lease document which contained clause 2(10) reading.-
'THE lessee will on the determination of this lease peaceably yield up the said demised premises and the said residence and building thereto appertaining into the Lesser.'
In these circumstances. Article 31 of the Constitution cannto be taken aid of by the appellant.
(8) I am also nto in agreement with the learned counsel for the appellant that he has nto erected any construction because he merely built two flats on an existing building. Clause 2(5) of the lease-deed prohibits the lessee to 'effect or sufier to be erected on any part of the said demised premises any buildings toher than and except the building erected thereon at the date of these presents'. The very language of the clause makes it clear that construction of the flats on the first-floor would constitute violation of clause 2(5) of the lease-deed. The clause in terms says that no toher building shall be erected except the building already erected thereon on the date of the lease document. I am unable to appreciate the argument that merely because the further construction is made on the building and nto on the ground it will nto violate clause 2(5) of the lease-deed. T do nto entertain any doubt that such construction would be covered by the said clause.
(9) There is also no force in the contention that permission from the Municipal Committee was sufficient compliance with the requirements of the lease-deed as to the permission of the Chief Commissioner. The sanctioning of the plan by the Municipal Committee has ntohing to do with permission required under the terms of the lease-deed; the former being the requirement of the building bye-laws and the latter of the agreement between the parties. Two distinct permissions were, thereforee, necessary.
(10) There then remains the fourth contention of Mr. Bindra, the learned counsel for the appellant. It is unnecessary to refer to the legislative history of the constitutional enactments from 1932 to 1950 as Mr. Bindra doss nto dispate that in the lease-deed the word 'President' will have to be read in place of the words 'Secretary of State for India'. His argument, however, is that a reference to the opening paragraph of the lease deed and certain toher clauses therein, particularly clause 2(7) and clause 3, draw a clear distinction between the Lesser and the Chief Commissioner, the suggestion being that since right of re-entry could be exercised only by the Lesser, it should have been exercised in the name of the President and nto the Chief Commissioner as has been done in the document directing ra-entry dated 13th September, 1954, which says- '............ re entry may be effected on my behalf'. Once it is accepted that the lease-deed must be treated as one between the President of India and the appellant it would be a lease between the Central Government and-the lessee; In view of the definition of 'Central Government' in section 3(8) of the General Clauses Act, which defines the expression buth in relation to anything done .before the commencement of the Constitution .ind in relation to anything done, or to be done, after such commencement, the Central Government would in relation to the administration of Part 'C' States mean the Chief Commissioner. The Chief Commissioner would, thereforee, be entitled to act as the Lesser and exercise the right of re-entry. Reference may be made in this connection to Sitya Dev Busheri v. Padam Dev where if was observed-
'WE are unable to agree that Section 3(8) has the effect of putting an end to the status of part C States as independent Units, distinct from the Union Government under the Constitution. It merely recognises that those states are centrally administered through the President under Article 239, and enacts that the expression 'Central Government' should include the Chief Commissioner administering a Part C State under the authority given to him under Article 239.'
This contention of Mr. Bindra has, thereforee, no force and must be repelled.
(11) Before parting with this case I must confess that I have nto been happy in having to come to this conclusion because the re-entry would result in a great hardship to the appellant and I can only express ahope that if the Government can, acting within the law, provide relief to the appellant, they would avoid the termendous loss being caused to him
(12) In the result, this appeal fails and is dismissed with no order as to costs.
Jagjit Singh, J.
(13) -I agree.