Avadh Behari Rohatgi, J.
(1) This is a test case. Ranjinder Nagar House owners' Welfare Association and its 54 members have brought this writ petition under Article 226 of the Constitution against the Union of India challenging the validity of notice dated 7th July, 1970/24th July, 1970 issued by the Land and Development Officer, Respondent No. 3, to one of its members Ghanshyam Dass, petitioner No. 1, to show cause why his premises be not re-entered by the President of India. As similiar notices have been issued to other members of the Association they have made it a 'test case'.
(2) These are the facts. The displaced persons who were uprooted from their home land in West Pakistan in the wake of partition of the country in 1947 had to be resettled. One of the legislative measures taken in this behalf was the passing of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (the .Act). This came into force on 9-10-1954. The Government set up displaced persons colonies. One such colony was Rajinder Nagar. The Government allotted houses to displaced persons in this colony. They issued an allotment letter to each of the displaced persons who were in need of accommodation, The allotment letter said that the allottee is allotted a particular house and is permitted to occupy it on his giving undertaking to the effect : 1. That he will pay the rent as may be fixed in respect thereof by the Government hereafter ; 2. That he will duly execute a lease deed in the form approved by the Government in this behalf ; 3. That he will pay rent from the date of occupation of the house ; and 4. That in case he fails to take possession of the house within a period of 7 days from the date of the allotment order, the allotment shall be deemed to have been cancelled.
(3) These allotments letters were issued in 1951. After the Act of 1954 the allottees were required by the Government to execute lease deeds. Appendix Xi of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955 (the Rules) prescribed the' form of the lease deed applicable to Government owned sites in Delhi. Under Rule 40(3) it is provided that where a Government built property is sold to a purchaser the site will be held by the purchaser under the lease which shall be demised to him on such terms and conditions as shall be determined by the Settlement Commissioner. As regards the superstructure, on the payment of the full price the ownership of the structure shall be transferred to the purchaser. The terms and conditions of the lease, the rule says, shall be as in appends Xi of the Rules.
(4) Now we turn to appendix XI. This is the statutory form of the lease deed. In the prescribed form the lease deeds were executed by the allottees in 1963 or thereabout. The buildings constructed on the lease hold sites were transferred to them by deeds of conveyance as provide in rule 91(8). In short the lease deeds were executed in respect of the site in the statutory form set forth in appendix XI. Conveyance deeds were executed in the statutory form given in appendix XXV. This is how the displaced persons were resettled in the new environment. Both these documents were executed by the President of India on behalf of the Government. In the case of lease he was the Lesser and the allottee was the lessee. In the case of the conveyance deed he was the vendor and the allottee was the purchaser.
(5) To this case we are concerned only with lease and in particular clause l(vi) which is in these terms ;
'1.The Lessee doth to the intent that his burden of the covenants may rim with the said land and may bind any permitted assignee thereof hereby covenant with the Lesser as follows : (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 any 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 consisting of one residential flat or a double storeyed building consisting of one or two residential falts in all, with a barsati on a top, as may be approved for the locality or as provided in the building already erected on the said land.'
(6) The President has given a building lease. This is the meaning of this clause. A building lease is a lease for building purposes. In determining whether a lease is, or is not, a building lease regard must be had to the (i) circumstances of the contract; (2) the subject matter of the demise; and (3) the nature of the covenants. Here the lease contains a covenant by a lessee to build (See Re Halle 24 Ch. D. 624). Only residential flats can be built not shops or offices. The lessee cannot carry on 'any trade or business whatsoever'. Nor can he use the land and the. buildings erected thereon for any purpose other that of residence. The clause is explicit and emphatic. The word 'whatsoever' in the clause is an eloquent testimony of par- ties' intention to use the land and the built up property only for-residence and no other purpose. 'Whatsoever' implies that the preceding words are used in a comprehensive sense. The language excludes trade and business positively.
(7) Now some of the lessees have put the whole or a part of their building to business purposes. And the Lesser has issued show cause notices of recently to them. The impugned notice is in these terms :
'WHEREASon inspection of the premises mentioned above it was found that the same is being used by you for a purpose other than that for which it has been leased out and thus you have contravened clause l(vi) of the lease deed. Whereas inspire of being asked to remedy the breach vide notice dated 8-11-65 and 20-2-67, you have failed to do so. You are hereby given a final show cause notice as to why the premises be not re-entered under clause Ii of the' lease deed. This notice is being given for end on behalf of the President of India.'
(8) Clause Ii gives a right to the lesson to reenter upon the premises if there is a breach by the lessee of the covenants and conditions of the lease and on reentry 'this demise and everything herein contained shall cease and determine.'
(9) The only question raised before me is about the validity of the notice I have set out above. Belore I consider the petitioners' case I must decide a preliminary objection raised .to the maintainability of the writ petition by the Government. Counsel for the Union of India says that the writ petition is not maintainable because the lease is a contractual document and Art. 226 cannot be invoked in this case. I was referred to Burmah Construction Co. v. State of Orissa, : AIR1962SC1320 . In my opinion, there is no merit in this contention. The lease granted by the President in this case is what may be called Lor want of a better term a 'statutory lease'. A statutory form is given in annexure Xi in the Rules. Rules are also statutory. So the entire transaction of lease has a strong satutory flavour. It is not a case of a contractual obligation. It is a case of statutory rights and Ilabilities. The legislature lias defined the rights and liabilites of the Lesser and the lessee. The form of the lease cannot be altered by the President:. The rules say that the lease shall be given in the form in annexure XI. It is thereforee a statutory instrument for all purposes. If the Lesser acts contrary to the terms of the lease, this court will interfere under Art. 226.
(10) But then it is said that the Lesser is the President and he enjoys an immunity. It must be remembered that the frontiers of judicial review have recently been extended. It is true that writ cannot be issued to tile President but it can be issued to those who advise him. He acts on the advice of the cabinet. The writ will thereforee issue to the government asking them to desist from faking .action contrary to the terms of the statutory instrument if the action is unsustainable in view of the terms and conditions of Hie lease.
(11) ART. 361 of the Constitution mates the President immune from any proceedings whatsoever in any court. So writ will not issue to him. But this does not mean that the court is powerless to grant to the citizen a remedy in cases in which it can be established that the President has acted against the terms of the lease. Writ may not be against him; but since he is required in all executive functions to act in accordance with the advice of the council of ministers, writ can be sought against the members of the cabinet or the Government requiring them to advice the President not to act contrary to law. The Privy Council in an appeal from Malaysia has taken this view. Lord Diplock in Teh Cheng Poh v. Public Prosecutor (1980) A.C. 458 has struck this new note. This is a plant of an early and rapid growth. Lord Diplock has brought it into being. We in this country can nourish it.
(12) ART. 361 of the Constitution does not imply that the Central Government as such is exempt from legal proceedings. The exemption granted is purely a personal exemption to the President (See Province of Bombay v. Khushaldas, : 1SCR621 ). This conclusion is reinforced by the proviso to Art. 361 which says :
'PROVIDEDfurther that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Government of India or the Government of a State'.
(13) ART. 300 provides for the sueability of the Government of India and the Government of the State. The framers of our Constitution established a society governed by rule of law. And a Government of laws and not of men. They remembered the words of Thomas Fuller : 'Be you ever so high, the law is above you.' So the Government can be sued for the action taken in the name of the President. I, thereforee, reject the preliminary' objection.
(14) On merits there is precious little in this case. I find everything in order. The basic document is the lease. It is a building lease. Clause 6 is a restrictive covenant. It prohibits the lessee to use the demised land for any purpose other than for purposes of building a residential flat or flats. There is a total prohibition that the lessee shall not, without the written consent of the Chief Commissioner, carry on or permit to be carried on, on the said land and building any trade or business whatsoever.
(15) Counsel for the petitioners contests this interpretation. In the petition he claimed that this clause is ultra virus and prayed for a declaration to tins effect. But that case he did not argue and frankly abandoned it. Now he says that the clause does not mean a total prohibition. According to him a part of the leased land can be used for trade or business provided a part is continued to be used for residential purposes. In support of his submission he has invited my attention to the succeeding two clauses which are in these terms ; (vii) not to sub-divide the said land or building erected thereon or any part thereof without the prior permission of the Lesser in writing; (viii) not to do or permit anything in or upon the demised premises or any part thereof which may be or became a nuisance, annoyance or cause damage to occupiers of other property in the neithbourhood.'
(16) He laid stress on the words 'any part thereof to bring his point home. He contends that these words 'in any part thereof are not used in clause (vi) and thereforee the/lessee cannot be prevented under Jaw from using a part of the premises for trade or business. In other words his case is that if the lessee is using a part of the premises for trade or business there is no breach of the term of the lease and in that event the notice of recently issued by the President is illegal. He has referred me to Indraloke Studie Ltd. v. Shanti Debi, : AIR1960Cal609 . Amrik Chand v.HarbansSingh, 1971 Dlt 125. Firm Himalayan Traders v.Narian dass, 1966 Plr 367 Inder Singh v. Kalu Ram, 1965 Plr 58. Sahebzada Mohammad Kam- gar Shah v. Jagdish Chandra Deo Dhobal Deo, : 3SCR604 and D.D.A. v. D.C. Kaushish, 1973 Rlr (S.C) 614 I am afraid I cannot accept this submission. Such an interpretation of the lease will destroy the lease itself. It will be destructive of the transfer of property which was made with the object of providing of home to the homeless. Never before in history was there such a. gigantic transfer of populations from one country to another. Never before was there such an urgent and pressing need of finding urban habitats for the unsettled.
(17) The lessee cannot challenge the lease. He has taken the land under the lease itself and is enjoying it. The conveyance deed has a similar clause. It says :
'THEpurchaser shall not use the. said property for any other purpose other than the purpose of residence without the previous consent in writing of the vendor or an officer appointed by him in this behalf.'
(18) Now one thing is clear. The dominant intention of the parties at the time of the transaction was to give land for building purposes and to transfer the superstructure in complete ownership of the purchaser with the condition that he shall not use it for any purpose other than the purpose of a residence. If there is a breach, clause (viii) provides :
'INthe event of the breach or non-observance by the purchaser of any of the covenants herein on his part to be observed then in any such case notwithstanding the waiver of any previous clause or right for re-entry, it shall be lawful for the vendor to enter into and upon the said property or any part thereof and to repossess, retain and enjoy the same as of his former estate and the purchaser shall not be entitled to a refund of the 'purchase money or any part thereof or to any compensation whatsover on account of such resumption.'
(19) Both in lease and conveyance only with previous consent in writing of the President of India or an officer appointed by him in this behalf can the premises be used for purpose other than that of residence. The Ministry of Works, Housing and Supply in their letter dated 11-12- 1968 to the Land and Development Officer has, on the subject of leases, laid down a 'rationalised policy'. There are certain named purposes besides residence to which the premises can be put to use by the occupants. For example, one room not exceeding 300 sq. ft. in area can be used by lawyers, doctors, architects, engineers, chartered accountants, business consultants and journalists for their professional work. But only a small part of the premises not execeeding 300 sq. ft. in area can be used for purposes other than that of residence. (Such uses will not be termed as breaches of the lease by the Lesser because he has agreed to such user.
(20) Apart from this there is nothing to show that the lessee has a right under the lease to carry on trade or business in the premises. His right of user is restricted. This is clear from the allotment letter by which he agreed to execute the lease. This is clear from the lease deed itself subject to which he holds the property. In the event of breach there is a right of re-entry in the Lesser. This is also evident from the conveyance deed which vests in the vendor the right of resumption of the built property, 'his firmer estate'. In the event of breach of the terms of the lease the Lesser has a right of re-entry. In the conveyance the vendor has a right of resumption. The rights and liabilities of the parties are clearly defined. The Lesser has issued notice to the lessee for breach of the terms of the lease. This is perfectly in accordance with the indenture of lease. The notice is strictly in terms of the lease. It cannot be challenged on the ground that the lessee has a right to use a part of the premises for trade or business.
(21) I need not discuss the authorities cited by counsel for the petitioners. They are rulings under the Delhi Rent Control Act 1958. Under the Rent Act it was held that user of the premises for a purpose other than that for which they were let under section 14(l)(c) must be of the whole of the premises let and not of part only. For this view Tatachari J. in Amrik Chand (supra) relied on Firm Himalayan Traders v. Narain Dass, and Inder Single v. Kalu Ram, (supra). These are cases of statutory interpretation. Here we are not to interprete a statute. We have to interpret the terms of a document. A lease is a transfer of property. So is conveyance a disposition of property. The intention of the parties to both these documents is to give a building lease for residential purpose as I have said. To effectuate this intention provision is made for forfeiture of the lease is one document and resumption of the property in the other. Even an out and out sale is subject to the right of resumption. These documents clearly attest the fact that the lessee or the purchaser cannot carry on trade or business in the premises or any part thereof. The whole will include the part. On the interpretation of the lease and the conveyance deeds in this case I have no manner of doubt that the absence of the words 'in any part thereof in clause (vi) does not give a license to the lessee to use a part of the land or for that matter a part of the house for purpose of trade or business.
(22) In the case of sub-division to which clause (vii) relates the rule of law is different. Where a covenant against alienation does not clearly indicate that alienation of even a part of the leased premises .is prohibited, subletting of the part of the premises will be valid according to English decisions. Thus the words 'no subletting allowed' or 'I agree not to sublet' have been read not to bar subletting of a part of the leased premises (Church v. Brown. (1808) 33 Er 752, Cook v. Shoesmith (1951) 1 K.B. 752. See also Chitaley on Transfer of Property (4th ed) Vol. 3 page 195). Indraloke Studio Ltd. v. Shanti Devi (supra) restates the English principle and refers to Church v. Brown and Cook v. Shoesmith (supra). That is the English law against alienation. In my opinion clauses 7 and 8 did not assist us in interpreting clause 6 which, I think, must be construed on its own terms.
(23) For these reasons the writ petition is dismissed. But in the circumstances of the case I leave the parties to bear their own costs.