M.L. Jain, J.
1. A perpetual lease was executed on 16-10-1920 between the Secretary of State for India in Council and Edward Keventer of Aligarh Dairy Farm, Aligarh, in respect of a plot of land measuring 22.95 acres situated on Kitchner now Sardar Patel Road. New Delhi, on a premium of Rs. 5738.8.00 and annual rent of Rs. 286.14.00. The lease was granted for construction of a dairy farm according to the plan approved by the Chief Commissioner, Delhi, or his delegate. The said dairy farm was accordingly built and set up. The lease was transferred to the present petitioners, namely, Edward Keventers (Private) Ltd. sometime in 1946.
2. Conditions (5) and (6) of the lease provided that the lessee will not without consent of the said Chief Commissioner or a duly authorised officer appointed by the Governor-General erect or suffer to be erected on any part of the premises any buildings other than and except the dairy farm buildings, make any alteration in the plan or elevation of the said dairy or attached buildings or carry on or permit to be carried on the said premises any trade or business other than that of a dairy farm or use of the same or permit the same to be used for any purpose other than that of a dairy farm. Clause (12) inter alias provided that if there shall have been, in the opinion of the Chief Commissioner or such officer or body as the Governor-General in Council may authorise in this behalf, whose decision shall be final, any breach by the lessee or by any person claiming through or under him, of any of the covenants or conditions on his part to be observed or performed, then, arid in such case, it shall be lawful for the Lesser or any person or persons duly authorised by him, notwithstanding the waiver of any previous cause or right of re-entry upon any part of the premises or of the buildings thereon in the name of the whole to re-enter and thereupon the demise and everything therein shall cease and determine and the lessee shall not be entitled to any compensation whatsoever. T have referred to the substance of these clauses because the case hinges upon what view I take of these provisions and I will have a little later some more occasion to deal with them.
3. It was alleged by the petitioners that for sometime past, the respondents have been trying in one way or the other, to acquire or take over the land demised as aforesaid. The first attempt was made by them sometime in 1950 when a notice under Section 4(1) of the Land Acquisition Act, 1894 was issued proposing to acquire the land. By an award dated 13-10-1952, the petitioners were awarded compensation in the sum of Rs. 34.36 lakhs. But by a letter dated 26-12-1952 they denied that any such award had at all been made. On 5-1-1953, the petitioners filed a writ petition in the High Court at Simla. On 8-1-1953, the respondents made a new award reducing the compensation to a paltry sum of Rs. 4 lakhs. The respondents at first refused to produce the earlier award of 13-10-1952, but they yielded to do so upon the directions of the High Court. By its judgment dated 20-10-1953, the said High Court held that the award of 13-10-1952 was a valid award and that the Land Acquisition Collector must, in order to take possession of the property acquired, pay compensation on the basis of the said award or in the alternative withdraw the acquisition. In the year 1953-54 the respondents dropped the acquisition proceedings. The petitioners claimed compensation from the respondents under Section 48(2) of the Land Acquisition Act and succeeded in extracting a compensation in the sum of Rs. 1,76,765 in the year 1957. Meanwhile, on 29-12-1955, the Land and Development Officer of the Government of India (herein L&DO;) issued a notice (annexure B) that breaches of Clauses (5) and (6) of the said lease deed have been committed by construction of sheds and by deviations from the approved plan and that unless the matter was rectified within 20 days, orders for re-entry would be made. The petitioners replied on 17-1-1956 to the Secretary, Local Self-Government, Delhi State, that the alleged breaches had been committed by their predecessors. Yet they had submitted plans for alterations and additions on 26-9-1955 and 23-12-1955 which may he sanctioned. On 25-1-1956, a letter was also addressed to the L&DO; requesting him to abstain from taking any action.
4. On 18-2-1960 a notification under Section 15 of the Delhi Development Act was issued calling upon the petitioners to show cause why the said demised land be not acquired for purposes of development under the said Act. A further notice was issued on 12-4-1960. But the respondents cancelled the said notification of 18-2-1960 by an order of 13-5-1962.
5. On 16-5-1962 the respondents sent to the petitioners a notice alleging that many of the breaches which had been pointed out in the notice of 29-12-1955, were still confirming, and the petitioners were called upon to show cause within 15 days why re-entry be not effected against the petitioners, but after some correspondence, the breaches up to 14-7-1965 were condoned upon payment of ground rent and damages specified by the L&DO.;
6. Again on 8-3-1967 the L&DO; informed the petitioners that certain breaches of covenants were committed and further ground rent could not be accepted unless the breaches were regularised to the satisfaction of the Lesser. By letter dated 26-6-1967, the petitioners requested the L&DO; for regularisation of the alleged breaches of the lease for good or for a period of five years or at least for one year. By letter dated 3-9-1968 the L&DO; informed that the matter was receiving attention. Several reminders thereafter were sent by the petitioners but without any response.
7. However, on 20-12-1969 the L&DO; sent a notice calling upon the petitioners to remedy the breaches within 30 days failing which action under the terms of the lease would be taken. He listed 27 items of breaches committed by the petitioners out of which 1 to 26 had stood regularised up to 14-7-1965. The item No. 27 related to further unauthorised construction of 103 labour huts. On 31-12-69, the petitioners wrote to him that even with regard to the alleged breaches stated in item 27 of the letter of 20-12-1969 the petitioners were ready and willing to pay the necessary damages. On 8-4-1971 the petitioners again wrote to the L&DO; praying that the petitioners be informed of the amount which they had to pay in the matter of regularisation with effect from 15-7-1965 till date. On 14-5-1971 the petitioners received a letter by which they were called upon to pay damages to the tune of Rs. 1,69,000/- for a period of approximately six years as consideration for regularisation within 30 days. On 19-5-1971, the petitioners wrote that the petitioners had been at all times in the past and were still trying their best to remedy the alleged breaches and had even filed nearly 109 eviction cases against the unauthorised occupants and trespassers. They accepted all the terms but in respect of damage^ they requested the L&DO; to give the basis on which damages were calculated. The petitioners also requested him to render help in (he matter of eviction of the trespassers. On 5-6-1971 the L&DO; informed that the cheque for ground rent which had been sent by the petitioners could not be accepted until all the breaches of the lease are either remedied or regularised by payment of charges for these breaches in full. On 16-6-1971 the L&DO; told the petitioners that the respondents were not concerned with the removal of the unauthorised huts and that they could pay the damages within 60 days if they paid interest. On 24-6-1971 the petitioners repeated their request regarding the basis on which the damages were calculated. It was also pointed out that several huts in respect of which the petitioners had been called upon to pay damages were not even situated within the demised premises. In respect of the others, more than 50 decrees for ejectment were obtained and most of them were actually dispossessed and the jhuggies built by them were demolished. On 3-7-1971 a personal meeting was held between the representatives of the petitioners and one S.P. Jain of the L&DO.; It was agreed that the L&DO; would consider the question of quantum of damages, meanwhile the petitioners may commence the payment of damages claimed under the letter dated 14-5-1971 in Installments of Rs. 4000/- per month. The petitioners also agreed to pay interest at the rate of 8 per cent per annum on delayed payment. The petitioners accordingly made several payments towards arrears of Installments of damages for regularisation and interest on the delayed payment. Yet on 9-11-1972 the L&DO; stated that he had determined the lease and re-entered the demised premises with effect from 9-7-1971. And on 30-11-1972 all the cheques of about Rs. 80,000 were returned to the petitioners. The petitioners have even thereafter sent cheques of the amounts due to the respondent but the same have been returned.
8. The L&DO; then made a request to the Estate Officer to take action against the petitioners under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The Estate Officer made an order on 9-2-1976 directing the petitioners to vacate the said land holding that the petitioners were unauthorised occupants of the public premises and directed them to vacate the plot within 30 days. He also issued a notice in prescribed form on 13-2-1975. The petitioners filed an appeal. The Additional District Judge dismissed the appeal on 14-5-1976. In between the petitioners had also filed a writ petition but the same was withdrawn as the appeal against the order of the Estate Officer was then pending.
9. The present writ petition was filed on 22-5-1976 praying that the impugned notice dated 20-12-1969, the order of re-entry dated 9-11-1972 and the orders of 9-2-1976 and 13-2-1976 and also the order dated 14-5-1976 be quashed and a writ be issued commanding the respondents to refrain from dispossessing the petitioners from the demised premises.
10. The petitioners in short contend that the alleged breaches are no breaches and if there be any the same have been condoned. No forfeiture of the lease has taken place and if any has, it stands waived by the conduct of the respondents and course of events. The action of the respondents is mala fide and against the policy of liberalisation in the administration of Nazul lands, vide the circular letter of the Ministry of Health and Family Planning of 18/19-2-70 and the instructions issued by the Ministry of Works and Housing on 31-12-1968, entitled 'Information for the guidance of leaseholders'. At any rate, the respondents cannot re-enter upon the entire area and can only demand reentry in the portion on which huts are standing.
11. In the counter affidavit, it is stated that on 11-9-69, 129 jhuggies stood on the demised premises. The structures were raised without authority and were being used for residential purposes in contravention of terms of the lease. The impugned notice was, thereforee, issued on 20-12-1969. The re-entry was approved by the Lt. Governor on 9-7-1971. The approval of the Ministry of Works & Housing was also obtained on 29-3-1972 and the re-entry was communicated on 9-11-1972. Out of 22.95 acres of land for running a dairy farm the petitioners were using only 4 acres. The rest of the land is either lying vacant unutilised or the petitioners have allowed unauthorised construction of Jhuggies, etc. It was for the petitioners to have bounded the area at their own cost as soon as site was leased out to them to avoid any possible encroachments. The petitioners are misusing the land by not putting it into use for which it was leased out. If the petitioners had meant to provide accommodation for their employees/labourers, they were required to submit the plans for the construction of quarters to the local body and then to the Lesser for sanction under the Municipal bye-laws and under the lease respectively,. All the Jhuggies reported to have been constructed on the leased site are within the knowledge and connivance of the petitioners. In the year 1961 there were 26 Jhuggies, in the year 1969, they rose to 129. The latest inspection report is that of 19-2-1976 according to which number of Jhuggies was 106. The damages for the unauthorised construction were calculated in accordance with the rent rates which were prescribed by the Government from tune to time for the commercial establishments and which were indicated in the letter dated 14-5-1971 showing damages charged from time to time. The petitioner's representative did meet the L&DO; on 3-7-1971, but the respondents did not agree to grant Installment and their cheques were returned for that reason and action for eviction of the petitioners was undertaken. The Estate Officer had gone into all the aspects before passing the order of eviction on 9-2-1976. The circular relied upon by the petitioners does not permit the leaseholders to misutilise the land. The booklet 'for information and guidance of the leaseholders' is a general guidance for the lessees and gives no right to the petitioners. There has been no waiver of the breaches by regularisations made from time to time. The right of re-entry always remained with the respondents and it was never condoned or waived. It was only postponed subject to the condition that the petitioners were to pay consideration for the postponement of the right of re-entry as well as undertook to remove the breaches on or before 14-7-1971. The petitioners instead added 103 more unauthorised construction on the lease site as noticed in the inspection report dated 15-9-1969 which was a fresh breach of the terms of the lease deed and gave a fresh cause of action. Re-entry of a portion of the premises is not provided anywhere in the lease deed. As a matter of fact, unauthorised construction can never be condoned. Since the petitioners failed to comply with the requirements within the stipulated period, the Lesser had to resort to action to exercise the right of re-entry as the petitioners neither made a dairy farm nor surrendered the land to the Lesser to enable the Lesser to utilise the land in public interest.
12. In the rejoinder, the petitioners have stated that file petitioners had attempted to prevent the alleged constructions by not only instituting eviction proceedings but also issuing notices to unauthorised occupants and by requesting the authorities including the L&DO;, the Delhi Development Authority and the New Delhi Municipal Committee and also the police to help the petitioners in demolishing the said constructions. However, on 29-6-1976 during the emergency the said unauthorised constructions were demolished by them. The petitioners were always and are ready and willing to pay the damages. The fact that the charges were computed on the basis of the land rates prevailing for the time being was never earlier communicated to the petitioners and has been disclosed for first time in the counter affidavit.
13. I have heard the parties.
14. The very first question that arises in this case is whether the lease deed shall be governed by the Crown Grants Act, now entitled the Government Grants Act, 1895 or by the Transfer of Property Act, 1882. The petitioners invoked the Government Grants Act, but the respondents in their counter affidavit did not rely upon it. However, Mr. Watel now took up the position that it does apply. Mr. Venugopal has in the alternative contended that the lease being for industrial purposes is not a grant contemplated by the Government Grants Act and will be governed by Sections 106 and 116 of the Transfer of Property Act.
15. Sections 2 and 3 of the Government Grants Act are:
'2. Nothing in the Transfer of Property Act, 1882 contained, shall apply or be deemed over to have applied to any grant or other transfer of land or of any interest therein heretofore made or hereafter to be made (by or on behalf of the State) to, or in favor of any person, whomsoever, but every such grant or transfer shall be construed and take effect as if the said Act had not been passed.
3. All provisions, restrictions, conditions and limitations over, contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor, any rule of law, statute or enactment of the legislature to the contrary notwithstanding.'
Several decisions were cited to expound the true implications of these two short sections. I need not refer to all of them and will content myself with only those of the highest pursuasive or compulsive authority. The Supreme Court in The Collector of Bombay v. Nusserwanji Rattanji Mistry and Ors., : 1SCR1311 , observed that the Transfer of Property Act does not apply to Crown Grants. But reading the enactment as a whole, the scope of Section 3 is that it saves 'provisions, restrictions, conditions and limitations over' which would be bad under the provisions of the Transfer of Property Act, such as conditions in restraint of alienations or enjoyment repugnant to the nature of estate, limitations, offending the rule against perpetuities and the like. But in the State of U.P. v. Zahoor Ahmed and Anr., : 1SCR344a , it was held that the scope of the Government Grants Act is not limited to affecting the provisions of the Transfer of Property Act only. The Government has unfettered discretion to impose any conditions, limitations or restrictions in its grants, and the right, privileges and obligations, of the grantee would be regulated according to the terms of the grant, notwithstanding any provisions of any statutory or common law. However, as held in Thakur Jagannath Baksh Singh v. The United Province (3), the general words of Section 3 of the Govt. Grants Act cannot be read in their apparent generality. They must be read with reference to the general, context and cannot be construed to extend to the relations such as between a sanad holder and his tenants. Still less can they be construed to limit the statutory competence of the Legislature under the Constitution Act. All decisions, thereforee, which are contrary to Thakur Jagannath Baksh Singh (supra) are of no moment. Consequently, I am in respectful agreement with the decisions handed down in Mathra Dass v. Punjab Province (4) Raisaheb Chandanmul Indrakumar Private Ltd. v. State of Orissa and Ors. : AIR1972Ori40 , and Tek Chand and Ors. v. Union of India and Anr. . I hold that though a Government grant is to be regulated by its own terms irrespective of the Transfer of Property Act or any other law, yet no State can bind itself not to enact in future any law which it is, albeit subject to the Constitution, competent to make on the subject matter of the grant and such Law can expressed or by implication repeal or revoke or modify not merely any or all of the provisions of the grant or transfer but also the Government Grants Act itself. thereforee, every Government Grant made at any time shall be subject to the law enacted after 1895 prospectively or otherwise. This is so because a statute applies to State as much as it does to a citizen unless it expressly or by necessary implication exempts the State from its operations: Superintendent and Remembrancer of Legal Affairs, West Bengal v. Corporation of Calcutta : 1967CriLJ950 , and Union of India v. Jubbi : 1SCR447 . It is further subject to any future executive action, which must necessarily be determined by the needs of the community when the question arises, as the Government cannot by contract hamper its freedom of action in matters which concern the welfare of the State; Rederinktiebolaget Amphitrite v. The King (1921) 3 K. B. 500 (9), and Antonio Buttigieg v. Captain Stephen H. Crops and Ors. AIR 1947 P.C. 29 (10). Whether a particular transfer is a grant governed by the Government Grants Act or not is a mixed question of law and fact; Delhi Simla Catholic Archdioscese v. State of UP. and Ors. AIR 1980 Delhi 251 (11). The character of the land, the manner of making the lease and its contents in this case all indicate that the lease in question was a Government grant and in the absence of any legislation prior or posterior thereto on its subject matter the lease shall take effect according to its tenor and will not be regulated by the provisions of the Transfer of Property Act unless justice, equity and good conscience require that the principles contained therein should be applied Chiragh Din v. Muhammad Usman Khan and Ors. AIR 1924 Lah. 281 (12).
16. Mr. Watel having succeeded in this contention then proceeded to urge that 'in that case, the writ petition will not be maintainable as it seeks to enforce the contractual rights under the lease. He relies upon M/s Radhakrishna Aggarwal v. State of Bihar and Ors. : 3SCR249 it was said in that case that after the State or its agents have entered into the field of ordinary contract, the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines the rights and obligations of the parties inter se. The question which normally arises in such cases is whether the action complained of is or is not in consonance with the terms of the contract and no question of any fundamental right arises. But it seems to me that in Radhakrishna (supra) the court was rather weighed by consideration of the Presidential Proclamation under Article 359 under which enforcement of fundamental rights falling under Article 14 remained suspended. The next case cited in this regard is Jasjeet Films (Pvt.) Ltd. and Anr. v. Delhi Development Authority and Ors. : AIR1980Delhi83 wherein it was observed that 'since the transaction is entirely in the realm of contract, the petitioners will have to file a suit to enforce the specific performance of the contract or to claim damages by means of a civil suit. Writ petition is not a remedy for enforcing contractual obligations. But in Fertiliser Corporation Kamgar Union, Sindri and Ors. v. Union of India and Ors. AIR 1981 SC 344 (15), the court said that the right conferred by Article 226 can be exercised not only for the enforcement of fundamental rights but for any other purpose. It was said in Calcutta Gas Co. v. State of West Bengal : AIR1962SC1044 , that a writ can be issued even to enforce contractual rights. The contention of the petitioners is that he has committed no breach of the covenants of the grant and yet he is being evicted in an arbitrary manner which violates Article 14 at any rate Article 300A and Article 19 of the Constitution. On account of Presidential Proclamation under Article 359, Article 14 was not avail-able to the petitioners in 1976, but it is available now even in respect of past actions. That is what was said in Madan v. Union of India, : (1978)ILLJ406SC . The position has been made clear by Clause (1A) of Article 359 inserted by Constitution Fourty fourth Amendment. The petitioners can challenge any arbitrariness of the Government even in case of contracts and leases. The power of the Government is confirmed and structured by rational relevant and non-discriminatory standard or norm and if the Government departs from such standard or norm in any particular case of cases, the action of the Government would be liable to be struck down unless it can be shown that the action of the department was not arbitrary but was baaed upon some valid principle which in itself was not irrational, unreasonable or discriminatory. Bamana Dayaram Shetty v. The International Airport Authority of India, and others, : (1979)IILLJ217SC , and Kasturilal Laxmi Reddy v. The State of J and K and Anr. : 3SCR1338 . According to M.A. Rasheed and Ors., v. The State of Kerala, : 2SCR93 , even where a matter rests upon subjective satisfaction, the court will not readily defer the collusiveness of the executive authority's opinion. The criterian of reasonable conduct is not subjective but objective. The petitioners also contend that the Government is bound by promissory estoppel and cannot act in an arbitrary manner. They rely upon Century Spinning and . and Anr. v. Ulhasnagar Municipal Council and Anr. : 3SCR854 . They further contend that on the basis of a perpetual lease and of subsequent acts of condensation and waiver, they have altered their position and the state cannot be permitted to arbitrarily and in a manner mala fide revoke the lease. In the State of Orissa v. Madangopal Rungta : 1SCR28 and State of Orissa v. Ram Chandra Dev, : AIR1964SC685 , it was laid down that the existence of a legal right be it fundamental or not, is the foundation of a petition under Article 226. Ordinarily, where property has been granted by the State on conditions which make the grant resumable and the grantor State seeks to recover possession (if the property without filing a suit, the grantee can ask for an appropriate writ or order or direction under Article 226 if the title of the grantor can be determined in the writ proceedings themselves and the parties are at issue on the question about the character of the grant. In this case, the petitioners are claiming not on the basis of long possession or on the basis of a mere contract but on the basis of conveyance of interest and grant which is not resumable at will. It is true that in such cases the usual remedy lies by way of suit but in the circumstances stated above, a suit does not seem to be an appropriate remedy and the only way to stop the State from acting in an arbitrary and capricious manner is to seek recourse to Article 226. The writ cannot be thrown out for one more reason. It is the order of the Estate Officer and the Additional District Judge that are in fact under challenge in this petition and it is while examining the validity of these orders that the question of revocation of lease and hence unauthorised occupation arises. I, thereforee, reject the objection of Mr. Watel and hold that the writ is maintainable.
17. As to merits, the case of the Government is that they have a right of re-entry because Clauses (5) and (6) of the lease have been contravened inasmuch as without consent in writing of the Chief Commissioner or a duly authorised officer, the lessee has erected and suffered to be erected on some portion of the premises buildings other than convenanted to be erected, and have thus used the said premises or permitted the same to be used also for a purpose other than that of a dairy farm.
18. In Raja Rajinder Chand v. Mst. Sukhi and Ors., : 1SCR889 , it was observed that the ordinary rule is that grants made by the sovereign are to be construed most favorably for the sovereign, but if the intention is obvious, a fair and liberal interpretation must be given to the grant to enable it to take effect; and the operative part, if plainly expressed, may take effect notwithstanding qualifications in the recitals. In cases where the grant is for valuable consideration, it is construed in favor of the grantee, for the honour of the sovereign and where two constructions are possible, one valid and the other void, that which is valid ought to be preferred, for the honour of the sovereign ought to be more regarded than sovereign's profit. Mr. Venugopal also referred to Sahebzada Mohammad Kamgarh Shah v. Jagdish Chandra Deo Dhabal Deb and Ors. : 3SCR604 , and Krishna Beharilal v. Gulabchand and Ors. : AIR1971SC1041 , and Delhi Development Authority v. Durga Chand Kaushish : 1SCR535 , and urged that the ordinary rules of construction of a document are (1) to give effect to the normal and natural meaning to the words employed in the document and (2) a grant has to be interpreted strictly against the grantor and in favor of the transferee particularly when it is capable of two interpretations. So construed, the Jhuggies and other structures complained of cannot be called buildings so as to constitute a breach of Clauses (5) and (6) of the covenants. According to him, building to an enclosure of brick or stone work covered by a roof, vide Moir v. Williams (1893) 1 Q.B. 264 (28). It was never intended to cover the structure of mud plaster covered with roof of grass or tin. He also referred to Richard Powell v. John George Boraston 18 CB 175 (29). In that case, a shed made of wood having four boarded sites and a boarded roof and being a supported by four posts let into the ground three feet, was not considered a building because it was not of a substantial character nor was it adopted to, nor intended for residence, warehouse, counting house, shop or other analogous building for commercial purposes within 'the meaning of Reform Act to give a voting right to a farmer. This case rather supports the case of the respondents because the structures are used for residential purposes. Mohd. Umar v. Fayazuddin and Ors. AIR 1924 Lah. 172 (30), was a decision relating to Section 16 of the Punjab Pre-emption Act. The word building or structure was not defined In the Act. The court observed that every building is structure, though every structure is not at building. The word structure can be applied to a well or a shed or any other substantial erection for which the word 'building' cannot be used. So, it was urged that sheds will not be building. Mr. Venugopal then referred to Section 442 of the Indian Penal Code where the word 'building' has occurred. It was held in Makhan v. Emperor, that the ordinary and usual meaning of building is a block of brick or stone work covered by a roof. If an open piece of land is surrounded by a wall, it would probably be impossible to call it a building. But in Salig Ram and Ors., v. Emperor AIR 1961 Oudh 109 (32), it was held that building in its general sense is anything builtor constructed, and a thatch-hut built for residence is a building.
19. Considering all these citations, it seems to me that the question whether a structure is a building or not is a question to be answered on the facts of each case. If can not have a fixed connotation and varies from country to country, from place to place according to the climatic conditions, availability of materials for building purposes and the habits and notions of the people with regard to their residence: Dalchand v. The State (33). Even a roof is not necessary for a structure to be called a building: Ghanshiam Das v. Debi Prasad and Anr. : 3SCR875 . And in the facts of this case, I am unable to subscribe to the argument that the temporary tinshed or construction without foundation and without brick and stone will strictly not be a building. To my mind, the ordinary and usual meaning which is contemplated by the lease deed will be any structure enclosing the space within its walls with or without roof, if the structure is designed for inhabitation or shelter, storage, trade, manufacture, worship business, teaching and the like.
20. The next contention of Mr. Venugopal is that the huts even if they are said to be buildings, will not constitute a breach by the petitioners of covenant (5) for the reason that these structures were put up by trespassers and employees without the authority of the petitioners and suitable steps have been taken for demolition and eviction. The petitioners had filed suits for eviction and had requested the various authorities concerned which refused to demolish the structures and remove the trespassers which they, however, have done so at the time of emergency. The learned counsel maintained that if there is no breach, then there is no forfeiture under Clause (12) of the lease. Relying upon K.P. Raman Menon v. Malabar Forest, Rubber Co. Ltd. AIR 1935 Mad 163 (35), Kuchwar Lime and Stone Co. Ltd. v. Secretary of State : AIR1936Pat372 (36), and Keshabchandra Sarkar v. Gopalchandra Chanda : AIR1937Cal636 , he argued that the principle governing the construction of clauses of for feiture is that it must always be construed strictly as against the Lesser or the person who is trying to take advantage of it and effect should be given to it only so far as it is rendered absolutely necessary to do so by the wording of the clause. There is no power of retrospective forfeiture reserved in the lease deed and yet the letter of 9-11-1972 directs forfeiture from 9-7-1971 that is by one year and three months retrospectively, and, thereforee the act of forfeiture is against the terms of the lease and consequently invalid. There is not even a case that Clause (6) has been violated and yet the notice talks of breach of Clauses (5) and (6). Mr. Venugopal alternatively submitted that even if the forfeiture is in accordance with the terms of the lease, it stands waived and that is evident from the conduct of the Lesser. The alleged breaches had stood there admittedly for the last 28 years but action was initiated in 1972. Even after the notice of December, 1969, the Government demanded and accepted rent and negotiations for condensation and regularisation went on so, much so that at one stage the L&DO; allowed payment in Installments with interest at 8 per cent. Nothing was done for 15 months. This conduct amounted to waiver of forfeiture. He relied upon Janardan Swarup and Ors. v. Devi Prasad and Ors. : AIR1959All33 . Even if there is no waiver, the forfeiture should not be permitted to operate in respect of the entire area of the lease. Only an area of 16,000 sq. ft. can at best be said to have been misutilised out of the total of 10 lac sq. ft. and since that portion of land is separable, relief may be granted by allowing only a partial forfeiture that is in respect of the area occupied by the huts and consequent apportionment of rent. He relies upon GMS Syndicate v. Gary Elliot Ltd. and Ors. (1981) 1 All E.R. 619 (39), for this proposition. But this case does not apply. There the Lesser had forfeited the whole of the leased premises, namely, the ground floor and the basement on account of breach of a covenant caused by misuse of the basement by the sub-lessee therein. The court relieved the lessee by restraining order of possession of the basement only. But the learned Judge felt uncomfortable in doing this. He took pains to emphasise that he did not intend to go beyond the circumstances of that case because the two parts of the demised property were physically separate one from the other and the main aim of the Lesser was to remove the sub-lessee and he had no objection to the Lesser continuing in occupation of the ground floor. The learned Judge was unable to say what would have happened if the circumstances had been different. He had devised a solution because the order of possession of the basement will not cause any difficulties, nor the order made by him would operate as surrender by the lessee. It was urged that the lease in question was envisaged as a severable one. Clause (11) of the lease contemplates that the lessee can transfer or assign any of the leased premises. Clause (12) also contemplated that the Lesser' can re-enter on a part of the premises. The respondent did not apply its mind to this aspect of the matter. I do not think that the lease can be considered separable in this case and if the forfeiture is to apply it has to apply in terms of the lease deed itself to re-enter the whole or the part in the name of the whole. But this fact can certainly influence the court in permitting forfeiture or not. However, upon a consideration of the events, it appears to me that there was never an intention to forfeit the lease because the huts have been raised. As a matter of fact, a lenient and not too literal or strict a view can be taken in such cases, specialty in cases of perpetual lease. The purpose of the lease was to raise a dairy farm and that was done. All along, the Lesser has been over-looking and condoning these structures and regularising them on payment of damages. The only dispute was about the quantum of damages demanded in the last of its communications.
21. When pursuant to the order of re-entry of 9-11-1972 the L&DO; initiated proceedings for eviction of the petitioners before the Estate Officer, it was his case that terms of regularisation of tile unauthorised construction for the period up to 14-7-1971 were offered by the L&DO; to the lessees vide letter dated 14-5-1971 but the same were not complied with by the lessee within the stipulated period. In spite of sufficient opportunities given to the lessee the breaches were neither remedied nor regularised, and the premises were re-entered with effect from 9-7-1971. The Estate Officer issued a show cause notice on 22-10-1973 under Section 4(1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. There also the matter remained under negotiations amongst the parties. The petitioners had challenged the validity of revocation and re-entry and the amount of damages before the Estate Officer. But the learned Estate Officer was of the view that it was not within his competence to interfere with the order of re-entry after termination of the lease. He accordingly directed their eviction. The learned Additional District Judge rejected the appeal of the petitioners but did examine the question of re-entry and the amount of damages. He was of the view that the unauthorised constructions which stood on the demised area would constitute breach of the terms of the perpetual lease, vide covenant (5) and the Government was justified in cancelling the lease for such unauthorised constructions. With regard to damages he observed that it was not a case of calculation of damages for unauthorised occupation under the Public Premises Act but a case of terms offered by the Government for condensation of breaches of the lease. The liberalisation, policy of the Government of India, vide their letter No. 27(6)/ 63-L-II dated 18/19th February, 1970 cannot be held to be a legislative measure so as to bind the Government by any formula do principle in this regard. In the letter dated 14-5-1971 ground rent was being claimed at Rs. 286.87 per annum and damages have been calculated for unauthorised construction for different periods at different rates. The Government was not bound to disclose the basis or formula on which the damages were calculated. These calculations cannot be struck down as illegal being opposed to the aforesaid circular letter dated 18/19th-2-1970. The condensation of breaches is a discretionary measure and no interference was possible with the terms imposed by the Government of India for regularisation of the breaches on the ground that the terms were onerous or were discriminatory. More so, because Article 14 had been suspended. Mr. Venugopal attacked these orders on the ground that the Estate Officer and the Addl. District Judge were in error in holding that they could not examine the question of validity of re-entry or the quantum of damages. They were wrong in thinking that the Government was not bound to disclose the formula for fixing the damages. Upon consideration, I am inclined to agree that the Estate Officer and the appeal court were not entitled to examine the question of revocation and re-entry in view of Dr. K.R.K. Talwar v. Union of India, : AIR1977Delhi189 , which did not permit judicial review of revocation of the lease. The question of damages also fell outside (heir authority because these were not the damages to be fixed for unauthorised occupation under the Public Premises Act, but a sort of penalty for regularisation of the breaches. But this court can certainly examine the question whether having agreed to regularise the alleged breaches en payment of damages, the Government can ask for an amount which will be excessive and unreasonable.
22. Mr. Venugopal contended that the respondents could not ask for damages for regularisation there being no provision in the lease deed and could at any rate not do so without being arbitrary if they fail to show the basis on which the damages were being assessed. The Lesser can only levy a charge by increasing the ground rent from its revision. According to the policy of the Works & Housing Ministry, as followed by the L&DO;, such levy is only a token of 1 per cent damages calculated on the basis of the formula given in annexure NN. But the notice dated 14-5-71 purporting to forfeit the perpetual lease deed and offering to regrant it by levying damages 100 times the ground rent is arbitrary and contrary to all principles of natural justice. He further contended that the alleged breaches are not continuing breaches but single breaches and, thereforee, once they have been regularised no further action can be taken on the basis of the breaches. Waiver or payment of damages would obliterate breach and the same cannot be used over and over again for demanding damages and exercising right of re-entry. He relied upon Amulya Charan De v. Corporation of Calcutta and Ors. : AIR1950Cal256 .
23. I have considered over this aspect and it appears to me that the stand of the Government has been that in order to avoid immediate revocation of the lease and re-entry in terms of the instrument the petitioners must remove the unauthorised construction within the specified time and until then they must pay damages for condensation from time to time which shall be and was only temporary. The stand to defer the civil consequences of the default is permissible in terms of the grant because the revocation of the lease is in the discretion of the Government. I also consider that the damages which are being charged are not excessive and are charged in pursuance of a uniform policy without any discrimination between the leaseholders which are un-seen. I, thereforee, reject the argument that the damages cannot be charged or the amount is arbitrary or excessive. But it appears reasonable to hold that the petitioners were and are willing to pay the damages from 15-7-1965 to 14-7-1971 as specified in letter dated 14-5-1971. They alleged that they had by 23-10-1972 sent cheques to the tune of Rs. 80.000/- which were returned on 30-11-1972. In these circumstances, the Government was not justified in directing resumption of the perpetual grant.
24. Now the question of mala fides. It was pointed out by the petitioners that the property was at first acquired, but the Government refused to pay the compensation and even refused to disclose the award. Thereafter the compensation amount was reduced almost to nothing and then the Government gave up idea of acquisition. Then the DDA wanted to acquire the plot but ultimately it had also to retrace the steps. Mention was also made in the Master Plan that the area of the dairy was non-conforming user and should be discontinued and that area two schools be shifted. This was done it is alleged to defeat the rights of the petitioners. They also complain that after regularisation of the breaches alleged to have occurred on account of the so-called unauthorised construction, no sufficient time was given to pay the damages. Some money they had paid. Some was adjusted towards charges other than ground rent and the rest was returned. In the notice of 1969, the respondents had only pointed out the variations and unpermitted constructions while in the counter affidavit they have added one more grievance that out of the total area of 23 acres only 4 acres are being used for diary purpose and the rest of it is lying vacant, which should have been surrendered for being put to greater public use instead of being used for raising sheds. It is the further grievance of the petitioners that the respondents were estopped from issuing any notice or order as they had been from time to time making representations clear and unequivocal to the petitioners up to 19-7-1971 that if they paid the damages demanded, the breaches would be regularised and re-entry in the premises shall not be affected and yet they determined the lease on 9-11-1972 with effect from 9-7-1971, without caring to take into consideration the very material said relevant facts that the breaches had occurred for reasons beyond the control of the petitioners and in spite of all possible and practicable steps taken by them. Further it is now disclosed that the opinion to resume was formed on 6-7-1971 and the Lt. Governor approved re-entry on 7-7-1971 before Waiting for the date line of 14-7-1971 to expire. This clearly indicates that the decision to re-enter was not only premature and the real motive for re-entry and eviction was not the breaches complained of which were mere pretence for an attempt on the part of the respondents to grab the land without due process and compensation. From the aforesaid events one will not be, I believe justified in inferring mala fides straight-a Way but one certainly is left with the impression that the breaches are not being regularised or allowed to be remedied under any reasonable cause. It was, thereforee, urged by Mr. Venugopal that the respondents should not be permitted to succeed in their attempt and the impugned orders be set aside in the interest of justice in the interests of the dairy and in the interest of a large number of employees who have been thrown out of employment, for the last several years and it is appropriate that the petitioners be allowed to rectify the breaches upon payment of reasonable damages and the industry be allowed to re-start. Rather, Government should further be directed to help the petitioners in their desire and. effort to remove whatever trespassers and other unauthorised occupants there are. I agree with these submissions that the Government ought to be held bound by the same standards of rectilinear rectitude that it demands of its citizens.
25. thereforee, after considering the submissions and all aspects of the case, I direct that--
(1) The impugned notice and orders shall be quashed.
(2) The breaches complained of be regularised uptil 14-7-1971 on payment of damages demanded in the letter of 14-5-1971 and on payment of further damages calculated on the same basis for period subsequent to 14-7-1971. The petitioners shall after a demand conveyed in this behalf pay the damages within a period of three months. The petitioners shall obtain requisite sanction for the plans for construction of quarters and if for any appropriate reason no sanction is given, then remove the unauthorised structures within a period of one year. If they fail in these conditions the Government shall be at liberty to evict the petitioners and this writ petition shall be deemed to have been dismissed.
(3) There shall be no order as to costs.
The petition shall stand disposed of accordingly.