Badar Durrez Ahmed, J.
1. This writ petition pertains to leases of Nazul land in favor of individuals. These lands, prior to 1947, were leased out to individuals by the Governor-General-in-Council and, after 1947, the leases were executed in the name of the President of India. The lands fall under the control of the Land and Development Office (Land DO) (respondent No.2 herein).
2. The lease-hold rights in these lands stood transferred to the petitioners or their predecessors-in-interest. The relationships between these petitioners and the Union of India (respondent No.1), including the Land DO (respondent No.2) are governed by the terms and conditions of the perpetual leases. The question in the present petition relates to the charge of damages by the Land DO from the petitioners (leaseholders) in respect of alleged breaches committed by them by indulging in alleged unauthorised construction.
3. The prayers, as originally made in the petition, were as under:-
''a) grant a writ, direction or order in the nature of prohibition restraining the respondents from recovering/levying damages on the properties of the petitioners without any authority of law;
b) grant a writ of mandamus directing the respondents to disclose the principle/basis on which such damages are levied;
c) to declare that the respondents cannot impose penalty under the garb of regularisation charges;
d) declare that the power to demand share in the unearned increase on transfer of lease hold rights is bad, arbitrary and illegal;
e) costs be awarded for petitioners.''
4. However, in the course of the arguments, it was submitted on behalf of the petitioners that the question of grant of permission for transfer of the said lease-hold rights and the question of demand of unearned increase on such transfer was not being pressed by them and that the petition was limited only to the issue of recovery of damages by the respondents from the petitioners in respect of the alleged breaches of the terms of the leases.
5. Moreover, out of the 17 petitioners, the petitioner No.1 is an association formed by the owners/lessees of residential plots in the colonies of Golf Links and Jor Bagh, New Delhi. The petitioner No.1 by itself does not own any lease-hold rights in any plot in the said colonies. thereforee, to that extent, the petitioner No.1, by itself, does not have any direct interest in the petition and is merely a representative body of the various lease-holders of residential plots. Insofar as the other 16 petitioners are concerned, as indicated by the learned counsel for the respondents 1 and 2, some of them have already converted their lease-hold rights into free-hold ownership of their respective plots. The petitioner Nos 2, 3, 6, 7, 10, 12, 13, 15 and 16 are low free-hold owners of their respective plots and are, thereforee, no longer interested in the present writ petition. This leaves us with petitioner Nos 4, 5, 8, 9, 11, 14 and 17. However, out of these seven petitioners, only the case of the petitioner No 17 was argued before me with some particularity. Although, it was mentioned in passing that the arguments were also made on behalf of the other six remaining petitioners, yet no specific arguments were addressed on their behalf, nor were their specific eases alluded to. Even the written submissions handed in by the parties were only with reference to the facts of the case of the petitioner No.17. However, if what is decided hereby applies to the other six petitioners, they would also be governed by it to the extent applicable.
6. At this juncture, it is also pertinent to note that subsequent to the filing of the writ petition, the petitioner No.17 moved an application for amendment of the writ petition. In the application seeking amendment, it was stated that the petitioner No.17 was the lessee of the residential plot bearing No.17, Block No.1, known as 11 A, Prithvi Raj Road, New Delhi. This property was originally leased out to Mrs C. Vidyawati Madden by a perpetual lease (Annexure A-I) made on 03.07.1941 by the then Governor-General-in-council. It was further stated in the amendment application that subsequently, the property was substituted in the name of various parties on 23.09.1966. However, by virtue of an oral family settlement, the property bearing No.11-A, Prithvi Raj Road, New Delhi fell in the share of the petitioner No.17. It is stated that these facts had been duly recorded in original suit No.132/72 filed in this Court which was compromised and a decree was drawn up in terms of the compromise.
7. It was also submitted by the petitioner No. 17 that the only unauthorised construction which was alleged by the Land DO against the petitioner was as under:-
''i. generator room with A.C. Sheet roof of area 120 sq. ft. in the setback.
ii. car parking shed about 17' x 19'.''
8. According to the petitioner No.17, this does not fall within the meaning of unauthorised construction and even if it were to be assumed to be unauthorised, then the same could only have been demolished by the New Delhi Municipal Council (NDMC) under Section 195 of the Punjab Municipal Act of 1911. But such demolition could have been carried out only after giving a notice within six months from the date of completion of the building. No such steps had been taken within the period of six months and, now after a lapse of more than 50 years, the said construction could not be ordered to be demolished or altered and, thereforee, it was submitted by the petitioner No.17, the demand of the Land DO to get the same regularised by the NDMC was neither just, nor legal, nor enforceable as the impugned structure stood regularised ipso facto after the six months period from the date of construction expired without there being any issuance of the requisite notice. In view of the fact that the NDMC had a role to play in this writ petition, the petitioner sought the impleadment of the NDMC as a party respondent and also sought the amendments to the writ petition to set forth the aforesaid facts in the original writ petition and to incorporate the same in paragraph 23 thereof. The amendment application (CM No.8850/1998) was allowed and NDMC was imp leaded as a party-respondent by an order of this Court on 20.01.2000 and notice was directed to be sent to the newly added respondent No.3 (NDMC). All the respondents have been served and they have filed their counter-affidavits. When the matter came up for arguments before me on 21.08.2003, the learned counsel for the respondents 1 and2 (UoI and Land DO) sought time to answer the question as to under which provision of the lassoerstatute, the Land DO was entitled to charge damages. After seeking some adjournments, ultimately, the learned counsel appearing for the respondents 1 and 2 placed before this Court the decision of a Single Bench of this Court in the case of Edward Keventors (Successors) P. Ltd v. Union of India, etc: AIR 1983 Delhi 376 to show that the Land DO was entitled to charge damages for unauthorised construction. The learned counsel also sought permission to place on record an office order dated 31.03.1976 for the same purpose. Such permission was granted by this Court and the said office order was placed on record by the respondent Nos. 1 and 2 supported by an affidavit of one Mr R.P. Singh (Assistant Settlement Commissioner, Land and Development Office, Nirman Bhawn, New Delhi). The affidavit is dated 14.10.2003 and is on record.
9. The specific averments with regard to the petitioner No.17 as contained in paragraph 21 of the writ petition are that from time to time the petitioner No.17 has been made to pay sums of money to the Land DO for regularising the aforesaid alleged breaches.
The Land DO had been issuing notices for damages for unauthorised construction from time to time and had been stating in such notices that the Lesser (UoI) would be pleased to regularise the breaches temporarily up to a particular period provided the petitioner No.17 paid damages for the alleged unauthorised construction at differing rates for differing periods. One such notice is Annexure 'H-I' dated 04.03.1975 issued by the Land DO. The notice reads as under:-
''REGD A.D.No.1I-9/1(17)/75 Government of India
Ministry of Works and Housing
Land and Development Officer
Nirman Bhawan br New Delhi
Shri S.M. Madden, Mrs. P. Madden,
Mrs. R. Bhatia, Mrs. S. Chathli
and Mrs. S. Sardene
C/o Shri S.M. Madden,
11-A/C Prithviraj Road,
Sub: Premises situated on Plot No.17 block No.1 known as 11-A, thviraj Road, New Delhi.
With reference to your letter dated 16.04.1974 I am to say that the Lesser will pleased to regularise the breaches temporarily up to 14.7.1975 in the premises mentioned above provided you comply with the following terms and conditions in full in advance:-
A. DAMAGE FOR UNAUTHORISED CONSTRUCTION AND OTHERS NOTICED ON INSPECTION CARRIED OUT AND NOTICE ISSUED ON 11.12.1973:
(area 112.78 plus 93.75 plus 80.50 plus 100 = 387.03 Sq. ft, say 388 sq. ft.)
i) From 16.11.1971 to 13.4.1974 @ Rs.947/- P.A.Rs.2280.58
ii) From 14.4.1974 to 14.1.75 @ Rs.1366/- P.A Rs.1032.92
iii) From 15.1.75 to 14.7.75 @ Rs.1366/- P.A. RS.683.00
B. GROUND RENT:
i) Ground Rent @ Rs.69/- P.A. from 15.7.73 to 14.1.75 Rs.138.00
ii) Ground Rent from 15.1.75 to 14.7.75 @ Rs.69/- P.A. Rs.34.50
iii) Interest on belated payment of ground rent from 15.7.73 to 16.4.1974 Rs.2.80
i) Furnishing an undertaking on a non-judicial stamped paper of Rs.1.50 to the effect that you shall remove the breaches by 14.7.75 to get them regularised beyond 14.7.75.
ii) Furnishing an undertaking on a non-judicial stamp paper of Rs.1.50 to the effect that you will pay the difference in charges as per form of undertaking enclosed herewith as the charges mentioned above are provisional.
2. If the above terms and conditions are acceptable, the acceptance thereof may please be communicated to this office in writing together with the necessary undertaking as a crossed cheque/demand draft covering the full amount drawn in favor of Land and Development Officer within 30 days from the date of receipt of this letter failing which the above terms and conditions will automatically stand as withdrawn and cancelled and further action to reenter the premises under Clause (3) of the lease will be taken against you without any further reference.
3. It may please be clearly noted that if the amount is not paid within the period stipulated above you will have to pay interest @ 8% on the total dues from the date of issue of this letter.
4. It may be noted that you are also liable to pay damages/additional charges/additional ground rent for the period starting from the date (s) following the expiry of the period for which the above terms are being offered for these breaches or any other breaches which may come to our notice hereafter (found to be existing at site beyond that date or dates). These charges will be communicated to you separately.
5. The present letter offering terms will not act as a waiver for recovery of the said damages which may in the discretion of the Lesser, be found payable by you beyond the dates mentioned above for breaches existing hereafter at site.
6. In case you have any point to clarify in connection with the above notice, you may kindly see the undersigned after prior appointment (Telephone No.376768) between hours 2.00 P.M. to 3. P.M. in the after noon within a week of the date of issue of this letter. It may, however, be clearly understood that your inability to avail of this opportunity of personal discussion will not be accepted as a ground for not taking further action in the matter.
Dy.Land and Development Officer,
for and on behalf of the
President of India''
10. There is another letter on the same lines dated 23.10.1982 where, again, damages are sought to be charged as under:-
''A. DAMAGE CHARGES FOR UNAUTHORISED CONSTRUCTION
Unauthorised puce Room 10'-6'' plus 12x10-5/8'-(6'x1-1/8') (12'-6''x8') plus 11'-6''x7' plus 15'x6'-3'')
@ Rs.1352/- P.A. w.e.f. 15.7.78 to 31.3.79
@ Rs.3462/- P.A. w.e.f. 1.4.79 to 31.3.81
@ Rs.9691/- P.A. w.e.f. 1.4.81 to 14.1.83
11. In this backdrop, the question that needs to be answered is--under which clause of the lease or other statutory provision does the Land DO draw power to make demands towards damages for temporary regularisation of unauthorised construction? It is the submission of the learned counsel for the petitioner No.17 that the relationship between the petitioner No.17 and the LandDO is entirely governed by the clauses contained in the original lease deed dated 03.07.1941. In fact, it was submitted in ground 'E' of the writ petition that this lease was a government grant and by virtue of Section 3 of the Government Grants Act, 1895, only the terms of the grant and not any other statutory provisions need be looked into. Thus, the entire case for imposition of damages by the Land DO on the petitioner No.17 depended on the terms and conditions of the said lease deed. The learned counsel for the petitioner No.17, submitted that there is no clause in the said lease deed which gave a right to the LandDO to impose damages for the alleged violation of the terms and conditions thereof. The only powers given to the LandDO were of re-entry, if otherwise permissible in law.
12. The learned counsel for the respondents 1 and 2 admitted that the lease in favor of the petitioner No.17 was a Government grant and was covered by the provisions of the Government Grants Act, 1895. He also submitted that Sections 2 and 3 of the Government Grants Act, 1895 make it clear that the terms of a grant under the Act have to take effect according to their tenor and that the Government had the unfettered discretion to impose any condition, limitation or restriction in the grant notwithstanding any contrary provision of a statute or of common law. The learned counsel for the respondents 1 and 2 stated that the power to impose damages for unauthorised constructions flowed from clause 2 (2) of the lease deed.
13. Before I analyze this clause in the context of the arguments advanced on behalf of the parties, it would be instructive to recapitulate that there are two aspects to the matter at hand. The first is the question of demolition of any alleged unauthorised construction and the second is the issue with regard to the power (or the lack of it) of the LandDO to demand payment for damages towards temporary regularisation of unauthorised construction. Insofar as the first aspect is concerned, it is an admitted position that when the alleged unauthorised construction was made (over 50 years ago), no notice within six months thereof was issued to the lessee. That being so, by virtue of Section 195 of the Punjab Municipal Act, 1911, as it was then applicable, the alleged unauthorised construction could not be demolished thereafter. A Division Bench of this Court in the case of Delhi Municipality v. Surjit Kau : AIR1973Delhi198 held as under in paragraph 6 thereof:-
''6.It is no doubt true that a liability under Section 195 of the Punjab Act to demolish the building upon a notice being delivered to her but this liability would have been incurred only if a notice had been delivered to her within six months from the completion of the building and that is the extent of the liability incurred by her. The liability was conditional upon a notice being delivered to her within six months from the completion of the building and it cannot be said to be a liability incurred without any limit of time. The Corporation cannot take advantage of the fact that in Section 343 of the Corporation Act, there is no limit of time for the service of a notice of demolition because the Corporation can enforce only such liabilities which have been incurred under the Punjab Act and to determine the extent and nature of the liability, the provisions of the Punjab Act will have to be looked into notwithstanding its repeal. The provisions contained in Sections 336, 343 and 344 of the Corporation Act are, by their language, of prospective operation and the appellant Corporation cannot rely upon these provisions to issue a notice of demolition after the expiry of six months from the completion of the building as was done in the present case in the year 1960.''
Apart from this, the NDMC in its counter-affidavit has stated as under:-
''Further, as per LandDO records, the construction was noticed by them in 1973. Hence this cannot be demolished due to the limitations contained under section 195 of the PM Act; as such action is barred by time as per the provisions of the said Act. Even though no action can be taken by NDMC for demolition of the said unauthorized structures such structures still remain unauthorized and cannot be regularized as per the contention of the Petitioner.''
14. Thus, demolition is no longer an issue. However, insofar as the NDMC is concerned, they state that though demolition cannot be carried out, the unauthorised structure still remains unauthorised and cannot be regularised as prayed by the petitioner No. 17.
15. Coming to the second and main aspect of the matter, it is to be seen whether clause 2 (2) of the said lease deed 03.07.1941 permits the LandDO to charge damages. Admittedly, this lease is a Government grant. In the case of Hajee S.V.M. Mohamed Jamaludeen Bros and Co. v. Govt of T.N. : 2SCR413 , the Supreme Court, while analysing the provisions of the Government Grants Act, 1895, had this to say:-
''9. Section 2 of the Grants Act insulates all grants and all transfers of land or any interest therein made by the Government from the checks of the provisions of Transfer of Property Act. Section 3 of the Grants Act protects the terms of such grant from the provisions of any other law. We extract the above two provisions hereunder:
''2. Transfer of Property Act, 1882, not to apply to Government grants.--Nothing in the Transfer of Property Act, 1882, contained shall apply or be deemed ever 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 Government to, or in favor of, any person whomsoever; but every such grant and transfer shall be construed and take effect as if the said Act had not been passed.
3. Government grants to take effect according to their tenor.--All provisions, restrictions, conditions and limitations 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.''
10. The combined effect of the above two sections of the Grants Act is that terms of any grant or terms of any transfer of land made by a Government would stand insulated from the tentacles of any statutory law. Section 3 places the terms of such grant beyond the reach of any restrictive provision contained in any enacted law or even the equitable principles of justice, equity and good conscience adumbrated by common law if such principles are inconsistent with such terms. The two provisions are so framed as to confer unfettered discretion on the Government to enforce any condition or limitation or restriction in all types of grants made by the Government to any person. In other words, the rights, privileges and obligations of any grantee of the Government would be completely regulated by the terms of the grant, even if such terms are inconsistent with the provisions of any other law.
11. The above legal position was recognised by the courts in India before the Constitution of India came into being. (Suraj Kanta Roy Choudhary v. Secy. Of State1and Raza Husain Khan v. Saiyid Mohd.2) The position continued to be so even after the Constitution cane into force (State of U.P. v. Zahoor Ahmed3).''
16. Once it is recognised that a particular lease is a grant contemplated under the Government Grants Act, 1895 then, it shall take effect according to its tenor and any contrary statutory provision or rule of law will have no effect. In other words, the entire relationship between the grantor and the grantee will be governed by the terms of the grant itself. No other document or statutory provision is required to be looked into. This being the position in law, it is to be examined whether clause 2 (2 of the said lease of 03.07.1941 permits the respondents 1 and 2 to charge damages from the petitioner for temporary regularisation of alleged unauthorised construction. Clause 2(2) reads as under:-
''2. The Lessee for himself, his heirs, executors, administrators and assigns covenants with the Lesser in the manner following (that is to say)-
(1) xxxx xxxx xxxx xxxx xxxx
(2) The Lessee will from time to time and at all times pay and b1 discharge all rates, taxes, charges and assessments of every description which are now or may at any time hereafter during the continuation of this lease be assessed, charged or imposed upon the premises hereby demised or on any buildings to be erected thereupon or on the Landlord or Tenant in respect thereof.''
From a reading of clause 2 (2), it is clear that it is a covenant by the lessee that he shall, from time to time, pay and discharge all rates, taxes, charges and assessments of every description which may be assessed, charged or imposed upon the premises in question or on any buildings to be erected thereupon or on the landlord or the tenant in respect thereof. A plain reading of the said clause 2(2), makes it clear that it speaks of the lessee's liability in respect of the premises in question with regard to payments to third parties (local authorities, etc.) and that too pertaining to rates, taxes, charges and assessments of every description. The liability that is spoken of in this clause is in the nature of payments to other local bodies in the realmof taxation. The words used are ''rates'', ''taxes'', ''charges'' and ''assessments''. All these words are descriptive of levies relatable to taxes. They have nothing to do with damages for temporary regularisation of unauthorised construction which belong to an entirely different genus. The rule of construction in construing written instruments such as the present lease is that the grammatical and ordinary sense of the words is to be adhered to, unless it would lead to some absurdity, repugnancy or inconsistency with the rest of the instrument. In such an eventuality, the grammatical and ordinary sense of the words may be modified to avoid the absurdity and inconsistency but only to that extent. [See: V.S. Talwar v. Prem Chandra sharma: : 3SCR51 (to 424-425); Delhi Development Authority v. Durga Chand Kaushish: : 1SCR535 ; Krishna Beharilal (died) (by Lrs) v. Gulab Chand and Ors: : AIR1971SC1041 ; and Ramprashad Sahu and Anr. v. Mt. Basantia: : AIR1925Pat729 . In the present case, I find that reading clause 2 (2) in the grammatical and ordinary sense does not produce any absurdity, repugnancy or inconsistency with the rest of the lease. At least none has been pointed out by the learned counsel for the respondents. Reading the said clause in its ordinary and grammatical sense, I do not see how the said clause could be construed as giving the Lesser (presently the Land DO) the power to charge damages for temporary regularisation of unauthorised construction. It does not.
17. Reliance was placed by Mr Hazarika, the learned counsel for the respondents 1 and 2, on a decision of a single Judge of this Court in the case of Edward Keventers (Successors) P. Ltd v. Union of India: AIR 1983 Delhi 376. However, I find that that decision would not be of any help to him. This is so because, firstly in Edward Keventers (supra), the learned single Judge held as under at page 381:-
''I hold that though a Government grant is to be regulated by its own terms irrespective of the T.P. 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 expressly 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.''
The above observations of the learned single Judge appear, to me, to be in clear contradiction to what the Supreme Court has declared in Hajee S.V.M. Mohamed Jamaludeen (supra)1. In view of the subsequent Supreme Court decision which, obviously, was not before the learned single Judge, the aforesaid finding in Edward Keventers (supra), would no longer apply. Secondly, in view of the fact that the basic premise of the decision in Edward Keventers (supra), runs counter to the Supreme Court decision in Hajee S.V.M. Mohamed Jamaludeen(supra), the conclusion of the learned single judge based on such premise in Edward Keventers (supra) to the effect that the damages can be charges by the LandDO in respect of unauthorised construction, as indicated in paragraph 23 of the said decision would no longer be applicable. In Director of Settlements, A.P. v. M.R. Apparao: : 2SCR661 , the Supreme Court cautioned that when it decides a principle it would be the duty of the High Court or a subordinate court to follow that decision. And, a judgment of the High Court which refuses to follow the decision and directions of the Supreme Court or seeks to review a decision of the High Court which had been set aside by the Supreme Court is a nullity. Clearly, thereforee, the decision in Edward Keventers (supra) would be of no help to the respondents 1 and 2.
18. Mr Hazarika, the learned counsel for the respondents 1 and 2, then relied upon the Office Order dated 31.03.1976 on the subject -- ''Breaches (charges for change of use/unauthorised constructions, etc.),Procedure to deal with''. The Office Order of 31.03.1976 cannot permit something which is not provided for in the said lease. When the said lease operates as a Government grant, it operates notwithstanding any rule of law or statutory provision. An Office Order is certainly at a level inferior to a statutory provision and, thereforee, would not empower the LandDO to charge damages as indicated therein or in the manner mentioned therein. The power or the right to recover damages has to flow from the lease itself. As already indicated above, there is no such clause in the said lease whereunder the LandDO could impose damages for temporary regularisation of unauthorised construction. That being the case, the Office Order dated 31.03.1976 is of no consequence.
The learned counsel for the respondents 1 and 2 also referred to the decision of the Supreme Court in the case of N. Suresh Nathan and Anr. v. Union of India and Ors: : AIR1992SC564 wherein certain service rules were interpreted and construed in consonance with the long standing practice prevailing in the concerned department. This was pressed into service by the learned counsel to show that there has been a long-standing uniform policy of imposing damages particularly in terms of the Office Order dated 31.03.1976 and, thereforee, the said lease ought to be construed in terms of this long-standing practice and policy of imposing damages. I am unable to agree with this submission. The answer is simple. What was being construed by the Supreme Court if the case of N. Suresh Nathan (supra) were service rules and in that case, the past practice which was relied upon was based on one of the possible constructions which could be made of the rules themselves. It is in that context that the Supreme Court observed that upsetting the long-standing practice would not be appropriate. This is not the situation in the present case. Charging of damages for temporary regularisation of alleged unauthorised construction is not provided for in the lease in question. It is not one of the possible ''constructions'' which could be concededin interpreting the said lease. thereforee, a long-standing practice by itself, which does not have any support of any clause in the lease in question, cannot justify a demand for such damages. In view of the Government Grants Act, the Office Order dated 31.03.1976 has no meaning at all and anything contrary or inconsistent contained in the said Order would have to give way to the tenor of the lease. Something which is not permissible under the lease or is not provided for cannot be imposed on the lessee by virtue of a unilateral Office Order.
19. In any event, at least insofar as the petitioner No.17 is concerned, the Office Order itself provides that ''no inspection of the premises occupied by foreign mission will be carried out nor any misuse/damage charges will be levied in case of residential buildings owned/hired by foreign missions''. The premises of the petitioner No.17 has admittedly been under the occupation of a foreign mission/embassy. Thus, even if it were assumed that the Office Order dated 31.03.1976 were applicable, no damages could be charged from the petitioner No.17.
20. In view of the aforesaid discussion, the writ petition is allowed to the following extent:-
i) the alleged unauthorised construction in respect of the lease-hold property belonging to the petitioner No.17 cannot now be demolished;
ii) the lease in respect of the petitioner No.17's lease-hold property does not provide for the imposition of any damages by LandDO for temporary regularisation of the alleged unauthorised construction;
iii) the pending demands made by the LandDO from the petitioner No.17 towards temporary regularisation of the alleged breaches are quashed and set aside.
There shall be no orders as to costs.