Sharda Nath vs Delhi Administration And Ors.
2008 Latest Caselaw 436 Del

JUDGMENT

Sanjiv Khanna, J.

1. The appellant, Ms. Sharda Nath, has filed the present Letters Patent Appeal impugning the judgment dated 12th December, 1996 dismissing her Writ Petition No. 1026/1981. The appellant in the said writ petition had challenged order dated 30th March, 1981 issued by the Delhi Development Authority (hereinafter referred to as DDA, for short) restoring sub-lease deed dated 17th July, 1965 executed in favor of Mr. Dharam Chand and cancelling the lease deed dated 5th July, 1973 executed in her favor. Both the aforesaid lease deeds pertain to a plot No. C-70 (new No. G-20) located in Maharani Bagh, New Delhi, measuring 800 square yards. The above two sub-lease deeds were tripartite documents executed by the President of India, Maharani Bagh Co-operative House Building Society Limited (hereinafter referred to as the Society, for short) and Mr. Dharam Chand in respect of sub-lease dated 17th July, 1965 and Ms. Sharda Nath in respect of sub-lease dated 5th July, 1973.

2. The President of India has executed a perpetual lease deed dated 2nd November, 1964 in favor of the Society for the purpose of allocating plots to it's members. Mr. Dharam Chand was a member of the Society and accordingly sub-lease deed dated 17th July, 1965 was executed in his favor. As per the said sub-lease deed, Mr. Dharam Chand was required to construct a residential building on the plot within a period of two years after obtaining sanction for the building plans. The relevant clause of the sub-lease deed is as under:

Clause II (5). The Sub-Lessee shall within a period of two years from 1st day of January, 1965 (and the time so specified shall be of the essence of the contract) after obtaining sanction to the building plan, with necessary design, plans and specifications from the proper municipal or other authority at his own expense, erect upon the residential plot and complete in a substantial and workmanlike manner a residential building for private dwelling with the requisite and proper walls, sewers and drains and other conveniences in accordance with the sanctioned building plan and to the satisfaction of such municipal or other authority.

3. Mr. Dharam Chand constructed two garages, bathroom and WC on the ground floor and two rooms with bathroom and a veranda on the first floor above the garage block. The respondent-DDA felt that there was non-compliance of the aforesaid clause and by letter dated 21st May, 1973, the sub-lease deed dated 17th July, 1965 was determined.

4. The cancellation letter dated 21st May, 1973 was made subject matter of challenge in Writ Petition No. 744/1974, which was filed by Sh. Dharam Chand in the Delhi High Court. By Order dated 10th January, 1975 dispossession of Mr. Dharam Chand was stayed. It may be relevant to state here that DDA had initiated proceedings under the Public Premises (Eviction of Unauthorized Occupant's) Act, 1971 for recovery of possession against Mr. Dharam Chand.

5. On termination of the sub-lease deed executed in favor of Mr. Dharam Chand by letter dated 21st May, 1973, the co-operative society was informed by a letter of the same date about the said termination. On 21st May, 1973 itself, Ms. Sharda Nath's name was recommended by the Society to the DDA for allotment of the said plot as her name was on the waiting list. Allotment in favor of the appellant was approved and a perpetual sub-lease deed dated 5th July, 1973 was executed in her favor. However, she could not be put in possession as possession was with Mr. Dharam Chand and later on he was protected from dispossession by an interim order passed by this Court in Writ Petition No. 744/1974.

6. Mr. Dharam Chand kept on making representations for restoration of the plot/sub-lease deed. DDA agreed to restore the said lease deed in favor of Mr. Dharam Chand subject to payment of restoration charges of Rs. 48,674/-. The said restoration charges were paid and by communication dated 30th March, 1981 sub- lease deed in favor of Mr. Dharam Chand was restored. This necessitated cancellation of the Sub-lease deed dated 5th July, 1973 executed in favor of Ms. Sharda Nath.

7. However, the factum of restoration of lease deed dated 17th July, 1965 in favor of Mr. Dharam Chand was not communicated and was not brought on record in Writ Petition No. 744/1974. In fact, the said writ petition had become infructuous in view of the restoration of the sub-lease deed vide communication dated 30th March, 1981. No one appeared for Mr. Dharam Chand before the learned Single Judge, when Writ Petition No. 744/1974 came up for hearing and the said writ petition came to be dismissed by an ex parte speaking judgment dated 30th March, 1989. As the learned Single Judge was not informed about restoration of the sub-lease deed, in the judgment dated 30th March, 1989, the said fact was not mentioned and examined. Mr. Dharam Chand, however, filed an appeal being LPA No. 15/1990 highlighting that by letter dated 30th March, 1981 the sub-lease deed in his favor had been restored. This factum was noticed by the Division Bench and the Appeal was disposed of as infructuous as the plot in question had been restored to the original allottee. The said Order was passed on 7th November, 1991.The judgment dated 30th March,1989 got merged into this order dated 7th November, 1991.

8. In the meanwhile, Ms. Sharda Nath had filed writ petition being Writ Petition No. 1026/1981 challenging the communication dated 30th March, 1981 restoring the sub-lease deed in favor of Mr.Dharam Chand and cancelling the lease deed in her favor. It is this Writ Petition No. 1026/1981, which was dismissed by the learned Single Judge in his judgment dated 12th December, 1996 and the same has been made subject matter of the present appeal.

9. Contentions raised by the learned Counsel for the appellant may be enumerated as follows. Firstly, it was submitted that after Sub-lease Deed dated 5th July, 1973 was executed in favor of Ms. Sharda Nath, the same could have been cancelled only for violation of the terms of the lease and in accordance with Clauses III and IV. Secondly, it was stated that after the Sub-lease Deed dated 5th July, 1973 was executed, the Lesser i.e.; the President of India or his nominee was only vested with revisionary interest and therefore was not competent to restore the lease in favor of Mr. Dharam Chand and cancel the lease deed in favor of Ms. Sharda Nath. Thirdly, it was stated that there is violation of the principles of natural justice as before cancelling the Sub- lease Deed dated 5th July, 1973, no show cause notice was issued and personal hearing was not granted. Fourthly, it was stated that the lease deed was restored in great haste and hurry, legal opinion was incorrect and the entire exercise was malafide. Lastly, it has been contended that the legal representatives of Mr. Dharam Chand have created third party interest in the property. Some other contentions raised by the appellant have also been dealt with.

10. Mr. Dharam Chand, has expired and is now represented by his legal representatives Learned Counsel for the Legal representatives of Mr. Dharam Chand addressed arguments meeting and making submissions to the contrary. It was highlighted that Ms. Sharda Nath was daughter of the Secretary of the Society and that the cancellation of the sub-lease deed was done with ulterior motives and for malafide reasons. He had drawn our attention to the correspondence exchanged and the lightening speed with which the authorities had executed the sub-lease deed dated 5th July, 1973 in favor of Ms. Sharda Nath even though the proceedings under Public Premises (Eviction of Unauthorised Occupant's) Act, 1971 had been initiated against Mr. Dharam Chand but no final order had been passed. It was also highlighted that Ms. Sharda Nath has been allotted another plot measuring 232.71 square yards being plot No. I-1 subject to final outcome of the litigation between Ms. Sharda Nath and the legal representatives of Mr. Dharam Chand.

11. The first and the foremost question that arises for consideration is whether the respondent authorities had the right to restore the lease and revoke order of cancellation of lease deed dated 17th July, 1965 made on 21st May, 1973 by order dated 30th March, 1981. The relevant clauses of the sub-lease deed in this regard read as under:

III. If the sum or sums payable towards the premium or the yearly rent hereby reserved or any part thereof shall at any time be in arrear and unpaid for one calendar month next after any of the days whereon the same shall have become due, whether the same shall have been demanded or not, or if it is discovered that this Sub-Lease has been obtained by suppression of any fact or by any mis-statement, mis-representation or fraud or if there shall have been, in the opinion of the Lessee or the Lesser, and the decision of the Lesser shall be final, any breach by the Sub-Lessee or by any person claiming through or under him of any of the covenants or conditions contained herein and in the Lease and on his part to be observed or performed, then and in any such case it shall be lawful for the Lesser or the Lessee with the prior consent in writing of the Lesser, notwithstanding the waiver of any previous cause or right of re- entry upon the residential plot hereby sub-leased and the buildings thereon, to re-enter upon and take possession of the residential plot and the buildings and fixtures thereon, and thereupon this Sub-Lease and everything herein contained shall cease and determine in respect of the residential plot so re-entered upon, and the Sub-Lessee shall not be entitled to any compensation whatsoever nor to the return of any premium paid by him.

PROVIDED that, notwithstanding any thing contained herein to the contrary the Lesser, in his absolute discretion, or the Lessee with the Prior consent in writing of the Lesser, may, without prejudice to the right of re-entry as aforesaid, waive of (sic) condone, breaches, temporarily or otherwise, on receipt of such amount by the Lesser or by the Lessee on behalf of the Lesser and on such terms and conditions as may be determined by the Lesser and the Lesser or the Lessee whoever may be entitled may also accept the payment of the said sum or sums or the rent which shall be in arrear as aforesaid together with interest at the rate of six per cent per annum. The amounts for waiver or condensation received by the Lessee from the Sub-Lessee shall be paid forthwith by the Lessee to the Lesser subject to such deductions as the Lesser may, in his absolute discretion, allow to be retained by the Lessee. IV. No forfeiture or re-entry shall be effected until the Lesser or the Lessee has served on the Sub-Lessee a notice in writing.

(a) specifying the particular breach complained of, and

(b) if the breach is capable of remedy, requiring the Sub-Lessee to remedy the breach, and the Sub-Lessee fails within such reasonable time as may be mentioned in the notice to remedy the breach if it is capable of remedy, and in the event of forfeiture or re-entry the Lesser in his discretion or the Lessee, with the prior consent in writing of the Lesser, may relieve against forfeiture on such terms and conditions as the Lesser thinks proper.

Nothing in this clause shall apply to forfeiture or re-entry.

(a) for breach of covenants and conditions relating to sub-division or amalgamation, erection and completion of building within the time provided and transfer of the residential plot as mentioned in Clause II, or

(b) in case this Sub-Lease has been obtained by suppression of any fact, mis- statement, mis-representation or fraud.

12. A careful perusal of the aforesaid Clauses reveals that the Lesser has been given power and authority to forfeit, make re-entry and take possession, when the sub-lessee commits a breach of the terms and conditions of the Sub-lease. Right of re-entry can be waived and breaches condoned on receipt of such amount and on such terms and conditions as may be imposed by the Lesser.

13. Clause IV of the Sub-lease deed requires issue of show cause notice before re-entry. However, no show cause notice is required to be issued in cases of breach relating to sub-division of plot, amalgamation, transfer of plot or failure to complete the building within time. In the present case, therefore, Clause IV of the sub-lease deed will not apply as the breach complained of was failure to erect and complete building within the prescribed time in terms of lease deed dated 17th July, 1965. Clause IV deals with the procedural aspect, which is to be followed when there is a breach and terms of the Sub-lease have been violated. In certain circumstances, the sub-lessee must be given notice in writing and asked to rectify and remedy the breaches complained of. In specified cases, right to forfeit or re-entry can be exercised even without issue of show cause notice by the Lesser.

14. Clause III entitles the Lesser to re-enter upon and take possession of the residential plot and building and structures thereon and thereupon this sub-lease and everything therein contained shall cease and determine. This is clear from the words used in the last portion of paragraph 1 of Clause III quoted above. Thus, the sub-lease deed ceases to exist and is determined not merely by issue of notice by re-entry but only when possession is taken and thereon and thereupon the sub-lease deed ceases to exist and is fully determined. Till possession is taken after order of re-entry, the sub-lease continues to exist and is not fully determined. In Clause III, the draft man has been careful to use the expression 're-enter' and not 'cancellation' or 'termination'`. 'Re-entry' in its normal connotation includes right to take possession and enter upon the property.

15. The proviso to Clause III gives absolute discretion to the Lesser to waive or condone the breaches temporarily or otherwise on receipt of consideration or on such terms and conditions as may be determined by the Lesser. In fact, the proviso begins with non-obstante clause which over rides all other clauses in the sub-lease deed (this will include Clause IV). It specifically stipulates that the Lesser has absolute discretion to waive or condone breaches notwithstanding the conditions contained to the contrary in the sub-lease. This absolute discretion of the Lesser to waive or condone breaches is an overriding power and authority given to the Lesser in proviso to Clause III and is not subject to Clause IV of the sub-lease deed. This absolute discretion can also be exercised by the Lesser where the sub-lessee has not taken prior consent in writing from the Lesser. Prior consent of the Lesser is not a pre-condition for exercise of discretion to waive or condone breaches of the terms of the sub-lease. The Lesser can also call upon the sub-lessee to make payment of the sum so determined together with the interest @ 6% per annum. Payment of interest can only arise for past defaults and breaches and not in cases of prior consent. Therefore, the proviso to Clause III postulates two situations. Firstly, cases of prior consent in writing by the Lesser to waive conditions imposed for future. Secondly, the proviso equally applies to cases where breaches have occurred but the Lesser in its absolute discretion is inclined to condone the same on payment of charges so determined, and these may be payable with interest. We feel that the proviso will equally apply to cases where right to re-entry has been exercised but possession of the plot and actual re-entry in fact has not taken place.

16. The above interpretation given by us is in consonance with certain well established principles of construction of deeds and documents. The first general rule of interpretation of a deed or document is to read the document itself as a whole and not in piece-meal and gather the intention of the parties from the words used. (See in this regard, Odgers Construction of Deeds and Statutes, 5th Edition, 1967 and the observations of the Supreme Court in Delhi Development Authority v. Durga Chand Kaushik ).

17. The second principle is where two clauses disclose some conflict or contradiction but the Clauses can be reconciled, one should give effect to all the clauses rather than render one or more of them as nugatory. We should try and resolve the conflict at the first instance, in view of principle expressed in the maxim Ut Res Magis valeat Quam Pereat.

18. Thirdly, where it is not possible to resolve conflict between two clauses and the same are irreconcievable, courts have evolved the principle or the theory that what once has been granted cannot be taken away. A clear disposition in an earlier clause cannot be withdrawn and cut down by a later clause. (Refer Sahebzada Mohd. Kamgarh Shah v. Jagdish Chandra Deb , Ram Kishore Lal v. Kamal Narain and Forbes v. GIT reported in (1922) 1 AC 256).

19. Fourthly, where there is a grant and an exception is carved out, the exception is to the benefit of the granter and the Clause can be construed in favor of the grantee if two reasonable interpretations are possible. In such cases, interpretation in favor of the grantee and as against the granter should be accepted. This principle does not apply when the exception so carved out is not bad for uncertainty.

20. Lastly, rule of contra preferentem applies against the party/person who has prepared the document in case of any ambiguity. As per this rule, a document can be construed against a party who had prepared the same. (See, United India Insurance v. Pushpalaya Printers ).

21. In reaching the above conclusion, we have also kept in mind the policy guidelines issued in 1988 that prescribe for payment of composition fee for delay and default in construction of up to 25 years. The said guidelines also state that even as per the policy in vogue before 21.7.1988, defaults beyond three years were being condoned up to seven years or even after lapse of ten years in terms of an earlier order of the Lieutenant Governor dated 17.2.1984. One of the Clauses in the said guidelines/procedures for calculation of composition fee published in the year 1988 reads as under:

2. (ii) Principle of General amnesty ending with 1975 shall apply to all cases where lease/sub leases have been executed either directly or through Co- operative Societies.

22. It is clear from the guidelines that the Lesser does not regard delay in construction as an absolute and non-condoneable breach, that would result in automatic and mandatory determination of the lease but a remedial breach, subject to payment of composition charges. We have also kept in mind the conduct of the Lesser during this period whereby as a matter of routine the breaches and defaults of failure to construct were condoned.

23. Sub-lease in favor of Mr. Dharam Chand was cancelled in the year 1973. Acute shortage of building material, during the period 1971-1975 is a fact that has been alluded to in two letters dated 10th May, 1971 and 19/20th August, 1974 written by Government of India, Ministry of Work and Housing. These letters are available on the files of DDA. The first letter reads as under:

I am directed to say that it has been decided by the Government of India to conserve the use of building materials for urgent and essential public works, as a result of this decision, the availability of these materials for the private sector is likely to be cut down and its building activity slowed down to a great extent. It may not be possible for the beneficiaries under different social housing schemes etc to complete construction of their houses within the stipulated period due to non-availability or shortage of the building materials. In the circumstances, it is recommended that the State Government etc. may give extensions of time liberally for completion of houses by individuals.

24. The second letter is virtually on similar lines stating, inter alia, that there was acute shortage of cement in the country and there was a pressing need to conserve cement for export and therefore Delhi Administration and DDA should not resume plots on the ground of non-construction and extension of time beyond stipulated period may be granted consistent with the availability of building material. It is not disputed that due to shortage of steel, cement and construction material, general amnesty was granted from 1st January, 1971 to 31st December, 1975 by the DDA and the Government of India (See in this regard observations of the Court in Satish Kumar Kapoor v. DDA and Anr. ). In these circumstances, it was rather unusual for DDA to cancel the allotment and re-enter the plot bearing No. C-70 allotted to Mr.Dharam Chand on 21st May, 1973.The said action cannot be justified. In fact there are representations of Mr.Dharam Chand on record that due to non- availability and acute shortage of cement and other material and also as his father had fallen sick he was unable to construct the house, though he constructed the garage block and that construction itself was sufficient compliance with the terms of the lease. The file nothings also reveal that Mr.Dharam Chand had repeatedly made representations for restoration of the plot also pointing out other cases wherein construction had not been made but no order for re-entry had been passed and the defaults were condoned.

25. In cases of non-construction or construction beyond the period specified in the sub-lease, policy decisions have been taken by the DDA to condone the said breaches on payment of late construction charges. If the interpretation put forward by the appellant is to be accepted, then defaults of the nature of the sub-division, amalgamation, third party transfer or failure to erect and complete the building within the prescribed time, are non-condonable defaults on which the Lesser has no discretion and has to forfeit and re-enter and take possession. This interpretation cannot be accepted and if it is accepted, then the policy decisions taken by the DDA/Lesser to condone the aforesaid breaches are liable to be set aside. We therefore do not accept the contention of the appellant that defaults of sub-division, amalgamation, transfer and failure to construct a building within time cannot under any circumstance be condoned. These breaches can be condoned, but, depending upon merits of each case and the policy in force at the instant time.

26. We are conscious of the fact that courts are normally reluctant to interpret a contract on the basis of subsequent conduct of the parties. However, in the case of Godhra Electricity Company Limited v. State of Gujarat , the Supreme Court accepted the fact that the conduct of the parties in rendering or receiving performances under contract can be of assistance in interpreting statement made by the parties themselves in the contract. The conduct of the parties is a further expression by the parties to the meaning they had given and intended to give to the terms of the contracts previously made. Subsequent practice and conduct can in certain circumstances be taken into consideration, where there is scope for ambiguity as it throws light on the meaning of a term or a clause. Though subsequent statements cannot change the meaning of a word, phrase or clause which is crystal clear from a plain reading of the same, in case of ambiguity, extrinsic evidence in the shape of subsequent statements of both the parties and their conduct is admissible.

27. To examine in the contention raised by the appellant that the restoration of the lease and letter dated 30th March, 1981 was issued in haste and hurry, we have examined the original files. The said original files reveal that a detailed note dated 3rd December, 1980 was prepared and thereafter the same was processed. Another note dated 4th December, 1980 followed this previous note. In these notes, reference was made to the policy framed for restoration and to the fact that Mr. Dharam Chand had met Vice Chairman, DDA to pursue his case for the restoration of the sub-lease executed in his favor. The notes recorded that the possession of the plot was with Mr.Dharam Chand and the proceedings under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 were halted in view of the stay granted by the High Court of Delhi to the order of re-entry dated 10th May, 1973. As per the restoration policy in cases of late construction, composition charges were payable by the allottee. It was also noticed that in the present case complications had arisen as the plot had been re-allotted to Ms. Sharda Nath, a member of the Cooperative Society. In view of the re-allotment of the plot to Ms.Sharda Nath difficulty had arisen. By note dated 23rd December, 1980 it was directed that legal opinion should be obtained. On 28th January, 1981 legal opinion was given noticing that possession of the plot had not been handed over to Ms.Sharda Nath. It was also observed in the legal opinion that no lease deed should have been executed in favor of Ms. Sharda Nath without obtaining actual physical possession and there was possibility of connivance of some officers of the DDA and office bearers of the Society at the relevant time which resulted in execution of the Sub-lease Deed dated 5th July, 1973 in favor of Ms. Sharda Nath. It was suggested that Ms.Sharda Nath should be allotted some other plot, and if no amicable settlement was arrived at, the parties could approach Courts for settlement of their disputes. However, legal advisor clearly opined that cancellation of the sub- lease deed in favor of Mr. Dharam Chand was ill-advised and the execution and registration of the Sub-lease Deed dated 5th July, 1973 in favor of Ms. Sharda Nath was done in undue haste. Thereafter, the file was examined by Commissioner (Land) on 7th February, 1981 who agreed with the view and opinion given by the legal department. The Vice-Chairman, DDA vide Order dated 19th February, 1981 observed that Mr. Dharam Chand was entitled to restoration of sub-lease on payment of compounding fee in terms of the policy. It was also observed that the Sub-lease executed in favor of Ms.Sharda Nath was wrong and therefore should be treated as void ab initio. The said order was approved by the Lt. Governor of Delhi. Thereafter, composition fee in terms of the policy decision taken was calculated and paid.

28. We have also examined the file nothings and hasty manner in which the sub-lease deed in favor of the Mr. Dharam Chand was cancelled. The file nothings dated 2nd May, 1973 reveals that two Plots were available for allotment on account of surrender and it was decided that these plots should be allotted to Mr. Jagjivan Ram and Mr. V.C. Shukla. It was further observed that plot bearing C-70 and F-1 might be offered by the Society to Ms. Sharda Nath and Mr. Gurbachan Singh. The above nothings were approved by the Vice Chairman, DDA on 4th May, 1973, i.e.; even before the actual order for re-entry of the plots in question had been passed. Lt. Governor on 10th May, 1973, (i.e. after allotment of plots to 4 persons on the waiting list was virtually approved on 4th May,1973) directed that action for re-entry of plot No. C-70 and other plots should be taken and the Society should be asked to allot these plots to other persons on the waiting list. On 21st May, 1973, Additional Secretary (Legal Administration) in his note observed that it had been decided to cancel the plots allotted to Mr.Dharam Chand and five others in terms of the orders passed by the Lt. Governor. Another note dated 22nd May, 1973 was also prepared stating, inter alia, that in view of letters of cancellation dated 21st May, 1973, five plots are available for allotment and accordingly it was approved that first two plots measuring 1120 sq. yds. and 1013 sq. yds. be allotted to Mr. Jagjivan Ram and Mr. V.C. Shukla and plot No. B-41 should be allotted to Ms. Sharda Nath and plot No. C-70 may be allotted to Mr.Satnam Shah instead of Gurbachan Singh. By letter dated 2nd May, 1969, Mr. Satnam Shah had been directed to be kept at serial No. 1 of the waiting list for allotment of plot. This note was approved by the Vice Chairman, DDA as well as Lt. Governor on 22nd May, 1973 itself.

29. The pace at which the files had moved is apparent. Ms. Sharda Nath is the daughter of Mr. H.K Sanghi, the then Secretary of the Society. The said office bearer it appears was trying to oblige the two influential political figures and in turn he was being obliged by way of allotment of a flat to his daughter. It is indeed inexplicable that the DDA did not even wait to get possession of the plot from Mr. Dharam Chand and went ahead to allot the said plot to Ms. Sharda Nath.

30. There were protests from Mr. Satnam Shah that he was in serial No. 1. He was not considered for the 1st two plots on account of the difference in their size. Mr. Satnam Shah protested that he should be put in serial No. 3 and allotted plot No. B-41, as plot No. C-70 was allotted to him as he was earlier treated at serial No. 4. Merit was found in the representation made by Mr. Satnam Shah and he was placed at serial No. 3 and Ms. Sharda Nath was placed at serial No. 4. The reason why Mr. Satnam Shah was anxious not to be treated at serial No. 4 was that plot No. C-70 was embroiled in dispute with claim of Mr. Dharam Chand. There was virtually no difference in the size of the plot nos. B- 41 and C-70 which measured 802 sq.yds and 800 sq. yds. respectively. Though this fact is not mentioned in the notes but the representations made by Mr.Satnam Shah, make it apparent why he was insisting that he should be allotted plot No. B-41 and not C-70. A natural inference is that Mr. Satnam Shah did not want that he should be allotted a disputed plot on which Mr. Dharam Chand had a claim which was pending consideration. Thus allotment and registration of sub-lease deed dated 5th July, 1973 and cancellation of sub-lease deed dated 17th July, 1965 is subject to same criticism, as was exhibited when sub-lease deed of Mr. Dharam Chand was restored in 1981, i.e.; undue haste and hurry. Both instances fall foul on the same ground and are susceptible to challenge for the same reasoning but with one difference. If cancellation of the sub-lease dated 17th July, 1965 by letter dated 21st May, 1973 is struck down, the sub-lease dated 17th July, 1965 gets restored and order of restoration passed on 30th March, 1981 becomes immaterial. It is held accordingly.

31. The facts mentioned above are clear pointers that allotment and registration of the Sub-lease Deed dated 5th July, 1973 in favor of Ms. Sharda Nath was done with undue haste and it appears that there was some interest in ensuring allotment of one plot to Ms. Sharda Nath when allotment was made to other members on the waiting list who were well known political figures and one Mr. Satnam Shah who was entitled to allotment in his own right after the death of his father. There was no occasion or cause to execute the Sub-lease Deed dated 5th July, 1973 in favor of Ms. Sharda Nath when even possession of the plot had not been taken and Mr. Dharam Chand had raised objections with regard to cancellation of plot. We may note here that the Society had issued letters and telegrams claiming that possession of the plot had been taken from Mr. Dharam Chand but this was found to be incorrect when objection were raised. Ms. Sharda Nath was always aware and conscious of the fact that Mr. Dharam Chand was the original allottee and there was a dispute in respect of cancellation of his sub-lease. It is not a case of an unwary purchaser who inspite of verification and due diligence was not aware of an antecedent claim or right of a third person. Ms. Sharda Nath was fully conscious of the claim of Mr. Dharam Chand. She was also aware that dispute had been raised about cancellation of the plot, an injunction order had been passed by the Court and till the claim of Mr. Dharam Chand was fully adjudicated and decided she would not get possession of the plot. In this regard we can also refer to letters written by and to DDA that Sharda Nath cannot be given possession of the plot as the matter was sub-judice and Mr.Dharam Chand had a claim in respect of the plot. Mr H.K Sanghi had filed an counter affidavit in response to WP(C) 744/1974. Ms. Shrada Nath was aware that her right, title and interest in the plot depends upon the right and claim of Mr. Dharam Chand. If the later succeeds and the sub-lease deed in his favor is restored, she cannot claim right on the plot. With open eyes and fully conscious of the claim of Mr. Dharam Chand, Ms. Sharda Nath went ahead and took her chance when she executed sub-lease deed dated 5th July, 1973. The appellant therefore cannot now contend that cancellation of the sub-lease dated 5th July, 1973 is contrary to the terms mentioned therein, beyond Clauses III and IV and the President of India or the Lt. Governor could not have cancelled her sub- lease. The plea of the appellant that as per terms of the sub-lease dated 5th July, 1973, it could not have been declared as null and void, cannot be a ground to allow the writ petition or this appeal. For the same reasons the plea of revisionary rights is also liable to be rejected. Fault and error can be found with the DDA and the appellant in executing the Sub-lease deed dated 5th July,1973, even without taking possession of the plot in question.

32. The Appellant herein Ms. Sharda Nath was aware of the fact that the possession of the plot was still with Mr. Dharam Chand and also the fact that he was trying to get the order of re-entry recalled and get the sub-lease restored. In view of the above facts, it is apparent that the Appellant willfully took a risk by seeking execution of the sub-lease in her favor for the same plot which had been allotted to Mr. Dharam Chand. It was well within the knowledge of the appellant that in case Mr. Dharam Chand succeeds in getting the sub-lease restored, the sub-lease executed in favor of Ms. Sharda Nath would be cancelled. This fact is borne out of the letters written by the appellant Ms. Sharda Nath to the DDA requesting for allotment of an alternate plot in lieu of the Plot in question, subject to the result of the litigation. We may also note that the Appellant has in fact been allotted an alternate plot bearing number I-1 Maharani Bagh, measuring 232.71 Sq Yds.

33. The files also reveal that in 1971 actual physical inspection of plot No. C-70 was undertaken. It was found that garage and servant quarter up to first floor had been constructed and the rest of the plot was lying vacant. There were similar other plots. In fact, a report in respect of 25 plots in all had been submitted. In most of the cases only garage blocks had been constructed and rest of the plot was lying vacant. The file nothings also reveal that a separate note in respect of eight plots was prepared. In respect of plot No. C- 70 it was recorded as under:

5. Sh. Dharam Chand. Plot No. 70-C measuring 800 sq.yds. was allotted to Shri Dharam Chand and the sub-lease of the same was executed on 17.7.65. The normal period of construction expired on 27.5.66 but the building has not been constructed so far. Show-cause notice for non-completion was issued to him on 9.8.71.

It was incorrectly recorded in this note that no building had been constructed on the plot, whereas in fact garage block and first floor thereon had been constructed. This note was approved by the Vice Chairman,DDA as well as Lt. Governor.

34. The appellant has tried to project that restoration of the sub-lease and withdrawal of the re-entry notice did not have sanction and approval of the Lieutenant Governor. This is incorrect. The notes and observations made by the Vice-Chairman for restoration of the lease in favor of Mr. Dharam Chand subject to payment of penalty/composition fee was duly approved by the Lieutenant Governor. Lieutenant Governor is not required to pass a detailed speaking order. It cannot be doubted that the Lieutenant Governor had accepted recommendation of the Vice-Chairman for restoration of the sub-lease deed in favor of Mr. Dharam Chand.

35. Another contention raised by the learned Counsel for the appellant was with regard to the right of the Lt. Governor to restore the lease in favor of the respondent No. 4. It was submitted that such right only vests with the President of India in terms of the sub-lease deed. We do not find any merit in the said contention. We may note here that this objection was not raised in the writ petition as noticed in the impugned judgment. Under Clause X of the lease, all powers exercisable by the Lesser in the lease deed can be exercised by the Chief Commissioner. The Lesser in the present case being the President of India. Under Article 229 of the Constitution of India all contracts made and in exercise of executive power of the Union has to be expressed to be made by the President. All such contracts have to be executed on behalf of the President of India by such persons and in such manner as he made direct or authorise. Clause X of the Sub-lease Deed dated 5th July, 1973 reads as under:

X. (a) All powers exercisable by the Lesser under this Sub-Lease may be exercised by the Chief Commissioner. The Lesser may also authorise any other officer or officers to exercise all or any of the powers exercisable by him under this Sub-Lease.

(b) The Chief Commissioner may authorise any officer or officers to exercise all or any of the powers which he is empowered to exercise under this Sub-Lease except the powers of the Lesser exercisable by him by virtue of sub- Clause (a) above.

36. On going through the original files produced before us by DDA, we find that as per Notification dated 1st February, 1966, the President had directed that contracts and assurances of property made in exercise of the executive power of the Union shall be exercised by the respective officers as specified therein. In terms thereof action has been taken by the Vice Chairman, DDA and Lt. Governor of Delhi. Thus, order for restoration of the sub-lease in favor of Mr. Dharam Chand is in accordance with Clause X. We may also notice that there is a basic flaw or contradiction in the contentions raised by the appellant. The order of re-entry against Mr. Dharam Chand was passed and approved by the Vice Chairman, DDA and Lt. Governor of Delhi. The said officers have also waived and condoned defaults in cases of non-construction.

37. It has been contended by the appellant that a lease is a right to enjoy and possess an immoveable property. It is a valuable constitutional right under Article 300A of the Constitution. There cannot be any doubt about the said proposition. However, the said argument is equally applicable and also supports the case of Mr. Dharam Chand. After all, by cancellation and forfeiture of sub-lease, the said respondent was being deprived of the same very right to enjoy and possess an immovable property. DDA could not have discriminated against Mr. Dharam Chand by not extending time, whereas in other cases time for construction was extended. As per the policy also time could be extended.

38. The Appellant has vociferously contended that there has been violation of principles of natural justice in so far as, no notice and hearing was given to the appellant before their sub-lease was cancelled or declared void. As stated above, the said declaration and cancellation was a natural consequence of restoration of the sub-lease in favor of Mr. Dharam Chand. It is the stand of the respondents that for restoration of the sub-lease of Mr. Dharam Chand, the appellant was not required to be heard and no show cause notice was required to be issued. There may be some merit in the said contention but as subsequent sub-lease had been issued for the same very plot/property in favor of the appellant, it would have been better and more appropriate if the appellant had been informed and given a chance to make a representation. However, we are not inclined to allow the present appeal solely on this basis. Principles of natural justice have to be complied with to ensure that the decision taken is just, fair and appropriate. It also prevents unnecessary litigation by an aggrieved party whose contentions and objections are not heard. Supreme Court in S.L. Kapoor verus Jagmohan reported in (1980) 4 SCC 379, had observed that non-observance of principles of natural justice in itself causes prejudice,but in subsequent cases, the Supreme Court has accepted the doctrine of useless formality theory, at least in cases where there are admitted or indisputable facts (See Aligarh Muslium University v. Mansoor Ali Khan Reported in ). Remote chance of success or real likelihood of success has been applied in some cases (State of Manipur v. Y. Token Singh Reported in ). However, there is unanimity that exercise of writ Jurisdiction is discretionary in cases where there is no violation of the constitutional or mandatory statutory requirements but principles of natural justice have been violated. In such cases, writ courts always have discretion whether or not to grant relief to the petitioner, who approaches the Court on the ground that there is violation of right of hearing. (Refer M.C. Mehta v. UOI and Ors ).

39. In the present case, we have examined the entire case of both the appellant and the respondent No. 4 on merits. Therefore, no purpose would be served at this belated stage to remand the matter back to the Lt. Governor specially when we are satisfied that the order of restoration of lease of respondent No. 4 is just, fair and appropriate. We, therefore, refuse to exercise the discretion to allow the appeal solely on the ground of violation of Principles of Natural Justice. We may also notice here that respondent No. 4, Mr. Dharam Chand had raised objection to the right and entitlement of the appellant to be allotted any plot. It was submitted that Ms. Sharda Nath was 16 years old in 1966, when she was enrolled as a member of the co-operative society and wrongly kept on the waiting list. This it was submitted was contrary to the Bombay Co-operative Societies Act, 1925, and the rules which were applicable at the relevant time. It was also stated that the appellant was a dependent daughter and as her father Mr. H.K. Sanghi had been allotted a plot, no allotment could have been made in her favor in view of Clause 5 of the perpetual lease deed between the President of India and the society. We have referred to the said allegations but refrain from giving any final verdict as it would not be fair to go into these aspects after almost four decades specially when her allotment has been approved by the DDA. In any case the appellant has been allotted plot No. I-1 in the same colony, albeit of a smaller size.

40. The appellant had also raised allegations that the legal representatives of Mr. Dharam chand have entered into agreements with third parties to sell and transfer the property in violation of the terms of the lease. The legal representatives of respondent No. 4 have denied the said allegations and it has been stated that the agreements entered into do not violate terms of the sub-lease deed. We are not examining and going into this aspect and leave it open to the DDA to examine whether there has been violation of the terms of the sub-lease deed, take action as per the terms of the sub- lease deed and their policies. We may note that even if legal representatives of Mr. Dharam Chand have violated terms of the sub-lease deed, the plot/property is liable to be re-entered and vest in the Lesser. This by itself would not revive the sub-lease deed in favor of the appellant. On forfeiture, the property/plot once re-entered would have to be dealt with and transferred to a third party in accordance with law. We do not think the appellant has any preemptive right to allotment of the plot/property, if after restoration of the sub-lease Mr. Dharam Chand or his legal representatives have violated the conditions of the said sub-lease. Right of the appellant to the said property/plot is based and dependent upon restoration of the sub-lease in favor of respondent No. 4. It is this restoration, which was the subject matter of the writ petition and this appeal. The appellant's success or failure in this appeal depends upon whether the restoration of the sub-lease in favor of respondent No. 4 is justified and in accordance with law. Subsequent breach, if any, of the sub-lease by respondent No. 4 or his legal representations will not entitle the appellant to allotment or restore the sub-lease deed in her favor.

41. In view of the aforesaid observations, we find no merit in the present appeal and the same is accordingly dismissed. In view of the facts and circumstances there would be no order as to costs.