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11. We may highlight that in fact issue No.2 would be the principal issue and has to be treated as issue No.1, for the reason, if L&DO had no power to raise any demand to regularize the breach in the shape of an unauthorized construction or misuse, the first question would lose significance for the reason L&DO was not threatening any demolition action. It was only demanding damages due to unauthorized constructions.

12. The case of the petitioners before the learned Single Judge was that the lease was a government grant and thus the Government Grants Act 1895 applied to the same and the mandate of Section 2 and Section 3 of the said Act made it clear that the terms of a grant would take effect according to their tenor and the government had the unfettered discretion to impose any condition, limitations or restrictions in the grant, notwithstanding any contrary provision of a statute or of common law. It was urged that there being no power under the grant i.e. the perpetual lease deeds executed, to levy any damages for any kind of misuse or unauthorized construction; by an executive instruction i.e. Office Order No.23/1976 no such right could be created in favour of L&DO. On the issue of the unauthorized constructions not being liable to be demolished, it was urged that all subject properties were comprised in an area within the jurisdiction of New Delhi Municipal Committee, governed in its functioning by the Punjab Municipal Act 1911; and as per Section 195 thereof, period of limitation prescribed to demolish an unauthorized construction was 6 months from the date the unauthorized construction was noted. It was urged that the alleged unauthorized constructions were admittedly detected long time back i.e. preceding much beyond 6 months of the date of the demand and thus it was urged that if the unauthorized constructions could not be demolished, no demand for regularization/condonation thereof could be raised nor could such a demand be put as a condition of it being satisfied before permission was accorded to convert the lease-hold tenure to free-hold tenure.

17. With respect to the question whether the alleged unauthorized construction could be demolished, on the strength of Section 195 of the Punjab Municipal Act 1911 and a decision of a Division Bench of this Court reported as AIR 1973 Delhi 198 Delhi Municipality vs. Surjit Kaur, the learned Single Judge has held that if within 6 months of the unauthorized construction being booked the notice of demolition is issued, no action for demolition could be taken beyond the said period. With respect to the property of respondent No.17, i.e. petitioner No.17, it is held that the alleged unauthorized construction was carried out over 50 years back. We note that the learned Single Judge has noted an argument in para 14 of the impugned decision that the demolition of an unauthorized construction not being possible due to limitation had no bearing on damages payable for the unauthorized construction, but has not dealt with the same.

46. The situation was akin to a civil mutiny; it was more than mass disobedience. Taking cognizance of the ground realities, the Ministry of Urban Development thought it better to condone all such sale transactions, masquerading as agreement to sell, and regularize the same and simultaneously get rid of the cause of the problem; at the same time enrich the Government coffers, by converting all lease-hold tenures to free-hold tenures. A scheme of conversion was notified on February 14, 1992 as per which the lessee could pay a price charged and thereupon obtain a conveyance transferring title in the land to the lessee, free from any encumbrance or condition. The policy also envisaged that those who had obtained possession under agreements to sell and power of attorney could also regularize their title as a free-hold title. These persons had to pay a surcharge of 33.1/3% of the charge otherwise payable to have the land tenure converted into free-hold. The policy also took note of either there being a misuse in the land or the building or an unauthorized construction, which as per the covenants of the lease-deeds, had made liable the lease-hold interests to be determined and in some cases the determination had already taken place and re-entry notices had been issued. The policy required, in cases of misuse or unauthorized construction, to stop the misuse and/or remove the unauthorized constructions and pay damages for the period the misuse continued and/or the unauthorized construction existed. Clause 1.14 of the Policy stipulated:-

(F) Procedural fairness in the levy and demand of damages on account of misuse and/or unauthorized construction as explained in Hari Prakash‟s case (supra), Saheb Singh‟s case (supra), Sant Ram Sodhi‟s case (supra) and Ram Prakash (Professor)‟s case (supra) would have to be observed by the lessor on the subject of levy and demand of damages on account of misuse and/or unauthorized construction.

(G) If limitation has expired for a municipality, to enforce the municipal law, pertaining to an unauthorized construction, thereby preventing the municipality from demolishing the unauthorized construction would not be a bar for the lessor to take action as per the lease for violation of a term of the lease.