Sinha, J. - (1.) The facts in this case are briefly as follows: There exists in the City of Calcutta a racecourse, in a part of the open space popularly known as the Maidan. The petitioner in this application is the Turf Properties Ltd., a company incorporated under the Indian Companies Act. It is the trustee of the Royal Calcutta Turf Club, and of its properties. The petitioner, as such trustee and for and on behalf of the Royal Calcutta Turf Club, took a lease of that part of the Maidan which forms part of the glacis of the Fort William as is enclosed and bounded by the roads known as Lower Circular Road, Jail Road (now known as Casuarina Avenue)' and Kidder-pore Road with the structures "standing thereon and the stands and enclosures. On 9-10-1933 a registered Indenture of lease was executed by the Secretary of State for India in Council in favour of the Turf Properties Ltd. A copy of the lease is annexed to the petition and marked with the letter "A". The lease came into effect from 1-1-1932 for a term of 30 years, upon a yearly rent of Rs. 20,000/- payable by quarterly instalments, such payments to be made to the Executive Engineer, First Calcutta Division, at Calcutta. The lease contained several covenants. There is a covenant that during the demise the lessee will-pay and discharge ail rates and taxes, duties, charges, assessment and outgoings whatsoever, which are then, or may at any time thereafter, be assessed charged or imposed upon the demised lands buildings and erections then standing or to be erected at any time thereon. No additional buildings or erections could be put up without approval of the Secretary of State, to be signified through the Commissioner of Police, Calcutta or such other officer as may be appointed by him for that purpose. The lessee would not be allowed, to break up the surface of the land or lay any drains or pipes or alter or in any way affect the existing state, character, appearance and conditions of the drainage or make any alterations or additions to the stands, buildings, erection, fences, etc., without such consent. There was a covenant against assignment, transfer or under-letting. There are two covenants which require special mention and I will set them out : "2 (X). And also will permit the Secretary of State and all or any of the Military Authorities of India and all officers under their command or direction at any time and from time to time duping the said term hereby granted to enter upon the said land hereby demised or any part thereof with any number of troops and use or occupy the same for the training and exercise of such troops in such manner in all respects as in the opinion of him or them shall seem necessary or desirable and the Lessee shall have no claim for compensation against the Secretary of State of the said Military Authorities of India by reason of any damage to the said land or any part thereof which shall or may be caused by reason of such training of exercising of troops as aforesaid.'' "4 (II), If at any time during the term hereby granted the Secretary of State shall be desirous of resuming the land hereby demised or any part thereof for military purpose only but not otherwise and of such his desire shall give to the Lessee or leave on the premises or at the office or club house for the time being of the Royal Calcutta Turf Club in Calcutta notice in writing under the hand of one of the Secretaries to the Government of Bengal for the time being then and in such case this present lease and everything herein contained shall thereupon absolutely cease and determine but without prejudice to any claim by the Secretary of State against the Lessee in respect of any antecedent breach of any covenant or condition herein contained and the Lessee shall have no claim against the Secretary of State for damages or otherwise."
(2.) In paragraph 4 of the present petition, it is stated that the rights of the Secretary of State for India in the said lands were now vested in the Union of India and that since 26-1-1950 the Union of India has been and still is, owner of the said lands. This is not denied in the affidavit in opposition but reference has been made to the lease. This is an aspect of the matter to which I shall have to come back later on.
(3.) Since the issuing of this rule, the President of India has executed a fresh lease in fav-our of the petitioner as the trustee of the Royal Calcutta Turf Club, dated 29-11-1954, The lease is upon the footing that the land is now vested in the President and is for a period of thirty years from 1-1-1962. It contains similar covenants as set out above.;