Panchkuian Road Refugee Vyapar … vs Delhi Metro Rail Corporation And … on 2 June, 2006

JUDGMENT

Vikramajit Sen, J.

Page 2360

1. This batch of writ petitions is concerned with the eviction of the Petitioners from shops duly allotted to them or their forefathers for reestablishing them, their trade and thereby rehabilitating them pursuant to their traumatic dislocation in the aftermath of the Partition, a half-century ago.

2. The prayers in these writ petitions read thus:

(a) Issue a writ, order or direction in the nature of Certiorari calling for the records containing the proposal to acquire the land on which the Petitioners No. 2-105 have their shops on the Panchkuian road ostensibly for the purpose of line-3, Barakhamba Road-Dwarka line of the Respondent No. 1 Corporation and consequent road widening and construction of sidewalk and quash the identical notices dated Page 2361 25.8. 2005 bearing number dmrc/land/15/428/773, 832 to 919. Threatening the Petitioners with demolition of their shops as acquisition is in excess of the genuine need of the Respondent No. 3 sought to be acquired for no justified reasons on extraneous considerations.

(b) Issue a writ, order or direction in the nature of mandamus directing the Respondents not to dispossess the Petitioners from their shops as Petitioners are prepared to hand over the possession of the eight feet of land from their respective shops for line-3 Barakhamba Road-Dwarka Metro Rail project of the Respondent No. 1 and road widening/construction of sidewalk.

(c) Pass any other order which this Court may deem fit and proper in the facts and circumstances of this case.

PRELIMINARY OBJECTIONS

(a) Disputed Questions of fact.

3. Mr. Raj Birbal, the learned Senior Advocate for the MCD, has raised a preliminary objection pertaining to the maintainability of the writ petitions on the grounds that manifold disputed questions of facts would have to be determined by this Court. In D.L.F. Housing Construction (P) Ltd. v. Delhi Municipal Corporation , the Hon’ble Court has opined that ‘where the basic facts are disputed and complicated questions of law and fact depending on evidence are involved the writ Court is not the proper forum for seeking relief’. In Sohanlal v. Union of India [1957] SCR 738 the question that had arisen was whether the ‘eviction of Jagan Nath was in contravention of the express provisions of s. 3 of the Public Premises (Eviction) Act. His eviction, therefore, was illegal. He was entitled to be evicted in due course of law and a writ of mandamus could issue to or an order in the nature of mandamus could be made against the Union of India to restore possession of the property to Jagan Nath from which he had been evicted the property was still in the possession of the Union of India. The property in dispute, however, is in possession of the appellant. There is no evidence and no finding of the High Court that the appellant was in collusion with the Union of India or that he had knowledge that the eviction of Jagan Nath was illegal. Normally, a writ of mandamus does not issue to or an order in the nature of mandamus is not made against a private individual. Such an order is made against a person directing him to do some particular thing, specified in the order, which appertains to his office and is in the nature of a public duty (Halsbury’s Laws of England Vol. II, Lord Simonds Edition. p. 84). If it had been proved that the Union of India and the appellant had colluded, and the transaction between them was merely colourable, entered into with a view to deprive Jagan Nath of his rights, jurisdiction to issue writ to or make an order in the nature of mandamus against the appellant might be said to exist in a Court’. This decision in my view advances the cause of the Petitioners who are in possession of the shops for several years and against whom neither civil eviction proceedings nor ejectment proceedings under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as `Public Premises Act’) have Page 2362 been initiated. The Constitution Bench was concerned with the legal propriety of a petition for the issuance of a writ of prohibition under Article 32 of the Constitution which had been filed during the pendency of an Enquiry under Section 4(h) of the Bihar Land Reforms Act. It was in that context that the petition came to be dismissed. In National Textile Corporation Ltd. v. Haribox Swalram , the Hon’ble Court had taken note of a serious challenge to the authenticity of a document in the realm of a contractual dispute and in that regard had found that a writ petition was inappropriate.

4. In ABL International Ltd. v. Export Credit Guarantee Corporation of India Limited , the following principles have been culled out and explained :

27. From the above discussion of ours, following legal principles emerge as to the maintainability of a writ petition:

(a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable.

(b) Merely because some disputed questions of facts arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule.

(c) A writ petition involving a consequential relief of monetary claim is also maintainable.

28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the Court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The court has imposed upon itself certain restrictions in the exercise of this power [See: Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors. ]. And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the court thinks it necessary to exercise the said jurisdiction.

5. In State of U.P. v. Johri Mal JT 2004 (Suppl. 1) SC 443, this question was also cogitated upon as is clear from a reading of the following passage:

30. It is well-settled that while exercising the power of judicial review the court is more concerned with the decision making process than the Page 2363 merit of the decision itself. In doing so, it is often argued by the defender of an impugned decision that the court is not competent to exercise its power when there are serious disputed questions of facts; when the decision of the tribunal or the decision of the fact finding body or the arbitrator is given finality by the statute which governs a given situation or which, by nature of the activity the decision maker’s opinion on facts is final. But while examining and scrutinizing the decision making process it becomes inevitable to also appreciate the facts of a given case as otherwise the decision cannot be tested under the grounds of illegality, irrationality or procedural impropriety. How far the court of judicial review can re-appreciate the findings of facts depends on the ground of judicial review. For example, if a decision is challenged as irrational, it would be well-nigh impossible to record a finding whether a decision is rational or irrational without first evaluating the facts of the case and coming to a plausible conclusion and then testing the decision of the authority on the touch-stone of the tests laid down by the court with special reference to a given case. This position is well settled in Indian administrative law. Therefore, to a limited extent of scrutinizing the decision making process, it is always open to the court to review the evaluation of facts by the decision maker.

6. On the amplitude and absence of any frontiers of the extraordinary powers of the High Court under Article 226 of the Constitution it would also be relevant to revert to the enunciation of the law in Comptroller and Auditor-General of India, Gian Prakash, New Delhi v. K.S. Jagannathan :

18. The first contention urged by learned Counsel for the appellants was that the Division Bench of the High Court could not issue a writ of mandamus to direct a public authority to exercise its discretion in a particular manner. There is a basic fallacy underlying this submission–both with respect to the order of the Division Bench and the purpose and scope of the writ of mandamus. The High Court had not issued a writ of mandamus. A writ of mandamus was the relief prayed for by the respondents in their writ petition. What the Division Bench did was to issue directions to the appellants in the exercise of its jurisdiction under article 226 of the Constitution. Under Article 226 of the Constitution every High Court has the power to issue to any person or authority, including in appropriate cases, any government, throughout the territories in relation to which it exercises jurisdiction, directions, orders, or writs including writs in the nature of habeas corpus, mandamus, quo warranto and certiorari or any of them, for the enforcement of the Fundamental Rights conferred by Part III of the Constitution or for any other purpose. In Dwarkanath v. ITO this Court pointed out that Article 226 is designedly couched in a wide language in order not to confine the power conferred by it only to the power to issue prerogative writs as understood in England, such wide language being used to enable the High Courts ‘to reach injustice wherever it is found’ and ‘to mould the Page 2364 reliefs to meet the peculiar and complicated requirements of this country.’ In Hotchtief Gammon v. State of Orissa this Court held that the powers of the courts in England as regards the control which the Judiciary has over the Executive indicate the minimum limit to which the courts in this country would be prepared to go in considering the validity of orders passed by the government or its officers.

19. Even had the Division Bench issued a writ of mandamus giving the directions which it did, if circumstances of the case justified such directions, the High Court would have been entitled in law to do so for even the courts in England could have issued a writ of mandamus giving such directions. Almost a hundred and thirty years ago, Martin, B., in Mayor of Rochester v. Regina said: But, were there no authority upon the subject, we should be prepared upon principle to affirm the judgment of the Court of Queen’s Bench. That court has power, by the prerogative writ of mandamus, to amend all errors which tend to the oppression of the subject or other misgovernment, and ought to be used when the law has provided no specific remedy, and justice and good government require that there ought to be one for the execution of the common law or the provisions of a statute : Comyn’s Digest, Mandamus (A) …. Instead of being astute to discover reasons for not applying this great constitutional remedy for error and misgovernment, we think it our duty to be vigilant to apply it in every case to which, by any reasonable construction, it can be made applicable. The principle enunciated in the above case was approved and followed in King v. Revision Barrister for the Borough of Hanley. In Hochtief Gammon case this Court pointed out (at p. 675 of Reports : SCC p. 656) that the powers of the courts in relation to the orders of the government or an officer of the government who has been conferred any power under any statute, which apparently confer on them absolute discretionary powers, are not confined to cases where such power is exercised or refused to be exercised on irrelevant considerations or on erroneous ground or mala fide, and in such a case a party would be entitled to move the High Court for a writ of mandamus. In Padfield v. Minister of Agriculture, Fisheries and Food the House of Lords held that where Parliament had conferred a discretion on the Minister of Agriculture, Fisheries and Food, to appoint a committee of investigation so that it could be used to promote the policy and objects of the Agricultural Marketing Act, 1958, which were to be determined by the construction of the Act which was a matter of law for the court and though there might be reasons which would justify the Minister in refusing to refer a complaint to a committee of investigation, the Minister’s direction was not unlimited and if it appeared that the effect of his refusal to appoint a committee of investigation was to frustrate the policy of the act, the court was entitled to interfere by an order of mandamus. In Halsbury’s Laws of England, 4th edn., vol. I, para 89, it is stated that the purpose of an order of mandamus is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, Page 2365 although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual.

20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion.

There is, in this analysis, no reason for the Writ Court to hesitate to exercise writ jurisdiction, even if it requires a quick decision pertaining to the facts germane to the issue, if the circumstances so compel. It ought not to be overlooked that the jural principle of not venturing into a determination of disputed questions of fact is a limitation imposed by Judges upon themselves, which cannot be relied upon any party who does so in order to defeat the ends of justice.

7. On behalf of Respondents reliance has been placed on Manager, St. Thomas U.P. School Kerala v. Commissioner and Secy. to General Education Deptt. , where the Apex Court recorded its ‘disapproval of the High Court entertaining the writ application at all. Both the Single Judge and the Division Bench have determined what were clearly disputed questions of fact without the benefit of a full-scale trial. The appellants have drawn our attention to evidence which, according to them, conclusively proves that the School was a minority institution and which was not considered by the High Court. We do not propose to commit the same mistake as the High Court. Given the nature of the dispute, the issue of the status of the School should have been left to the fact-finding authorities whether executive or judicial for determination in jurisdictions equipped for the purpose’. The same enunciation of the law is to be found in Rourkela Shramik Sangh v. Steel Authority of India Ltd. , in which it had been observed that ‘a Page 2366 disputed question of fact normally would not be entertained in a writ proceeding’. In State of M.P. v. M.V. Vyavsaya and Co. , the Apex Court frowned on the approach of the Single Judge of the High Court in continuing to exercise writ jurisdiction in circumstance where the facts were seriously in dispute. It was opined that ‘where there are disputed questions of fact, the High Court does not normally go into or adjudicate upon the disputed questions of fact’.

8. Similar views have been expressed in R.K. Panda v. Steel Authority of India , where the Court observed that ‘whether the contract labourers have become the employees of the principal employer in course of time and whether the engagement and employment of labourers through a contractor is a mere camouflage and a smokescreen, as has been urged in this case, is a question of fact and has to be established by the contract labourers on the basis of the requisite material. It is not possible for the High Court or this Court, while exercising writ jurisdiction or jurisdiction under Article 136 to decide such questions, only on the basis of the affidavits.’

9. In the light of these decisions of the Supreme Court on both sides of the watershed a careful analysis would lead to the conclusion that where the factual matrix can be finalised only after a minute and detailed consideration of rival stands writ jurisdiction should not be invoked. However, if the Court feels compelled by the call of justice and good conscience to decide factual controversies which are superficial in nature, the self-imposed restrictions would not act as an unsurmountable obstacle.

10. It appears to me that the preliminary objection pertaining to the existence of disputed questions of fact in the present case is indeed a double-eged sword. So far as the Respondents are concerned the nebulous nature of the controversy is clouded round the legal status of the Petitioners, namely whether they enjoy the status of tenants or of licensees/tehbazaaris. Assuming that the Respondents’ assessment is true, it is impermissible for them to arrogate and assign to themselves the power to decide this debate. No party should act as a judge in their own cause. The observations in Sohanlal and the more popular precedent of Express Newspapers Pvt. Ltd. v. Union of India become poignant since the Respondents have resorted to either the ordinary civil adjudicatory machinery or even the Public Premises Act. Governments may conduct a requiem for civil rights, but Courts will resolutely refuse to join in the funeral. The jural taboo is for the writ Court to decide disputed facts; this does not mean that where the factual matrix is fluid the Court cannot decide other issues that also arise. In other words, the course that commends itself to me is to accept that the facts are highly controversial, and therefore they must be adjudicated upon via the avenue of known and ordinary legal process. The Respondents could also Page 2367 have resorted to the provisions of the Land Acquisition Act, as they have done in several other cases where property rights have presented problems to the progress of the DMRC project. When the prayers in the writ petitions are perused it will become evident and manifest that the Petitioners’ challenge is to the manner in which the Respondents have attempted to remove them from premises allotted to them over a half century ago, which premises have provided them their sustenance and livelihood from the day of their displacement due to Partition. Society as a whole must contribute for public development and not just the few whose rights appear to collide with it. Seeking a dismissal of the petitions on technicalities would annihilate the right of the citizen to seek a judicial review of the decision of the Government. The Petitioners are in essence only praying for this, if a holistic reading of the prayers is undertaken. This preliminary objection is therefore not tenable.

PRELIMINARY OBJECTIONS

(b) Writs and Contractual Rights

11. A plethora of precedents has evolved on the very interesting aspect of the law viz. interplay between writ jurisdiction and contractual disputes. In Indian Oil Corporation Ltd. v. Amritsar Gas Service , the attention of the Court revolved around the validity of an Award. A distinction was sought to be made between actions of an Authority under Article 12 of the Constitution in its commercial dealings and other dealings of a public nature. The Court noted that the claim in the Suit was based on breach of contract alone and the Arbitrator had also proceeded only on that predication and therefore, it declined to go into the constitutional constraints of Article 14 particularly in view of the contemporaneous decisions in Dwarkadas Marfatia and Sons. v. Board of Trustees of the Port of Bombay and Mahabir Auto Stores v. Indian Oil Corporation . The Apex Court observed that they were dealing with a suit (in contradistinction to a writ) based on a breach of contract and remedies flowing there from in the context to which the Arbitrator had given his Award. Another decision of the same era is Bareilly Development Authority v. Ajai Pal Singh which laid down that where the State entered into a non-statutory contract, a dispute pertaining to the cost of houses would not be amenable to writ jurisdiction. The court noted that such question could not be labelled as arbitrary and discriminatory, meaning thereby, that if either of these elements were perceived, corrective action via writ jurisdiction would be available. The larger Bench in Marfatia had opined that a public body even in respect of its dealing with its tenant must act in public interest and an infraction of that duty would be amenable to examination either in a civil suit or in writ jurisdiction. The ratio of Mahabir Auto is that the State or its instrumentality Page 2368 when engaged in commercial transactions must act reasonably, and should inform and take into confidence the adverse party against whom adverse action is contemplated. In Kerala State Electricity Board v. Kurien E. Kalathil the Court repelled an effort to invoke writ powers where the dispute concerned the interpretation and implementation of a clause in a contract.

12. Over thirty years ago the Hon’ble Supreme Court had clarified in Gujarat State Financial Corporation v. Lotus Hotels Pvt. Ltd. that it was too late in the day to contend that the ‘State can commit breach of a solemn undertaking on which other side has acted and then contend that the party suffering by the breach of contract may sue for damages but cannot compel specific performance of the contract’. The Apex Court applied the principle of promissory estoppel for enforcement of such contractual undertakings. Thereafter, similar views have been expressed in Kumari Shrilekha Vidyarthi v. State of U.P. by a Bench comprising J.S. Verma, J. (as the learned Chief Justice then was) and R.M. Sahai, J. Contemporaneously, the Bench presided by Sabyasachi Mukharji (as the learned Chief Justice then was) and S. Ranganathan, J. held in Salonah Tea Company Ltd. v. Superintendent of Taxes, Nowgong that a Writ Court was competent to order a refund of tax deposited under a mistaken understanding of the law. In Smt. Nilabati Behera v. The State of Orissa the Apex Court did not find any fetters in granting relief to heirs of a victim of custodial death on the foundation of an infraction of fundamental rights guaranteed under Article 21 of the Constitution of India and observed as follows:

Adverting to the grant of relief to the heirs of a victim of custodial death for the infraction or invasion of his rights guaranteed under Article 21 of the Constitution of India, it is not always enough to relegate him to the ordinary remedy of a civil suit to claim damages for the tortuous act of the State as that remedy in private law indeed is available to the aggrieved party. The citizen complaining of the infringement of the indefeasible right under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right of life, he cannot get any relief under the public law by the Courts exercising writ jurisdiction. The primary source of the public law proceedings stems from the prerogative writs and the Courts have, therefore, to evolve ‘new tools’ to give relief in public law by moulding it according to the situation with a view to preserve and protect the Rule of Law. While concluding his Page 2369 first Hamlyn Lecture in 1949 under the tile ‘Freedom under the law’ Lord Denning in his own style warned:

No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do things which they ought not to do: and will not do things that they ought to do. But if and when wrongs are thereby suffered by any of us what is the remedy Our procedure for securing our personal freedom is efficient, our procedure for preventing the abuse of power if not. Just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the winning of freedom in the new age. They must be replaced by new and up-do-date machinery, by declarations, injunctions and actions for negligence. This is not the task of Parliament, the Court must do this. Of all the great tasks that lie ahead this is the greatest. Properly exercised the new powers of the executive lead to the welfares state; but abused they lead to a totalitarian state. None such must ever be allowed in this country.

It was opined that the primary source of the public law proceedings stems from the prerogative writs and the courts have, therefore, to evolve ‘new tools’ to give relief in public law by moulding it according to the situation with a view to preserve and protect the Rule of Law.

13. In Pioneer Publicity Corporation v. Delhi Transport Corporation , I had to consider whether an injunction could be issued against the DTC thereby preventing it from breaching the contract between the parties. Several decisions of the Supreme Court were discussed, including Amritsar Gas and Shrilekha Vidyarthi. I had granted the injunction and it was affirmed by the Division Bench. No doubt that injunction was passed in proceedings under Section 9 of the Arbitration and Conciliation Act and Order XXXIX of the Code of Civil Procedure, 1908, but I find reason to extrapolate the thesis even to writ petitions, albeit, with greater care and circumspection. The freedom which exists under the realm of private contract in respect of the performance of contractual obligation does not apply in the same measure where the Government is a party. Every action of the Government has to pass the rigorous inquisition of fair play, lack of arbitrariness, and its being founded on good and sound reasons. Government’s freedom to contract as well as freedom to break free from the obligations of a contract is now rightly restricted in diverse manners. While the Government may enjoy the role of distribution of largesse, it may also suffer from the vulnerability of committing errors or perpetrating an inequitable or unjust implementation of its policies through its faceless and unidentifiable officers and agents. It, therefore, behoves the Court to treat Government contracts in a manner altogether different to that of the compact between private parties. The Hon’ble Supreme Court has opined that even where the State is empowered by a particular clause in a contract to terminate it by a notice simplicitor, the Page 2370 only possible construction that can be given to such a clause is that the reasons which prevailed upon it for justifying the termination need not be conveyed to the adversary. The Apex Court has clarified that such a clause does not permit the taking of arbitrary, biased, unreasonable or an ill-informed decisions. It should also be recalled that in ABL International it has been clarified that writ petitions are maintainable even in respect of contractual obligations of the State. In State of Jammu and Kashmir v. Ghulam Mohd. Dar , after noting that writs in the nature of mandamus would not ordinarily issue for enforcement of a contract, it has been observed that a writ can issue when questions of public law character arise for consideration.

14. On the strength of the case law discussed above, I am of the opinion that a Writ Petition is maintainable even in respect of contractual or commercial dealings of an Authority within the sweep of Article 12 of the Constitution. While looking into disputes of this genre the Court has always to be vigilant not to trespass into the purely commercial or private character of the dispute. The scope of its investigation or the ambit of judicial review should be restricted to the presence or adherence to principles of natural justice and absence of Wednesbury unreasonableness. These very observations have been made in State of NCT of Delhi v. Sanjeev .

17. The court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability enumerated above; like illegality, irrationality and procedural impropriety. Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient.

18. The famous case commonly known as ‘the wednesbury case’ is treated as the landmark so far as laying down various basic principles relating to judicial review of administrative or statutory direction.

19. Before summarizing the substance of the principles laid down therein we shall refer to the passage from the judgment of Lord Greene in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (KB at p.229 : All ER pp. 682 H-683 A). It reads as follows:

…It is true that discretion must be exercised reasonably. Now what does that mean Lawyers familiar with the phraseology under in relation to exercise of statutory discretions often use the word ‘unreasonable’ in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to Page 2371 consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting ‘unreasonably’. Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers of the authority. …In another, it is taking into consideration extraneous matters. It is unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another.

Lord Greene also observed (KB p. 230 : All ER p. 683 F-G)…it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body can come to. It is not what the court considers unreasonable. The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another. Therefore, to arrive at a decision on ‘reasonableness’ the court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four concerns of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the court to substitute its view.

20. The principles of judicial review of administrative action were further summarised in 1985 by Lord Diplock in CCSU case as illegality, procedural impropriety and irrationality. He said more grounds could in future become available, including the doctrine of proportionality which was a principle followed by certain other members of the European Economic Community. Lord Diplock observed in that case as follows : (All ER p. 950h-j.) Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call ‘illegality’, the second ‘irrationality’ and the third ‘procedural impropriety’. That is not to say that further development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of ‘proportionality’ which is recognised in the administrative law of several of our fellow members of the European Economic Community.

Lord Diplock explained ‘irrationality’ as follows: (All ER p. 951 a-b) By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.

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15. The extracted enunciation of law can be found in Karnataka State Industrial Investment and Development Corporation Ltd. (2005) 4 Supreme Court Cases 456-

19. From the aforesaid, the legal principles that emerge are:

(i) The High Court while exercising its jurisdiction under Article 226 of the Constitution does not sit as an appellate authority over the acts and deeds of the Financial Corporation and seek to correct them. The doctrine of fairness does not convert the writ courts into appellate authorities over administrative authorities.

(ii) In a matter between the Corporation and its debtor, a writ court has no say except in two situations:

(a) there is a statutory violation on the part of the Corporation, or

(b)where the Corporation acts unfairly i.e. unreasonably.

(iii) In commercial matters, the court should not risk their judgments for the judgments of the bodies to which that task is assigned.

The Apex Court does not state that Writ Petitions are not maintainable in any contractual matter; it advocates and recommends that the Court should not hastily interfere with the impugned commercial decision. The observations were made in the context of the sale of the property of the Borrower. The argument that Court should decline to exercise extraordinary jurisdiction under Article 226 of the Constitution, no sooner it comes across contractual or private dealings, is so broadly stated that it must be rejected summarily. This is also the approach that has been preferred by several Benches of this Court including A.K.Sikri, J. in Bharat Filling Station v. Indian Oil Corporation Ltd. ; Sanjay Kishan Kaul, J. in Allied Motors Ltd. v. Bharat Petroleum Corporation Ltd. 113 (2004) DLT 599 and Vinay Construction Co. v. Municipal Corporation of Delhi ; Badar Durrez Ahmad, J. in SPS Engineering Ltd. v. Indian Oil Corporation Ltd. . In National Highways Authority of India v. Ganga Enterprises the Court had formulated the main issue before it to be ‘whether the writ petition is maintainable in a claim arising out of a breach of contract’. It then observed that disputes relating to contracts cannot be agitated under Article 226 of the Constitution. The Court did not and could not have overruled the ratio in ABL International.

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16. Indeed, the law pertaining to writs has developed in leaps and bounds by the Apex Court especially so far as contractual dealings of the State or any other ‘Authority’ is concerned, even in the realm of contract. The origins of writs are several centuries in antiquity when the State seldom ventured into contractual dealings with its subjects. This position has changed drastically. A vigilant citizen would be expected to guard against illegal or unethical conduct from another citizen, but when he deals with the State or an ‘Authority’ he should be able to rest assured of fair and ethical dealings, with full compliance with the mandates of Article 14 and the principles of natural justice. In Amritsar Gas Service this question was decidedly left open. Especially in view of the exposition of law found in ABL International it is no longer legitimate for the State to contend that it can act in an arbitrary or partisan or illegal manner merely because its activities fall within the realm of contract. It would indeed be a retrograde step if such actions would be insulated against and become impervious to the Constitutional powers reposed in the Writ Court under Article 226. In these circumstances the objection that this Writ is not maintainable because it deals fundamentally with contractual relations between an Authority and a private citizen is without merit and is rejected.

PRELIMINARY OBJECTIONS

(c)Existence of Enforceable Rights

17. This question will stand automatically answered on the conclusion of the debate on the nature of the Petitioners possession, i.e., whether as tenants, licensees or ‘tehbazarees’.

PROPERTY PROTECTION RIGHTS

18. The legal position pertaining to parameters of a person’s power to protect his property, or in the alternative the extent to which a person can venture to regain control of his property, has been dealt with in Section 6 of the Specific Relief Act. The Restatement of the law is conveniently available in the perspicuous judgment of the Apex Court authored by Chief Justice Lahoti in Rama Gowda v. M. Varadappa Naidu , of which the following extract deserves reproduction —

8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the user of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in a peaceful and settled possession by injunction even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful Page 2374 owner (of course subject to the law of limitation), if the latter has dispossessed the prior possession by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed while the rightful owner did not have enough time to have recourse to law. In the last of the case, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.

9. It is the settled or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram and Ors. v. Delhi Administration , Puran Singh and Ors. v. The State of Punjab and Ram Rattan and Ors. v. State of Uttar Pradesh . The authorities need not be multiplied. In Munshi Ram and Ors.’s case (supra), it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A causal act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and re-instate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh and Ors.’s case (supra), the Court clarified that it is difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into settled possession. The `settled possession’ must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt of concealment by the trespasser. The phrase `settled possession’ does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a strait-jacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. Page 2375 The court laid down the following tests which may be adopted as a working rule for determining the attributes of `settled possession’

(i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;

(ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;

(iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and

(iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession.

19. I shall refrain from multiplying precedents dealing with this aspect of the law beyond Anamallai Club v. Govt. of T.N. and shall confine reference to the passage extracted below which deserves careful reading:

5. The question is whether the resumption of possession unilaterally, after determination of the grant in the manner provided under the grant itself, is valid in law as was held by the High Court We think that the view taken by the High Court is not correct in law. In Bishan Das v. State of Punjab a Constitution Bench of this Court had considered the question whether the Government could unilaterally take possession of the land after termination of the lease. One Ramjidas had built a dharmashala, a temple and shops appurtenant thereto, after having a license of land from the State Government. The lease was terminated and thereafter when the persons in possession were sought to be dispossessed, without taking any recourse to law, they filed a writ petition under Article 226 but remained unsuccessful. When the writ petition under Article 32 was filed, this Court had considered the question whether the government is entitled to resume the land with a minimum use of force for ejectment without recourse to law. It was contended therein that there was no dispute as to the question of fact between the parties that the petitioners therein had no right and title to the subject-matter in dispute. The writ petition under Article 226 was dismissed on the ground of the disputed question of fact which was upheld in appeal by the Division Bench. A writ petition under Article 32 was filed. The right to possession of land was a fundamental right at that time. It was contended that the government terminated the lease, as thereafter they were trespassers and so they had no right to resist the Government’s power to resume the land. This Court had repelled both the contentions Page 2376 as unsound and had held that the Government violated the fundamental right to possession of land since the petitioners therein were not trespassers. They remained in possession for a long time. Pursuant to the lease, they had constructed dharmashala, temple and shops and managed them during the lifetime of the licensee. After his death, the petitioner and members of the family continued in possession of and in management of the properties which was an admitted possession. Therefore, they were not mere trespassers in respect of the said properties. It was held that on the admitted facts of the case, the petitioners therein could not be said to be trespassers in respect of the dharmashala, temple and shops nor could the State be said to be the owner of the property, irrespective of whether it was a trust, public or private having taken the possession unilaterally. It was open to the State to take appropriate legal saction for the purpose. It was also held that the State could not remove them from possession except under the authority of law. The same view was reiterated by this Court in State of U.P. v. Maharaja Dharmander Prasad Singh thus : (SCC pp. 516-17, paras 30 and 31)

A Lesser, with the best of title, has no right to resume possession extra-judicially by use of force, from a lessee, even after the expiry of earlier termination of the lease by forfeiture or otherwise. The use of the expression ‘re-entry’ in the lease deed does not authorise extra-judicial methods to resume possession. Under law, the possession of a lessee, even after the expiry or its earlier termination is judicial possession and forcible dispossession is prohibited; a lessee cannot be dispossessed otherwise than in due course of law. In the present case the fact that the Lesser is the State does not place it in any higher or better position. On the contrary, it is under an additional inhibition stemming from the requirement that all actions of government and governmental authorities should have a ‘legal pedigree’. In Bishan Das v. State of Punjab this Court said : (SCR pp. 79-80)

We must, therefore, repel the argument based on the contention that the petitioners were trespassers and could be removed by an executive order. The argument is not only specious but highly dangerous by reason of its implications and impact on law and order….

Before we part with this case, we feel it our duty to say that the executive action taken in this case by the State and its officers is destructive of the basic principle of the rule of law’.

Therefore, there is no question in the present case of the Government thinking of appropriating to itself an extra-judicial right of re-entry. Possession can be resumed by Government only in a manner known to or recognised by law. It cannot resume possession otherwise than in accordance with law. Government is, accordingly, prohibited from taking possession otherwise than in due course of law

6. In Lallu Yeshwant Singh v. Rao Jagdish Singh a Bench of this Court had considered the same question after reviewing the case-law in that behalf and held that the Government cannot take possession of the land except in accordance with the procedure prescribed under the Act. In that case, recourse to the provisions under Section 9 of the Specific Page 2377 Relief Act (Section 6 of the present Specific Relief Act, 1963) was upheld. The question was also considered by this Court by one of us (K. Ramaswamy, J.) in East India Hotels Ltd. v. Syndicate Bank. It was held in paras 29, 30 and 32 that : (SCC pp.44-47)

They must obtain such possession as they are entitled to by proper course. In our jurisprudence governed by rule of law even an unauthorised occupant can be ejected only in the manner provided by law. The remedy under Section 6 is summary and its object is to prevent self-help and to discourage people to adopt any means fair or foul to dispossess a person unless dispossession was in due course of law or with consent.

What is meant by due course of law Due course of law in each particular case means such an exercise of the powers by duly constituted tribunal or court in accordance with the procedure established by law under such safeguards for the protection of individual rights. A course of legal proceedings according to the rules and principles which have been established in our system of jurisprudence for the enforcement and protection of private rights. To give such proceedings any validity, there must thus be a tribunal competent by its constitution, that is by law of its creation, to pass upon the subject-matter of the suit or proceeding; and, if that involves merely a determination of the personal liability of the defendant, it must be brought within its jurisdiction by service of process within the State, or his voluntary appearance. Due course of law implies the right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty or property in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right determination of the controversy by proof, every material fact which bears on the question of fact or liability be conclusively proved or presumed against him. This is the meaning of due course of law in a comprehensive sense.

It is thus clear that the courts have viewed with askance any process other than strict compliance of law as valid in dispossessing a person in occupation of immovable property against his consent. The reason is obvious that it aims to preserve the efficacy of law and peace and order in the society relegating the jurisprudential perspectives to a suit under Section 5 of the Act and restitute possession to the person dispossessed, irrespective of the fact whether he has any titled to possession or not.

7. The reason is obvious that law attempts to preserve order in the society relegating that the jurisprudential perception stood under Section 6 of the Act irrespective of the possession of the person dispossessed irrespective of the fact whether he has any title to possession or not . In para 29, this Court approved the dictum of the Privy Council in Midnapur Zamindary Co. Ltd. v. Kumar Naresh Narayan Roy and held that persons are not permitted to take forcible possession. They must obtain such possession as they are entitled to by proper course. In our jurisprudence governed by the rule of law even an unauthorised occupant can be ejected only in the manner provided by law. The remedy under Section 6 is of summary trial and its object is to prevent self- help and to discourage people from adopting any means fair or foul to dispossess a person unless dispossession was in due course of law or with consent.

Page 2378

20. Salmond has taken pains to emphasize that in the absence of provisions akin to Section 6 of the Specific Relief Act, 1963, violence, chaos and disorder would become inevitable. These comments are generally made from the viewpoint of the person in possession of the subject immovable property. Section 6 also protects the rightful owner against trespass onto his property, inasmuch as the trespasser in order to be entitled to relief must be able to disclose that he is in settled possession. The duration is incapable of definition and will invariably have to be determined in the facts of each case. For example, if an owner is residing on the land and a trespasser occupies a portion thereof, even after one week the prohibition of Section 6 may come into play against the owner. When the title holder resides at a distance from the land, and he has no reason to visit it for a year or so, such period or duration of trespass would not be indicative of `settled’ possession. Assuming, however, that such person has been informed of the trespass and he declines to take immediate action, the rigour of Section 6 would take effect. Close to a century ago the Privy Council had clarified in Midnapur Zamindary Co. Ltd. v. Kumar Naresh Roy AIR 1924 PC 144 that in India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court . The preeminent factor is the maintenance of public peace and tranquility. The Respondents’ assailed action ignores the law and has the potential of exploding public order.

21. While I do not propose to get drawn into an analysis of the plethora of precedents on the point, I cannot resist from reproducing the terse opinion of the Hon’ble Supreme Court in State of UP v. Maharaja . Before prohibiting the Government from dispossessing the Petitioner the Bench observed that ‘there is no question in the present case of the government thinking of appropriating to itself an extra-judicial right of reentry. Possession can be resumed by government only in a manner known to or recognized by law. It cannot resume possession otherwise than in accordance with law’.

22. Learned Counsel for the Petitioners contend that the Respondents should have filed a Suit for Possession or at least ought to have taken recourse to the procedure in the Public Premises Act. This contention is predicated on the observations of the Apex Court in Express Newspapers. Justice A.P. Sen, who had delivered the leading Judgment quashed the impugned notices threatening re-entry and demolition of construction and raising a demand for conversion charges till the final determination of these demands by a statutory tribunal or by a Civil Court. His Lordship observed that due process of law necessarily implies the filing of a suit by the Lesser for enforcement of the alleged right of recovery. Justice E.S. Venktaramiah (as the Learned Chief Justice then was) voiced the view that the impugned notices suffered from arbitrariness and non-application of mind in that the Central Government had functioned under the Lieutenant Governor of the Union Territory of Delhi. So far as the rights under the Lease Deed were concerned they were left open Page 2379 to be decided in appropriate proceedings i.e. other than under the P.P. Act. His Lordship Justice R.B. Misra (as the Learned Chief Justice then was) while concurring with these opinions also opined that the question of whether there was a breach of the contract of lease or of any statute ‘can be properly decided by taking detailed evidence involving examination and cross-examination of witnesses’. The entire Bench had indicated in unison that matters of such import could not be properly decided in a summary manner. The ratio of Express Newspapers leaves no alternative to the Respondents but to seek the Petitioner’s eviction/ejectment under the ordinary civil law, as is evident from the following paragraphs:

87. The Express Buildings constructed by Express Newspapers Pvt. Ltd., with the sanction of the Lesser i.e. the Union of India, Ministry of Works and Housing on Plots Nos. 9 and 10, Bahadurshah Zafar Marg demised on perpetual lease by registered lease-deed dt. March 17, 1958 can, by no process of reasoning, be regarded as public premises belonging to the Central Government under Section 2(e). That being so, there is no question of the Lesser applying for eviction of the Express Newspapers Pvt. Ltd., under Section 5(1) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 nor has the Estate Officer any authority or jurisdiction to direct their eviction under Sub-section(2) thereof by summary process. Due process of law in a case like the present necessarily implies the filing of suit by the Lesser i.e. the Union of India, Ministry of Works and Housing for the enforcement of the alleged right of re-entry, if any, upon forfeiture of lease due to breach of the terms of the lease.

88. Nothing stated here should be construed to mean that the Government has not the power to take recourse to the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 where admittedly there is unauthorized construction by a lessee or by any other person on Government land which is public premises within the meaning of Section 2(e) and such person is in unauthorized occupation thereof.

23. This decision came up for consideration in Ashoka Marketing Ltd. v. Punjab National Bank . The question in that case was whether the provisions of the Public Premises Act would override the provisions of the Delhi Rent Control Act in relation to the premises falling within the ambit of both the Enactments. There was avowedly a relationship of landlord and tenant between the parties, but the landlord Bank was also entitled to avail of the summary provisions of the Public Premises Act. It was in that context that it was observed as follows:

30. The definition of the expression ‘unauthorised occupation’ contained in Section 2(g) of the Public Premises Act is in two parts. In the first part the said expression has been defined to mean the occupation by any person of the public premises without authority for such occupation. It implies occupation by a person who has entered into occupation of any Page 2380 public premises without lawful authority as well as occupation which was permissive at the inception but has ceased to be so. The second part of the definition is inclusive in nature and it expressly covers continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. This part covers a case where a person had entered into occupation legally under valid authority but who continues in occupation after the authority under which he was put in occupation has expired or has been determined. The words ‘whether by way of grant or any other mode of transfer’ in this part of the definition are wide in amplitude and would cover a lease because lease is a mode of transfer under the Transfer of Property Act. The definition of unauthorised occupation contained in Section 2(g) of the Public Premises Act would, therefore, cover a case where a person has entered into occupation of the public premises legally as a tenant under a lease but whose tenancy has expired or has been determined in accordance with law. …

32. Shri Ganguli has placed reliance on the decision of A.P. Sen, J. in Express Newspapers Pvt. Ltd. v. Union of India and has submitted that in that case the learned Judge has held that cases involving relationship between the Lesser and lessee fall outside the purview of the Public Premises Act. We have carefully perused the said decision and we are unable to agree with Shri Ganguli. In that case A.P. Sen, J. has observed that the new building had been constructed by the Express Newspapers Pvt. Ltd. after the grant of permission by the Lesser, and, therefore, the Express Newspapers Pvt. Ltd. was not in unauthorised occupation of the same within the meaning of Section 2(g) of the Public Premises Act. It was also held by the learned Judge that the Express Building constructed by the Express Newspapers Ltd. with the sanction of Lesser on plots Nos.9 and 10 demised on perpetual lease can, by no process of reasoning, be regarded as public premises belonging to the Central Government under Section 2(e) of the Public Premises Act, and therefore, there was no question of the Lesser applying for eviction of the Express Newspapers Pvt. Ltd. under the provisions of the Public Premises Act. The aforesaid observations indicate that the learned Judge did not proceed on the basis that cases involving relationship of Lesser and lessee fall outside the purview of the Public Premises Act. On the other hand the said observations show that the learned Judge has held that the provisions of the Public Premises Act could not be invoked in the facts of that case.

33. Another submission that has been urged by Shri Ganguli is that the question whether a lease has been determined or not involves complicated questions of law and the estate officer, who is not required Page 2381 to be an officer well versed in law, cannot be expected to decide such questions and, therefore, it must be held that the provisions of the Public Premises Act have no application to a case when the person sought to be evicted had obtained possession of the premises as a lessee. It is true that there is no requirement in the Public Premises Act that the estate officer must be a person well versed in law. But, that, by itself, cannot be a ground for excluding from the ambit of the said Act premises in unauthorised occupation of persons who obtained possession of the said premises under a lease. Section 4 of the Public Premises Act requires issuing of a notice to the person in unauthorised occupation of any public premises requiring him to show cause why an order of eviction should not be made. Section 5 makes provisions for production of evidence in support of the cause shown by the person who has been served with a notice under Section 4 and giving of a personal hearing by the estate officer. Section 8 provides that an Estate Officer, shall, for the purpose of holding any enquiry under the said Act have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, when trying a suit in respect of the matters specified therein namely:

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring discovery and production of documents; and

(c) any other matters which may be prescribed….

64. It would thus appear that, while the Rent Control Act is intended to deal with the general relationship of landlords and tenants in respect of premises other than Government premises, the Public Premises Act is intended to deal with speedy recovery of possession of premises of public nature i.e. property belonging to the Central Government, or Companies in which the Central Government has substantial interest or Corporation owned or controlled by the Central Government and certain corporations, institutions, autonomous bodies and local authorities. The effect of giving overriding effect to the provisions of the Public Premises Act over the Rent Control Act, would be that buildings belonging to Companies, Corporations and autonomous bodies referred to in Section 2(e) of the Public Premises Act would be excluded from the ambit of the Rent Control Act in the same manner as properties belonging to the Central Government. The reason underlying the exclusion of property belonging to the Government from the ambit of the Rent Control Act, is that the government while dealing with the citizens in respect of property belonging to it would not act for its own purpose as a private landlord but would act in public interest. What can be said with regard to Government in relation to property belonging to it can also be said with regard to companies, corporations and other statutory bodies mentioned in Section 2(e) of the Public Premises Act. In our opinion, therefore, keeping in view the object and purpose underlying both the enactments viz., the Rent Control Act and the Public Premises Act, the provisions of the Public Premises Act have to be construed as overriding the provisions Page 2382 contained in the Rent Control Act.

This frequently cited exposition of the Apex Court in Indian Express case does not advance the approach of the Respondents, who have bye-passed both statutes. The bludgeoning of municipal Laws and Regulations with regard to unauthorised constructions as well as commercial use of property in residential areas significantly by Legislators has sought to be saved, albeit by a one year moratorium, by the expeditious enforcement of an enactment. Ordinary citizens such as the Petitioners however have been dealt with in altogether different manner; and their civil rights have been given short shrift. The Respondents would be well advised to remember the opposite of the maxim – `Be you ever so high the law is above you’ – namely that law will give succour to even the lowliest.

24. The Petitioners have not been dispossessed from their shops and the reason for referring to Section 6 of the Specific Relief Act is, in the words of the Division Bench in D.T.T.D.C. v. D.R. Mehara, AIR 1996 Delhi 351, where a person is in settled possession of property, even on the assumption that he has no right to remain in property, he cannot be dispossessed by the owner except by recourse to law’. Mr. Neeraj Kaul, learned Senior counsel for the DMRC has relied on this very case. Obviously the decision of the Division Bench that the licensee ‘cannot be granted the helping hand of the Court for temporary injunction’ was predicated on the factual matrix of that case. Reliance of D.H. Maniar v. Waman Laxman Kudav also cannot further the case of the Respondents for the simple reason that their Lordships had to construe the term `licensee’ in the context of its definition contained in the Bombay Rent Control Act. Thus, the axis of the dispute rotates around the conundrum of whether the Petitioners are in ‘settled possession’ of the property in question.

25. A large volume of case law has come into existence on the manner in which a lessee is to be distinguished from a licensee, and the circumstances in which a license is to be treated as irrevocable. The exposition of the law can conveniently be found in the following passage from Ram Swarup Gupta v. Bhishun Narain Inter College :

9. license as defined by Section 52 of the Act means grant of permission, by a person to the other, a right to do or continue to do, in or upon, the immovable property of the grantor, something which would, in the absence of such right, be unlawful. Such right does not amount to an easement or any interest in the property. The rights so conferred is license. The grant of license may be express or implied which can be inferred from the conduct of the grantor. Section 60 provides that a license may be revoked by the grantor unless : (a) it is coupled with a transfer of property and such transfer is in force; (b) the licensee, acting upon the license, has executed a work of permanent character and incurred expenses in the execution. Revocation of license may be express Page 2383 or implied. Section 62 enumerates circumstances on the existence of which the license is deemed to be revoked. One of such conditions contemplates that where license is granted for a specific purpose and the purpose is attained, or abandoned, or if it becomes impracticable, the license shall be deemed to be revoked. Sections 63 and 64 deal with licensee’s right on revocation of the license to have a reasonable time to leave the property and remove the goods which he may have placed on the property and the licensee is further entitled to compensation if the license was granted for consideration and the license was terminated without any fault of his own. These provisions indicate that a license is revocable at the will of the grantor and the revocation may be expressed or implied. Section 60 enumerates the conditions under which a license is irrevocable. Firstly, the license is irrevocable if it is coupled with transfer of property and such right is enforced and secondly, if the licensee acting upon the license executes work of permanent character and incurs expenses in execution. Section 60 is not exhaustive. There may be a case where the grantor of the license may enter into agreement with the licensee making the license irrevocable, even though, neither of the two clauses as specified under Section 60 are fulfillled. Similarly, even if the two clauses of Section 60 are fulfillled to render the license irrevocable yet it may not be so if the parties agree to the contrary. In Muhammad Ziaul Haque v. Standard Vacuum Oil Co., the Calcutta High Court held that where a license is prima facie irrevocable either because it is coupled with a grant or interest or because the licensee erected the work of permanent nature there is nothing to prevent the parties from agreeing expressly or by necessary implication that license nevertheless shall be revocable. On the same reasoning there is nothing to prevent the parties agreeing expressly or impliedly that the license which may not prima facie fall within either of the two categories of license (as contemplated by Section 60) should nevertheless be irrevocable. The same view was taken by Das, J. (as he then was) in Dominion of India v. Sohan Lal. Bombay High Court has also taken the same view in M.F. De Souza v. Childrens Education Uplift Society. The parties may agree expressly or impliedly that a license which is prima facie revocable not falling within either of the two categories of license as contemplated by Section 60 of the Act shall be irrevocable. Such agreement may be in writing or otherwise and its terms or conditions may be express or implied. A license may be oral also in that case, terms, conditions and the nature of the license, can be gathered from the purpose for which the license is granted coupled with the conduct of the parties and the circumstances which may have led to the grant of the license.

What should not be lost sight of is that eventually the Court held in favor of the occupant retaining possession of the property, as is manifest from this paragraph:

15. In view of the above discussion we are of the opinion that the pleadings, evidence and the circumstances available on record, have fully established that Raja Ram Kumar Bhargava had granted license to the school in respect of the building and the land attached to it for the purpose of imparting education and the school in furtherance of that purpose constructed additional Page 2384 buildings and it further incurred expenses in carrying out modification and extensive repairs in the existing buildings during the period, Raja Ram Kumar Bhargava continued to be the President of the Managing Committee of the school. He never raised any objection to it and there is nothing on record to show that licensor had retained right to revoke the license. If a person allows another to build on his land in furtherance of the purpose for which he had granted license, subject to any agreement to the contrary (sic he) cannot turn round, later on, to revoke the license. This principle is codified in Section 60(b) of the Act. Moreover, conduct of the parties had been such that equity will presume the existence of a condition of the license by plain implication to show that license was perpetual and irrevocable. That being so, Raja Ram Kumar Bhargava could not revoke the license or evict the school and the appellant being transferee from him could not and did not acquire any better right. The appellant therefore has no right to revoke the license or to evict the school, so long the school continues to carry on the purpose for which the license was granted. The trial court and the High Court have therefore rightly dismissed the suit.

26. In Rajbir Kaur v. S. Chokosiri and Co. , the Apex Court has chronicled the major decisions dealing with the vexed question whether a person is a tenant or a mere licensee. This is the passage where the Apex Court deals with how a tenant has to be distinguished from a licensee.

11. In Associated Hotels of India v. R.N. Kapoor this Court referring to the classic distinction between a lease and a license said :

There is a marked distinction between a lease and a license. Section 105 of the Transfer of Property Act defines a lease of immoveable property as a transfer of a right to enjoy such property made for a certain time in consideration for a price paid or promised. Under Section 108 of the said Act, the lessee is entitled to be put in possession of the property. A lease is therefore a transfer of an interest in land. The interest transferred is called the leasehold interest. The Lesser parts with his right to enjoy the property during the term of the lease, and it follows from it that the lessee gets that right to the exclusion of the Lesser. In B.M. Lall v. Dunlop Rubber Co. the distinction between the two concepts was brought out :

A lease is the transfer of a right to enjoy the premises; whereas a license is privilege to do something on the premises which otherwise would be unlawful…. The transaction is a lease, if it grants an interest in the land; it is a license if it gives a personal privilege with no interest in the land…. Page 2385 In Qudrat Ullah v. Municipal Board, Bareilly it was stated:

…If an interest in immovable property, entitling the transferors to enjoyment is created it is a lease; if permission to use land without right to exclusive possession is alone granted a license. …

In Board of Revenue v. A.M. Ansari it was again observed:

…it is the creation of an interest in immovable property or right to possess it that distinguishes a lease from a license. A license does not create an interest in the property to which it relates while a lease does. There is in other words transfer of a right to enjoy the property in case of a lease….

In Dipak Banerjee v. Smt. Lilabuti Chakroborty Sabyasachi Mukherji J. observed:

But in order to prove tenancy or sub-tenancy two ingredients had to be established, firstly the tenant must have exclusive right of possession or interest in the premises or part of the premises in question and secondly that right must in lieu of payment of some compensation or rent. However, in regard to the second requirement of `consideration’ for the transfer of the right to enjoy the property, it was in that case held that though Section 105 of the Transfer of Property Act envisaged even `services’ rendered by the lessee as a consideration for the grant, however, under the Rent Acts, the position would be different. The proposition was noticed thus:

The question is, whether in the context of the provisions of Rent Act, services can be consideration for sub-tenancy. In other words whether in view of the provisions of the Rent Act services can be a good or any consideration for sub- lease is the question.

Answering, it was held:

We are of the opinion that it cannot be.

It is however not possible to accept that services in lieu of the right of occupation would amount to receipt of rent under the Rent Act to create sub- tenancy. This frustrates and defects the purpose of the Rent Act 12. Again, in Khalil Ahmed Bashir Ahmed v. Tufelhussein Samasbhal Sarangpurwala Sabyasachi Mukharji J. observed :

To put precisely if an interest in immovable property entitling the transferee to enjoyment was created, it was a lease; if permission to use land without exclusive possession was alone granted, a license was the legal result. We are of the opinion that this was a license and not a lease as we discover the intent.

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13. The question is, whether in the present case, the evidence on record justifies the inference that the tailor and the Ice-Cream-Vendor were put in exclusive possession. Dr. Chitaley contended that the question would require to be determined upon a proper construction of the deeds entered into between the parties, and that, that alone is decisive of the matter. Indeed, learned Counsel placed strong reliance on the following observations by this Court in M.N. Clubwala v. Fida Hussain Saheb :

Whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive consideration is the intention of the parties. This intention has to be ascertained on a consideration of all the relevant provisions in the agreement. The proposition of Dr. Chitaley as to the conclusiveness of what emanates from the construction of the documents, has, in this case, its own limitations. The import significance and conclusiveness of such documents making, or evidencing, the grants, fall to be examined in two distinct contexts. The dispute may arise between the very parties to the written instrument, where on the construction of the deed one party contends that the transaction is a `license’ and the other that it is a `lease’. The intention to be gathered from the document read as a whole has, quite obviously, a direct bearing. But in cases where, as here, the landlord alleges that the tenant has sublet the premises and where the tenant, in support of his own defense sets-up the plea of a mere licensee and relies upon a deed entered into, inter se, between himself and the alleged licensee, the landlord who is not a party to the deed is not bound by what emanates from the construction of the deed. At best, it is a piece of evidence, the weight to be accorded to which will necessarily depend upon all the other circumstances of the case. The tenant and the sub-tenant, who jointly set up a plea of license against the landlord may choose to camouflage the truth and substance of the transaction behind a facade of a self-serving and conveniently drafted instrument. The transaction might be collusive and a mere mask the parties choose to wear to confuse and confound third parties. In such a case the realities and substance of the transaction and not merely the deed become the basis for the determination of the legal nature of the relationship. The deed is a mere piece of evidence. In deciding whether a grant amounts to a lease or only a license, regard must be had more to the substance than the form of the transaction. It is determined by the law and not by the label the parties choose to put on it. To give exclusive possession, there need not be express words to that effect; it is sufficient if the nature of the acts done by the grantee show that he has and was intended to have the right of exclusive possession. The fact that the agreement contains a clause that no tenancy is to be created will not, of itself, preclude the instrument from creating a lease. In B.M. Lall’s case this Court observed : The question is not of words but of substance and the label which the parties Page 2387 choose to put upon the transaction, though relevant, is not decisive. The test of exclusive possession is not decisive, though it is a very important indication in favor of tenancy.

27. All these views were again reiterated by the Apex Court in Puran Singh Sahni v. Sundari Bhagwandas . Additionally, it was opined that while interpreting the agreement what transpired before and after the agreement was required to be seen. The Court reproduced the following paragraph from Halsbury’s laws of England (4th edn. Vol. 27):

7. The fact that the agreement grants a right of exclusive possession is not in itself conclusive evidence of the existence of a tenancy, but it is a consideration of the first importance, although of lesser significance than the intention of the parties.

In deciding whether a grantee is entitled to exclusive possession regard must be had to the substance of the agreement. In order to give exclusive possession there need not be express words to that effect; it is sufficient if the nature of the acts to be done by the grantee requires that he should have exclusive possession.

However, the grant of an exclusive right to a benefit can be inferred only from language which is clear and explicit. If an exclusive right of possession is subject to certain reservations or to a restriction of the purposes for which the premises may be used, the reservations or restriction will not necessarily prevent the grant operating as a lease.

28. In Chandy Varghese v. K. Abdul Khader , the Hon’ble Court noted the concurrent findings of all the concerned Courts that the owner never intended to transfer any interest in the land and the only arrangement that had come about was a license to run a sawmill in the shed erected on the land. The following paragraph again underscores the need to look at the document in the surrounding factual matrix. This exercise cannot be unilaterally performed by the party concerned; it must be left to the Court.

21. Whether a particular document or transaction creates a ‘lease’ or ‘license’ is not an easy task for the court to decide but the well-established test laid down by the decision of this Court and as has been followed consistently, beginning from the decision of Associated Hotels of India Ltd. v. R.N. Kapoor is that it is not the form but substance of the document which has to be seen to gather the intention of the parties for determining whether the document/transaction is a lease or license. It is further held as under:

The following propositions may, therefore, be taken as well established:

(1) To ascertain whether a document creates a license or lease, the substance of the document must be preferred to the form;

(2) the real test is the intention of the parties whether they intended to Page 2388 create a lease or a license;

(3) if the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a license; and

(4) if under the document a party gets exclusive possession of the property, `prima facie’, he is considered to be a tenant, but circumstances may be established which negative the intention to create a lease.

29. In State of Madhya Pradesh v. Abdul Rahim Khan 1974 MPLJ 776, the Division Bench observed that generally speaking when a licensee acting under the terms of the license erects permanent structures, the license becomes irrevocable, unless the parties contract otherwise. The licensee had filed a suit of declaration and injunction, which was decreed by the civil court, and the Appeals were also dismissed. While doing so the Division Bench also held that the Collector was required to act honestly. This precedent is of no avail to the Respondents. The Full Bench of this Court has held in Chandulal v. MCD 15 (1979) DLT 168, that the Petitioners were mere licensees with liberty to occupy and use the kiosk for a period of eleven months and therefore the possession always remained with the Corporation. On the revocation of the license they ceased to enjoy the liberty to continue to occupy the kiosk. The petitioners before me have been in uninterrupted possession not for months or years, but for several decades. Anil Kumar Khurana v. MCD , has no relevance either to the facts or the contentions raised in these petitions. In Friends Colony Dev. Committee v. State of Orissa , the complaint was also of unauthorised construction; it is not relevant for the present purposes.

30. It is evident that the main distinguishing features between a lease and a license is (a) the nature of possession: if it is exclusive then it is a lease (or an irrevocable license ); (b) if the right to enjoy the property is purely personal then it would be a lease; and (c) if immoveable structures have been constructed by the occupant with the consent or acquiescence of the owner, it would become an irrevocable license (or a lease ); (d) in my opinion if the occupation is for an extraordinarily long period then, even if it commenced as a license, it would become transformed into a lease. The rubicon between an irrevocable license and a lease is for all practical purposes impossible to locate or map. It is also unsustainable to steadfastly hold that a relationship which at its inception may have been in the nature of a license would continue to partake of this legal character even after several decades and even though it has devolved to the heirs of the original licensees. It is my considered view that a difference of approach is called for when one is dealing with a document between private parties and an agreement entered into by a citizen with the Government or State. In the latter case an individual can expect the State to act in a fair manner, keeping his interests, if not paramount, at least on balance with that of the State. This is the raison d’etre for the existence of the State, which is not the end in itself. The siquitor is that the State may sacrifice individual rights or advantages on the alter of public purpose or interest, provided it meticulously pursues the due process of law.

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31. Mr. Kaul has emphasised the observations in State of Punjab v. Ram Lubhaya Bagga that – no right could be absolute in welfare State. A man is a social animal. He cannot live without the cooperation of large number of persons. Every article we uses is the contribution of many. Hence every individual right has to give way to right of a public at large. No Fundamental Right under Part III of the Constitution is absolute and it is to be within permissible reasonable restrictions . This enunciation of the law, however, does not further the case of the Respondents since the Petitioners do not contend that they cannot in any circumstances be dislodged or ejected from the properties possessed by them. Their contention is that they are entitled to the protection of the law just as any other citizen of India. Therefore, their ejectment must be predicated on a decision of the Court of law. The Petitioners have also challenged the manner in which they are sought to be relocated. This very decision lays down that judicial review would not encompass an enquiry into the wisdom of a policy; the Court can, however, consider whether the policy is arbitrary or violative of law.

32. On behalf of Respondents support is sought to be garnered from the observations of the Apex Court in Ramniklal N. Bhutta v. State of Maharashtra – The Court should keep larger public interest in mind while exercising their power of granting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance to interest of justice and not merely on the making out a legal point. In the matter of land acquisition for public purposes, the interest of justice and the public interest coalesce . In that case the State had taken recourse to proceedings under the Land Acquisition Act, 1982 whereas in the present case no such steps have been initiated. This precedent, therefore fortifies the case of the Petitioners.

33. Learned counsel for the Respondents have laid great store on Sodan Singh v. New Delhi Municipal Committee . However, once again the observations made in that case have no application whatsoever to the facts of the present petitions. The Court was concerned with the problem posed by Hawkers in the Metropolis. The Petitioners, however, have been in possession of their shops for decades and it is not possible to equate them with Hawkers who move from place to place and transact their trade on pavements and public streets. Similarly in M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu the finding was that the construction carried out by the Builders was unauthorised. Mr. Kaul has also drawn reference to these words in Mardia Chemicals Limited v. Union of India, – Therefore, wherever public interest to such a large extent is involved Page 2390 and it may become necessary to achieve an object which serves the public purposes, individual rights may have to give way. Public interest has always been considered to be above the private interest. Interest of an individual may, to some extent, be affected but it cannot have the potential of taking over the public interest having an impact on the socio-economic drive of the country. The two aspects are intertwined which are difficult to be separated . Once again it requires reiteration that had the Respondents either taken recourse to civil law and obtained a pronouncement that the Petitioners had ceased to have any rights over their shops, or had initiated proceedings under the Land Acquisition Act, scope of enquiry under Article 226 would have been virtually obliterated.

34. Law has recognised and enabled the extinguishment of property rights of a citizen in favor of broader societal needs inter alia by enacting the Land Acquisition Act, which curiously has not been availed of by the Respondents. I prefer to abjure from recording any final or definitive finding on the relationship between the Petitioners and the Respondents since avowedly this would amount to setting sail into the unchartered and turbulent waters of disputed facts. However, as has already been articulated above, the existence of disputes on the factual matrix does not emasculate the Writ Court even to the extent of not possessing powers to point the parties towards adjudication by the civil courts. It cannot be argued that it is not possible to contend that after uninterrupted possession of over a half century there is still not even a semblance of settled possession. Furthermore, it is arguable that in the facts of the present petitions the Petitioners had exclusive possession since the Respondent’s possession is not visible, thereby giving the relationship the colour of a tenancy or an irrevocable license. The ratio in Sohanlal as well as Indian Express propels me into interdicting the unilateral and self-serving decision of the Respondents that the Petitioners can be summarily removed from the property that they have been in possession of for several decades, and in most cases for successive generations. It is not possible to extrapolate the conclusions in State of Kerala v. A. Lakshmikutty , to the facts of the present petitions.

REASONABLENESS OF THE PROPOSED RELOCATION OF THE PETITIONERS AND EXTENT OF JUDICIAL REVIEW

35. Courts are always reluctant and loathe in interfering with a policy devised by the Government unless it is wholly unreasonable in the Wednesbury sense, and/or the policy violates the equality principles enshrined in Article 14 of the Constitution, or the policy infringes any of the other Fundamental Rights. In Balco Employees’ Union (Regd.) v. Union of India the Apex Court made these observations: In Narmada Bachao Andolan v. Union of India there was a challenge to the validity of the establishment of a large dam. It was held by the majority at p. 762 as follows : (SCC para 229)

Page 2391

It is now well settled that the courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision. Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy-making process and the courts are ill-equipped to adjudicate on a policy decision so undertaken. The court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people’s fundamental rights are not transgressed upon except to the extent permissible under the Constitution.

46. It is evident from the above that is neither within the domain of the courts nor the scope of the judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are our courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical.

47. Process of disinvestment is a policy decision involving complex economic factors. The courts have consistently refrained from interfering with economic decisions as it has been recognised that economic expediencies lack adjudicative disposition and unless the economic decision, based on economic expediencies, is demonstrated to be so violative of constitutional or legal limits on power or so abhorrent to reason, that the courts would decline to interfere. In matters relating to economic issues, the Government has, while taking a decision, right to ‘trial and error’ as long as both trial and error are bona fide and within limits of authority. There is no case made out by the petitioner that the decision to disinvest in BALCO is in any way capricious, arbitrary, illegal or uninformed. Even though the workers may have interest in the manner in which the Company is conducting its business, inasmuch as its policy decision may have an impact on the workers’ rights, nevertheless it is an incidence of service for an employee to accept a decision of the employer which has been honestly taken and which is not contrary to law. Even a government servant, having the protection of not only Articles 14 and 16 of the Constitution but also of Article 311, has no absolute right to remain in service. For example, apart from cases of disciplinary action, the services of government servants can be terminated if posts are abolished. If such employee cannot make a grievance based on Part III of the Constitution or Article 311 then it cannot stand to reason that like the petitioners, non-government employees working in a company which by reason of judicial pronouncement may be regarded as a State for the purpose of Part III of the Constitution can claim a superior or a better right than a government servant and impugn its change of status. In taking of a policy decision in economic matters at length, the principles of natural justice have no role to play. While it is expected of a responsible employer to take all aspects into consideration including welfare of the labour before taking any policy decision that, by itself, will not entitle the employees to demand a right of hearing or consultation prior to the taking of the decision….

92. In a democracy, it is the prerogative of each elected Government to follow its own policy. Often a change in Government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality Page 2392 is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the court.

93. Wisdom and advisability of economic policies are ordinarily not amenable to judicial review unless it can be demonstrated that the policy is contrary to any statutory provision or the Constitution. In other words, it is not for the courts to consider relative merits of different economic policies and consider whether a wiser or better one can be evolved. For testing the correctness of a policy, the appropriate forum is Parliament and not the courts. Here the policy was tested and the motion defeated in the Lok Sabha on 1-3-2001.

36. In similar vein, the Hon’ble Supreme Court has opined in State of Orissa v. Gopinath Dash JT 2005 (10) 484 that – The policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering all the points from different angles. In matter of policy decision or exercise of discretion by the Government so long as the infringement of fundamental right is not shown courts will have no occasion to interfere and the court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Government the court cannot interfere even if a second view is possible from that of the Government.

37. In Tata Cellular v. Union of India (1994) 6 Supreme Court Cases 651, the parameters of Wednesbury unreasonableness have been delineated in these words —

The duty of the court is to confine itself to the question of legality. Its concern should be:

1. Whether a decision/making authority exceeded its powers

2. Committed an error of law.

3. committed a breach of the rules of natural justice,

4. reached a decision which no reasonable tribunal would have reached or,

5. abused its powers.

Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:

(i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must given effect to it.

(ii) Irrationality, namely, Wednesbury unreasonableness.

(iii) Procedural impropriety.

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The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, ‘consider whether something has gone wrong of a nature and degree which requires its intervention’.

38. Therefore, the resettlement policy as well as the scheme devised by the DMRC is not impervious to judicial review.

39. It has been contended by Mr. Kaul that the decision of the DMRC to relocate the Petitioners was within their knowledge. Consultations had been held from time to time. The feasibility of relocating and/or shifting the Petitioners immediately behind their present location had been considered but was ruled out because the Union Ministry of Health had declined to make this strip of land available to the DMRC. Mr. Kaul has also vehemently denied that this strip of land had been acquired for the DMRC. It is also the admitted case that a large tract of land has been placed at the disposal of the DMRC for the relocation of these shops, and confabulation between the concerned parties had been carried out. These parleys could attain fruition because the DMRC did not accede to the demand of the Petitioners that their shops should be located on the ground floor of the proposed building. So far as the Petitioners are concerned their objection is that since their business is the manufacture and sale of furniture, their business would be severely affected if they are not relocated on the ground level. In my opinion it is certainly possible that the State can, with the consent of the affected parties, devise a Relocation Scheme. What has happened in the present case is that the consent of the Petitioners is not forthcoming. Once this position is reached the State would have to fall back on the known and accepted methods of ejecting the Petitioners i.e. through court decree or by resorting to the provisions of the Land Acquisition Act. Assuming that the Petitioners do not have full propriety rights enforceable by law such as that of a lease-holder and keeping in view the failure of the State to adopt known legal recourse for their ejectment, I am reminded of the maxim – In pari delicto potior est conditio possidentis in case of equal or mutual fault the condition of the party in possession is the better one. In holding this opinion I am not transgressing ratio in Netai Bag v. State of West Bengal or the decision of the Division Bench of this Court in NCT of Delhi v. S.P. Khanna, LPA 2388/2005 decided on 25.10.2005. I am fully mindful of the fact that the Government is entitled to make pragmatic adjustments in policy decisions and the Court should not substitute governmental decisions and policies by what it considers to be fairer and wiser or more scientific or logical. In the words of Lord Hailsham in Re (1971) AC 682 – two reasonable persons can perfectly and reasonably come to the opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable .

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40. Governments and Authorities are increasingly disregarding the mandates of the law by riding on the bandwagon of `public interest’. In Sudhir Goel v. M.C.D. , the Petitioners had complained of summary ejectment from shops which had been in their continuous possession for decades and generations. I had granted the Petitioners succour. I find no reason to depart from that understanding of law.

41. As I have already stated above the Petitioners possess legal rights for continued possession of their shops which can be brought to an end only through pursuit of due process of the law. Alternatively, by mutual agreement all the parties may agree to relocation. Since none of these circumstances have come about in the present case, the Petitioners cannot forcibly be ejected. In holding so I am not ruling on the acceptability or legal propriety of the Relocation Scheme. Having said this, however, it is certainly arguable that since the DMRC has been allotted land for the specific purpose of relocation of the Petitioners, its first obligation is towards them and not towards making profits from development of the land with the objective of earning revenues to cover the costs of the Delhi Metro. I do not need to return a finding on the Relocation Scheme and, therefore, refrain from doing so.

For the same reasons there is no necessity to analyze the various provisions of the DMC Act or cognate statutes in order to cogitate upon the powers and duties of the State. The Court would be failing in its duties if it were to succumb to arguments of public necessity or interests in the face of refusal of the State to pursue legal remedies.

42. These writ petitions must be allowed on the short ground that the Respondents have failed to pursue legal avenues for the ejectment or removal of the Petitioners from shops which have been in their possession for several decades. In the circumstances of the case the parties shall bear their respective costs.

43. dusty.