IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.8500-8501 OF 2001
Shanti Sports Club & another ... Appellants
Versus
Union of India & others ... Respondents
With
Contempt Petition Nos. 252-253 of 2001
J U D G M E N T
G.S. Singhvi, J.
1. These appeals filed against order dated 21.8.2001 of the
Division Bench of Delhi High Court whereby it refused to interfere
with the Central Government’s decision not to exercise discretion
under Section 48(1) of the Land Acquisition Act, 1894 (for short
`the Act’) to withdraw from the acquisition of land comprised in
khasra Nos.35, 369/36, 37, 38, 367/21 and 365/33 of Village
Masudpur, Tehsil Mehrauli, Delhi are illustrative of how the
litigants use the courts process for frustrating the acquisition of
land for a public purpose for years together and seek equity after
raising illegal construction over the acquired land under the cloak
of interim order(s) passed by one or the other court.
Background Facts:
2. In the aftermath of partition of the country, lakhs of
people were forced to leave their habitat, properties, trade,
business, etc. in the territory which became Pakistan. Most of them
came and settled in northern parts of the country, particularly
Punjab and Delhi. Out of sheer compulsion, they constructed houses,
etc. without proper layouts and planning. Initially, the Government
did not pay much attention to the haphazard construction of houses
and the growth of unplanned colonies, but with rapid increase in
population of the city on account of influx of thousands of people
from other parts of the country, it was realized that planned
development of the capital city is sine qua non for its healthy
growth. Keeping this in mind, the Central Government created Delhi
Development Authority (DDA) and also set up Town Planning
Organization, which was entrusted with the task of giving advice on
all matters pertaining to planning in the territory of Delhi.
3. The master plan of Delhi was notified in 1962. It envisaged
development of Delhi in different segments, i.e., residential,
commercial, institutional, industrial etc. in a scientific and
modern way. For implementing the concept of planned development in
accordance with the notified master plan, large tracts of land were
acquired vide notifications dated 13.11.1959, 24.10.1961, 4.4.1964,
16.4.1964 and 23.1.1965 issued under Section 4(1) of the Act. Writ
petitions filed by those affected by the first notification were
dismissed by the High Court and their appeals were dismissed by this
Court in the case titled Aflatoon v. Lt. Governor of Delhi (1975) 4
SCC 285, with a categorical finding that the planned development of
Delhi is a public purpose for which large tracts of land could be
acquired.
4. The acquisitions made in furtherance of other notifications
were also challenged by the land holders and other affected persons.
C.W.P. No.963/1980 filed by one Ved Prakash was dismissed by the
High Court. However, the special leave petition was entertained by
this Court and leave was granted.
5. During the pendency of the civil appeal arising out of the
special leave petition filed by Ved Prakash and some writ petitions
which were directly entertained by this Court, a Division Bench of
the High Court made a reference to the Full Bench for considering
the questions whether the acquisition proceeding should be treated
as having been abandoned on account of delay in making the awards
and whether more than one award can be passed in respect of the land
covered by the same notification. The Full Bench dismissed all the
writ petitions and related miscellaneous applications vide judgment
titled Roshanara Begum v. Union of India, AIR 1996 Delhi 206.
Appeals filed against the judgment of Full Bench were dismissed by
this Court – Murari v. Union of India (1997) 1 SCC 15.
6. The land which is subject matter of these appeals was
acquired vide notification dated 23.1.1965. Declaration under
Section 6 was published on 23.12.1968, notices under Sections 9 and
10 were issued in 1976 and the award was made on 22.12.1980.
7. Shri Amrit Lal Khanna, who is said to have purchased 26
bighas of land comprised in khasra Nos.35, 369/36 and 37 in Village
Masudpur, Tehsil Mehrauli, Delhi along with three others, namely,
S/Shri Srivastava, Naresh Kumar and Gopal Kishan from Shri
Parmeshwar Lal vide sale deed dated 31.1.1969 challenged
notification dated 23.1.1965 in W.P. No.1753/1980. He also filed an
application for interim relief. By an order dated 9.12.1980, the
High Court restrained the respondents in the writ petition from
dispossessing the petitioner. The writ petition was finally
dismissed by the Full Bench along with other cases.
8. While the writ petition filed by Shri Amrit Lal Khanna was
pending, Shri Satish Khosla (appellant No.2 in one of the appeals)
got registered a company in the name and style of Shanti India
Private Limited under the Companies Act, 1956 and a society in the
name of Shanti Sports Club under the Societies Registration Act,
1860. Between 1990-1993, Shri Satish Khosla appears to have
entered into some arrangement/agreement with Shri Amrit Lal Khanna
and other land owners and got possession of land bearing khasra
Nos.35, 369/36, 37, 38, 367/21 and 365/33 of Village Masudpur,
Tehsil Mehrauli, Delhi which had already been acquired by the
Central Government. Thereafter, he got constructed complex over the
acquired land in the name of appellant No.1 without even making an
application to the competent authority for sanction of the building
plan. He did so because he knew that if an application for
sanction of the building plan was to be made, the same would be
rejected in view of the prohibition contained in Section 3 of the
Delhi Lands (Restrictions on Transfer) Act, 1972 (for short `the
1972 Act’) against transfer of the acquired land and the concerned
authorities may stall the clandestine construction activities.
9. With a view to protect his possession of the acquired land
and illegal construction raised over it, Shri Satish Khosla filed
W.P. No.4777/1993 in the name of Shanti Sports Club of which he
himself was described as President and Shri Sunil Nagar, Member
Secretary of the Club for issue of a mandamus to the Central
Government to release the land under Section 48(1) of the Act. In
that petition, it was claimed that with the construction of a sports
complex, the purpose of acquisition, i.e., planned development of
the area has already been served.
10. At this stage, it is appropriate to note that before filing
W.P. No.4777/1993, Shri Satish Khosla got filed two suits for
injunction. The first suit bearing No.3318/1991 was filed on
29.10.1991 in the name of Shanti India Private Limited with the
prayer that DDA be restrained from digging the land or constructing
gates on the road leading to Shanti Garden. In that suit, it was
pleaded that the plaintiff is a company registered under the
Companies Act, 1956; that it purchased 38 bighas 13 biswas of land
comprising in khasra Nos.35, 369/36, 37, 38, 367/21 and 365/33
situated in Village Masudpur, Tehsil Mehrauli, Delhi and floated
Shanti Sports Club of India which formed a cricket academy with a
view to provide cricketing facility for its members. It was then
averred that on 28.10.1991, DDA started digging a road, which runs
from Andheria Modh to Airport with a view to raise a wall for
blocking the entire road and rendering the suit property
inaccessible. Along with the suit, the plaintiff filed an
application for temporary injunction. By order dated 4.1.1992, the
Court permitted DDA to raise the wall without obstructing the
plaintiff’s access to the suit property. In the second suit bearing
No.1544/1993 which was filed on 13.7.1993, appellant No.2 herein
joined S/Shri Atma Ram and Amrit Lal Khanna as plaintiffs and prayed
that DDA be restrained from dispossessing them or interfering with
their possession or demolishing or sealing any part of existing
structure. The subject matter of second suit was identical to the
one for which earlier suit had been instituted. In the plaint, all
the plaintiffs were described as owners of the property measuring 38
bighas 13 biswas and it was pleaded that a sports club in the name
of Shanti Sports Club of India was built by plaintiff No.3, Shri
Satish Khosla. It was alleged that officers of the DDA have
demolished certain structures in Village Kishangarh on 29.6.1993 and
threatened to demolish the suit property. In the second suit also
an order of injunction was passed on 15.7.1993.
11. After filing Writ Petition No.4777/1993, Shri Satish Khosla
instituted third suit bearing No.2865/1995 in his own name and that
of Shri Amrit Lal Khanna claiming that they were Bhumidars of khasra
Nos.35, 369/36 and 37 of Village Masudpur, Tehsil Mehrauli, Delhi,
total measuring 26 bighas 6 biswas; that the suit property was
surrounded by a boundary wall with an iron gate; that plaintiff
No.1-Satish Khosla floated the Shanti Sports Club which runs a
cricket academy for its members and that the officers of the DDA
have threatened to demolish the boundary wall and take forcible
possession of an area of about 250 sq. yds. on the pretext that it
formed part of khasra Nos.460, 368 and 36, which was earmarked for
construction of a dispensary. In the third suit, the court passed
an order of temporary injunction on 12.12.1995 restraining DDA from
dispossessing the plaintiffs or demolishing the boundary wall.
12. By filing Writ Petition No.4777/1993, Shri Satish Khosla had
hoped that he will be able to convince the High Court to ignore the
gross irregularities and illegalities committed by him in securing
possession of the acquired land and raising construction over it and
pass an order for protection of the existing structure and also
direct the Central Government to release the land from acquisition
on which sports complex had already been constructed, but his hopes
were belied because the High Court did not entertain the prayer for
interim relief. Undeterred by this unexpected adverse result, Shri
Satish Khosla got filed C.M. No.8269/1993 in Writ Petition
No.1753/1980 with the prayer that the government be directed to
release the land from acquisition because the same has already been
developed. The Full Bench of the High Court considered similar
prayer made on behalf of other land owners, referred to the judgment
of this Court in Gandhi Grah Nirman Sahkari Samiti Ltd. V. State of
Rajasthan (1993) 2 SCC 662 and held:
“…… So, even if some land has been developed by the land
owner according to his own notions and may be the
construction raised by him on the said land is also
serving some public purpose, still that cannot be a
substitute for planned development of Delhi which object
is visualized by the authorities. If the public object
for which the land is sought to be acquired by the
authorities is justified, it cannot be frustrated because
the land owner has developed the land and is utilising the
land for some other public purpose. So, this contention
also does not survive in view of the law held down by the
Supreme Court.”13. The Full Bench separately dealt with Writ Petition
No.1753/1980 and C.M. No.8269/1993 and dismissed the same by
recording the following observations:
“181. Most of the points raised in this writ petition
are common with the main points already discussed by us.
However, Mr. G. L. Sanghi, Senior Advocate, who appeared
for the applicant in C.M. 8269/93 has urged that the land
in question has been developed into a sports complex and
modern amenities have been provided and it would be
national waste in allowing such constructions to be
demolished.182. It is urged that the applicant has acquired this
land in 1969 before coming into force of the Delhi Land
(Restrictions on Transfer) Act, 1972 and thus, there was
no bar in the transferee raising constructions. However,
it is the admitted fact that all these constructions have
been raised after issuance of the notification under
Section 4 of the Act. These constructions have been raised
obviously with complete knowledge of the fact that this
land is liable to be acquired for public purpose. It is
true that transferee of the land such as the applicant is
entitled to same benefits and rights as the transferor
(See Smt. Gunwant Kaur v. Municipal Committee, Bhatinda,
AIR 1970 SC 802). However, unless and until it is shown
that public purpose for which the land was sought to be
acquired by issuing a notification under Section 4 and
declaration under Section 6 has elapsed, it would not be
possible for this Court to hold that mere fact that land
has been developed by the petitioner/applicant should lead
to the conclusion that public purpose for which the land
was sought to be acquired has been achieved. It is pointed
out to us that this particular land is required for the
residential scheme of Vasant Kunj. So, it cannot be said
that the sports complex built up by the applicant in the
land in question is in consonance with the public purpose
for which the land has been earmarked in the scheme of the
Government. Thus, we do not think that the
petitioner/applicant can legally get the notification
quashed on any valid grounds in the present matter.However, the petitioner/ applicant is at liberty to make
any representation to the authorities for getting the land
released and it is for the authorities to examine whether
in view of the modern sports complex having been brought
into existence in the land in question could it serve the
public purpose of acquiring this land for that particular
scheme or the scheme is liable to be modified or amended
in respect of the land in question. However, the
acquisition proceedings are not liable to be quashed on
any such plea.”[Emphasis added]
14. In the appeals preferred against the judgment of the Full
Bench, the land owners reiterated the prayer for issue of direction
to the Government to release their land by asserting that the same
has already been developed by constructing factories, workshops,
godowns, schools, residential houses/quarters, farm houses with
modern facilities and sports complex. This Court opined that the
constructions raised by the appellants would be regarded as
unauthorized because no sanction or permission is shown to have been
obtained from the competent authority. The Court then referred to
an earlier judgment in State of U.P. v. Pista Devi (1986) 4 SCC 251
and rejected the prayer for release of land by making the following
observations:-
“Some of the learned counsel for the appellants also
submitted that even the land shown in green colour in the
master plan which has been sought to be acquired but it is
not understood as to for what purpose the said land is
being acquired. It was also submitted that there are a
large number of structures and complexes raised on the
land sought to be acquired in which schools, sports and
other recreational activities are going on. Shri G.L.Sanghi, learned counsel appearing for the appellants in
Civil Appeal arising out of SLP (C) No. 5771 of 1996 and
Civil Appeal arising out of SLP (C) No. 740 of 1996 as
well as other advocates appearing for some other
appellants submitted that there exist factories,
workshops, godowns and MCD school besides residential
houses and quarters over the land belonging to the
appellant Partap Singh situated at Roshanara Road, Sabzi
Mandi, Delhi which has been acquired and that there exists
modern and well-developed farmhouse with modern facilities
in the land belonging to the appellant Roshanara Begum,
where there are a good number of other structures and
fruit-bearing trees. Consequently these areas do not
require further development as they are already developed
and, therefore, the said land should be released from
acquisition. Mr Sanghi, learned counsel appearing for some
of the appellants urged that the appellant concerned had
developed a sports complex providing modern amenities
therein and if the same is demolished it would be a great
national waste. It was, therefore, urged that such
complexes and built-up areas should be deleted from the
acquisition. It may be pointed out that in the master plan
the land indicated in green colour is reserved for
recreational facilities. The recreational facilities are
also part of the planned development of Delhi and it
cannot be disputed that recreational amenities are also
part of the life of the people and an important feature of
a developed society. Therefore, no legitimate objection
can be made in the acquisition of such land which is shown
in green colour. So far as the structures and
constructions made on the land are concerned there is no
material to show that they were made before the issuance
of notification under Section 4 of the Act. It is also not
clear whether such constructions were raised with or
without necessary sanction/approval of the competent
authority. No grievance therefore can legitimately be
raised in that behalf as the same would be regarded as
unauthorised and made at the risk of the landowners. Here
a reference of a decision of this Court in the case of
State of U.P. v. Pista Devi may be made with advantage,
para 7 of which reads as under: (SCC p. 258, para 7)“It was next contended that in the large extent of land
acquired which was about 412 acres there were some
buildings here and there and so the acquisition of these
parts of the land on which buildings were situated was
unjustified since those portions were not either waste or
arable lands which could be dealt with under Section 17(1)
of the Act. This contention has not been considered by the
High Court. We do not, however, find any substance in it.
The Government was not acquiring any property which was
substantially covered by buildings. It acquired about 412
acres of land on the outskirts of Meerut city which was
described as arable land by the Collector. It may be true
that here and there there were a few super-structures. In
a case of this nature where a large extent of land is
being acquired for planned development of the urban area
it would not be proper to leave the small portions over
which some superstructures have been constructed out of
the development scheme. In such a situation where there is
real urgency it would be difficult to apply Section 5-A of
the Act in the case of few bits of land on which some
structures are standing and to exempt the rest of the
property from its application.”In the present case also a large extent of land measuring
thousands of acres has been acquired and, therefore, it
would not be proper to leave out some small portions here
and there over which some structures are said to be
constructed out of the planned development of Delhi. We
may, however, add here that during the course of the
arguments Shri Goswami, learned counsel appearing for the
respondents-State made a statement that the Government
will consider each of the structures and take a decision
in that respect. We, therefore, leave this issue to the
discretion of the respondent.”[Emphasis added]
15. By taking cue from the observations made by the High Court
in last portion of paragraph 182 of its judgment and the statement
made by the State’s counsel before this Court, which finds mention
in the last part of para 21 of the judgment reported in (1999) 1 SCC
15, a representation was made on behalf of appellant no.1 on
3.10.1997 to various functionaries of the Government and DDA for
release of the land under Section 48(1) of the Act on the ground
that several parcels of the acquired land have already been released
in favour of Hamdard Public School, St. Xavier School, Sahabad State
Extension Welfare Association, Village Pul Pehlad Ten Mehrauli and
Sahabad Daulatpur. Another representation was made on 3.6.1999 for
release of the land covered by the sports complex. These
representations were considered in the meeting held in the office of
the then Minister for Urban Development which was attended among
others by the President of Shanti Sports Club and Vice Chairman of
DDA and a decision is said to have been taken to de-notify the land
in question and for regularization thereof in favour of appellant
No.1. The President of appellant No.1 is said to have been asked to
discuss the matter with the official of the DDA for working out theterms of regularization. On 8.6.1999, the Private Secretary to the
then Urban Development Minister sought a report from the
Commissioner of Planning, Delhi Development Authority in order to
enable the Hon’ble Minister to take appropriate decision. On the
same day, the concerned Minister recorded the following note in the
file:-
“Extensive construction has taken place. This must be
with full cooperation of the public servants concerned.In accordance with the settled policy, no demolition can
or will be ordered. At the last meeting, I indicated that
suitable terms of regularization be settled by
negotiations. I would leave this now to my successor.”16. The issue was then considered by the successor Minister in
the Urban Development Department, who finally decided on 14.7.1999
that the land covered by the sports complex cannot be released
because the development on the land was made after completion of the
acquisition proceedings and making of the award and also because the
land was needed for `Vasant Kunj Residential Project’. This
decision was communicated to the appellants vide letter dated
9.6.2000, which reads as under:-
“No.J-13039/1/95/DDIB, Vol-II
Government of India,
Ministry of Urban Development & Poverty Alleviation,
(Delhi Division)
Nirman Bhawan, New Delhi.Dated 9th June, 2000
To
Shri Satish Khosla,
President,
Shanti Sports Club,
Shanti Sports Complex,
Vasant Kung,
New Delhi-110 070.Sub: De-notification of Shanti Sports Club land comprising 50
bighas 12 biswas in respect of land bearing Khasra No.
367/21(1-10), 32 (8-05), 355/33 (3-07), 35 (5-19), 369/36
(11-14), 37 (8-13), 38 min (7-0) and 354/33 (4-04).Sir,
I am directed to refer to your representation dated
3.6.99 submitted to this Ministry & representation dated 8.6.99
enclosed as Annexure to the Writ Petition on the above
mentioned subject and to say that the matter has been examined
in consultation with DDA. The Development on the land has
taken place after the acquisition of land was completed and
award was declared. The land has been acquired for the Vasant
Kunj Residential Project which has been held up due to
prolonged litigation. Apart from these the Hon’ble High Court
in CWP No. 1753/80 filed by Shri Amrit Lal Khanna and
subsequently the Hon’ble Supreme Court have upheld the
acquisition proceedings in favour of the Government.2. Therefore, it has been decided that your request to
denotify the above land cannot be acceded as the land is
required for public purpose. This is for your information.3. This issues with approval of the competent authority.
Yours faithfully,
Sd/-(R.C. Nayak)
Under Secretary (DDVA)”17. The appellants challenged the aforementioned decision of the
Government in Writ Petition No.3277/2000 mainly on the following
grounds:
1. That on 8th June, 1999, the then Minister for Urban
Development had taken final decision for de-notification of
the land and regularization thereof in favour of appellant
No.1 and his successor could not have overturned that
decision.2. The decision contained in letter dated June 9, 2000 is
totally devoid of reasons inasmuch as while refusing to
release the land in question in favour of appellant No.1, the
Government did not take into account the fact that a huge
sports complex had been built by spending substantial amount
and demolition thereof would be injurious to vast section of
the people which was benefited by the facilities available in
the sports complex.3. That similar representations made for release of land were
entertained and accepted by the Government, but without any
rhyme and reason, the appellants were discriminated and in
this manner, their right to equality guaranteed under Article
14 of the Constitution has been violated.18. In the counter affidavit filed on behalf of the Union of
India, it was averred that the alleged transfer of land in favour of
the petitioners is contrary to the provisions of the 1972 Act and
is, therefore, void; that no decision was taken by the then Minister
on 8.6.1999 for release of land covered by the sports complex and
that the representation was finally rejected on 14.7.1999 because
the land was required for public purpose, namely, the `Vasant Kunj
Residential Project’. On the issue of release of other parcels of
land, it was pleaded that each case is decided on its merits
depending on the use to which the land is to be put and various
other factors and release of some land under Section 48(1) of Act
does not create a right in favour of other land owners to seek a
direction for release of their land.
19. In a separate counter affidavit filed on behalf of DDA,
details of various litigious ventures undertaken by the writ
petitioners, Amrit Lal Khanna and Atma Ram were given and it was
pleaded that the petitioners are not entitled for relief because
they appear to have entered into some transaction with the land
owners in violation of the negative mandate contained in Section 3
of the 1972 Act against transfer of the acquired land and also
because by taking advantage of interim order passed in Writ Petition
No.1753/1980, they raised illegal construction. In para 5 of the
counter affidavit it was averred that the construction was made in
clear violation of the existing master plan. It was further averred
that even in the master plan of 2001, the permitted use of the land
in question is partly residential and partly rural; that residential
portion of the land is to be used for Vasant Kunj Residential Scheme
of DDA, which was held up due to protective orders of injunction
passed by different courts and that in the rural zone, only rural
centre, public and semi public facilities, orchards, plants,
nurseries, wireless and transmission, forest and extractive
industries and LNP are permitted.
20. The Division Bench of the High Court heard Writ Petition
No.4777 of 1993 along with Writ Petition No.3277 of 2000 and
dismissed both the writ petitions after threadbare consideration of
various issues raised by the parties. The Division Bench referred
to the notings recorded in the file in the context of
representations made by the appellants including note dated 8.6.1999
recorded by the then Minister for Urban Development leaving the
matter to his successor and observed:“………..We fail to appreciate the argument advanced on
behalf of the petitioners that the then Minister had taken
a final decision to regularise and denotify the land in
favour of the petitioners. Assuming for the sake of
argument that on June 3, 1999 and June 8, 1999 a decision
to denotify and regularize the land was taken by the then
Minister for Urban Development, it seems to us that such a
decision will be of no consequence and will have no
existence in the eye of law. This is so because the terms
for denotification and regularization were not settled.
Settlement, if any, was left for the future. In the event
of the parties failing to reach a settlement there would
be no occasion to withdraw from acquisition of the land
and to regularize the same in favour of the petitioners.
We also fail to appreciate as to how it can be argued that
though the terms for regularization were still to be
settled, the decision to regularise the land in favour of
the first petitioner was taken by Sh. Ram Jethmalani. The
argument advanced on behalf of the petitioners, therefore,
is fallacious and is hereby rejected. Besides, the
withdrawal from acquisition of any land of which
possession has not been taken is governed by section 48 of
the Act. Undoubtedly, section 48 vests power in the
Government to withdraw from acquisition except in the case
provided for in section 36 thereof. But withdrawal from
acquisition must necessarily be by a notification under
sub-section (1) of section 48 of the Act published in the
official gazette.”21. The Division Bench held that the construction made over the
acquired land has to be treated as unauthorised because the same was
raised in violation of various statutory provisions. The Division
Bench then referred to master plan, 2001 in which land use of the
area in question was shown partly residential and partly rural and
observed that use of the land by the petitioner-club for
recreational purposes is unauthorized. The Division Bench observed
that if the land is regularised in favour of the petitioner-club,
then the land use will have to be first changed from rural to
recreational and for that purpose master plan would require
amendment in accordance with Section 11(A) of the Delhi DevelopmentAct, 1957, which provides for issuance of a notice inviting
objections and suggestions with respect to the proposed modification
and consideration thereof by DDA and Central Government.
22. The Division Bench also considered the argument that as per
the lay out plan of the Vasant Kunj, only 11 bighas 14 biswas was
required for the housing scheme and the petitioners are prepared to
part with that portion of the land and rejected the same by
recording the following observations:-
“……….Respondent no.5 in his counter affidavit dated August
5, 2000 has clearly stated that the land is required for
development schemes of the DDA. It is pointed out that
because of the illegal construction made by the petitions
during the operation of the restraint orders the housing
scheme of the DDA has been held up resulting in loss to
the public. The affidavit also alludes to the fact that
the land for peripheral road in Sector D-7 and land meant
for primary school and dispensary has been encroached upon
by the petitions. According to the affidavit, the
permitted land use in the area is as follows:-(1) Partly residential. (2) Partly for rural use.The affidavit goes on to state that the Technical
Committee of the DDA has mooted a proposal for change of
land use from rural use to ‘residential use’, keeping in
view the need of lakhs of applicants who are on the
waiting list for allotment of flats. The recommendation of
the Technical Committee is stated to have been accepted by
the DDA and a resolution has been passed recommending
change of user of 23.08 hectares of land behind D-6,
Vasant Kunj from rural to residential use. In view of the
categorical stand of the DDA that the land is needed for
housing project, the argument of the petitioners that only
11 bighas and 14 biswas was required for residential use
fails. It has been noticed by the Supreme Court in Murari
vs. Union of India (supra) that there is inflow of more
than one lakh people every year to the city. It is also
noted that Delhi is an ever expanding cosmopolitan,
commercial and industrial city where millions of
multifarious, national and international activities take
place. The Supreme Court also noticed that the city is
confronted with serious housing problems. As a sequitur,
it was found that planned development of Delhi is a
continuous and unending process. Therefore, we cannot find
fault with the decision of the Government declining to
release the land from acquisition.”23. In the concluding part of its order, the Division Bench took
cognizance of written statement filed by Satish Khosla, President of
Club in Suit No.3064/1996 titled as M/s Eli Lilly Ranbaxy Limited
and others v. Satish Khosla wherein, the plaintiff had sought a
decree of permanent injunction, restraining the defendant from
letting out garden for functions and parties during the currency of
lease agreement entered by and between M/s Eli Lilly Ranbaxy Limited
and Shri Satish Khosla in respect of cottage No.6. The Division
Bench noted that in paragraphs 4, 6 and 11 of the written statement,
the defendant had unequivocally given out that the premises are
being used not only for sporting activities but for wedding parties,
birthday parties and other festive occasions and cottages
constructed in the premises were being given to the affluent parties
like the plaintiff, several diplomats including Deputy High
Commissioner of Pakistan, Ambassador of Kazakastan, that huge rent
and other charges were being collected by the defendant from the
plaintiff which ran into lacs of rupees and opined that the claim of
the petitioner that the complex was being used for recreation of the
members only was fallacious.
24. On the issue of discrimination, the Division Bench held that
even if some other lands have been de-notified under Section 48(1),
the same would be contrary to the purpose of acquisition and one
wrong cannot justify another wrong.
25. Shri Mukul Rohtagi, learned senior counsel appearing for the
appellants argued with his usual vehemence that the decision taken
by the then Minister for Urban Development on 8.6.1999 for
regularization of the construction made on the land in question was
final and his successor was not justified in reviewing/reversing the
same. He submitted that the Government is bound to respect the
decision taken by the then Minister in favour of the appellant and
mere change of portfolio or absence of formal notification under
Section 48(1) of the Act cannot denude the earlier decision of its
sanctity. Shri Rohtagi emphasized that if the decision taken by one
Minister is overruled or overturned by his successor, the
credibility of the Government will become questionable. Learned
senior counsel further argued that even if the note recorded in the
file by the then Minister for Urban Development on 8.6.1999 is not
treated as a decision taken by the Government under Section 48(1) of
the Act, rejection of the appellants representations is liable to be
quashed on the ground of arbitrariness and non-application of mind.
Shri Rohtagi made a pointed reference to the observations contained
in para 182 of the judgment of the Full Bench in Roshanara Begum v.
Union of India (supra) and the statement made by the counsel
appearing on behalf of the State before this Court in Murari v.
Union of India (supra) that the Government will consider each of the
structure and take a decision in that respect and argued that theappellants prayer for withdrawal from acquisition could not have
been rejected on the specious grounds that development has been
carried out after acquisition of the land or that the same is
required for Vasant Kunj Residential Project, more so, when power
under that section had already been exercised in favour of Hamdard
Public School, St. Xavier School, Shahbad Estate Extension Welfare
Association, Scindia Potteries and others. Learned counsel pointed
out that the sports complex constructed at the site has a cricket
ground, tennis stadium, badminton courts, swimming pool, table
tennis room, squash court where the people can play different games
and sports under the watchful eyes of expert coaches. He submitted
that the facilities available at the sports complex are of
international standard, which can be used for various purposes
including the impending Commonwealth Games and nobody is going to be
benefited by demolition of the complex. Shri Rohtagi also referred
to the guidelines issued by the Government of India, Ministry of
Urban Affairs & Employment, Department of Urban Development vide
letter No.K-13011/17/96-DDIB dated 5.3.1989 and submitted that on
the one hand the Government is encouraging public private
cooperation in development of the land for activities like
construction of schools, shopping complexes, community centers,
ration shops, hospitals and dispensaries, the sports complex
constructed by the appellants by spending crores of rupees is sought
to be demolished after a gap of more than 25 years. Learned counsel
submitted that there is no sports club in Vasant Kunj and the
appellants are willing to pay market price or offer half of the land
for accomplishment of the residential project for which the land issought to be acquired.
26. Ms. Indira Jaising, learned Additional Solicitor General and
Shri A. Sharan, learned senior advocate, appearing for the DDA
emphatically submitted that this Court should not grant any
indulgence to the appellants because they constructed the so called
sports complex knowing fully well that the land in question had
already been acquired. Ms. Jaising submitted that the appellants
had no business to raise construction on the acquired land because
they do not have any title over it. She referred to Section 3 of
the 1972 Act and argued that in the face of unequivocal prohibition
against transfer of the acquired land, the appellants could not have
constructed the building and that too without obtaining sanction or
permission from any competent authority.
27. In the light of the submissions made by the learned counsel
for the parties, we shall now consider whether note dated 8.6.1999
recorded by the then Minister for Urban Development can be treated
as a decision of the Government to withdraw from the acquisition of
land in question in terms of Section 48(1) of the Act, which lays
down that except in the case provided for in Section 36, the
Government shall be at liberty to withdraw from the acquisition of
any land of which possession has not been taken. Although, the
plain language of Section 48(1) does not give any indication of the
manner or mode in which the power/discretion to withdraw from the
acquisition of any land is required to be exercised, having regard
to the scheme of Parts II and VII of the 1894 Act, which postulatespublication of notification under Section 4(1), declaration under
Section 6 and agreement under Section 42 in the official gazette as
a condition for valid acquisition of the land for any public purpose
or for a company, it is reasonable to take the view that withdrawal
from the acquisition, which may adversely affect the public purpose
for which, or the company on whose behalf the acquisition is
proposed, can be done only by issuing a notification in the official
gazette. The decision to acquire the land for a public purpose is
preceded by consideration of the matter at various levels of the
Government. The revenue authorities conduct survey for determining
the location and status of the land and feasibility of its
acquisition for a public purpose. The final decision taken by the
competent authority is then published in the official gazette in the
form of a notification issued under Section 4(1) of the Act.
Likewise, declaration made under Section 6 of the Act is published
in the official gazette. The publication of notifications under
Section 4(1) has two-fold objectives. In the first place, it
enables the land owner(s) to lodge objections against the proposed
acquisition. Secondly, it forewarns the owners and other interested
persons not to change the character of the land and, at the same
time, make them aware that if they enter into any transaction with
respect to the land proposed to be acquired, they will do so at
their own peril. When the land is acquired on behalf of a company,
consent of the appropriate government is a must. The company is
also required to execute an agreement in terms of Section 41 of the
Act which is then published in the official gazette in terms of
Section 42 thereof. As a necessary concomitant, it must be heldthat the exercise of power by the government under Section 48(1) of
the Act must be made known to the public at large so that those
interested in accomplishment of the public purpose for which the
land is acquired or the concerned company may question such
withdrawal by making representation to the higher authorities or by
seeking courts intervention. If the decision of the Government to
withdraw from the acquisition of land is kept secret and is not
published in the official gazette, there is every likelihood that
unscrupulous land owners, their agents and wheeler-dealers may pull
strings in the power corridors and clandestinely get the land
released from acquisition and thereby defeat the public purpose for
which the land is acquired. Similarly, the company on whose behalf
the land is acquired may suffer incalculable harm by unpublished
decision of the Government to withdraw from the acquisition.
28. The requirement of issuing a notification for exercise of
power under Section 48(1) of the Act to withdraw from the
acquisition of the land can also be inferred from the judgments of
this Court in Municipal Committee, Bhatinda v. Land Acquisition
Collector and others (1993) 3 SCC 24 (para 8), U.P. State Sugar
Corporation Ltd. v. State of U.P. and others (1995) Supp 3 SCC 538
(para 3), State of Maharashtra and another v. Umashankar Rajabhau
and others (1996) 1 SCC 299 (para 3) and State of T.N. and others v.
L. Krishnan and others (1996) 7 SCC 450 (para 7). In Larsen &
Toubro Ltd. v. State of Gujarat and others (1998) 4 SCC 387, the
Court considered the question whether the power under Section 48(1)
of the Act can be exercised by the Government without notifying thefactum of withdrawal to the beneficiary of the acquisition. It was
argued that in contrast to Sections 4 and 6, Section 48(1) of the
Act does not contemplate issue of any notification and withdrawal
from the acquisition can be done by an order simpliciter. It was
further argued that power under Section 21 of the General Clauses
Act can be exercised for withdrawing notifications issued under
Sections 4 and 6. While rejecting the argument, the Court
observed:
“….. When Sections 4 and 6 notifications are issued, much
has been done towards the acquisition process and that
process cannot be reversed merely by rescinding those
notifications. Rather it is Section 48 under which, after
withdrawal from acquisition is made, compensation due for
any damage suffered by the owner during the course of
acquisition proceedings is determined and given to him. It
is, therefore, implicit that withdrawal from acquisition
has to be notified.31. Principles of law are, therefore, well settled. A
notification in the Official Gazette is required to be
issued if the State Government decides to withdraw from
the acquisition under Section 48 of the Act of any land of
which possession has not been taken. An owner need not be
given any notice of the intention of the State Government
to withdraw from the acquisition and the State Government
is at liberty to do so. Rights of the owner are well
protected by sub-section (2) of Section 48 of the Act and
if he suffered any damage in consequence of the
acquisition proceedings, he is to be compensated and sub-section (3) of Section 48 provides as to how such
compensation is to be determined. There is, therefore, no
difficulty when it is the owner whose land is withdrawn
from acquisition is concerned. However, in the case of a
company, opportunity has to be given to it to show cause
against any order which the State Government proposes to
make withdrawing from the acquisition. Reasons for this
are not far to seek. After notification under Section 4 is
issued, when it appears to the State Government that the
land in any locality is needed for a company, any person
interested in such land which has been notified can file
objections under Section 5-A(1) of the Act. Such
objections are to be made to the Collector in writing and
who after giving the objector an opportunity of being
heard and after hearing of such objections and after
making such further enquiry, if any, as the Collector
thinks necessary, is to make a report to the State
Government for its decision. Then the decision of the
State Government on the objections is final. Before the
applicability of other provisions in the process of
acquisition, in the case of a company, previous consent of
the State Government is required under Section 39 of the
Act nor (sic) unless the company shall have executed the
agreement as provided in Section 41 of the Act. Before
giving such consent, Section 40 contemplates a previous
enquiry. Then compliance with Rules 3 and 4 of the Land
Acquisition (Company) Rules, 1963 is mandatorily required.
After the stage of Sections 40 and 41 is reached, the
agreement so entered into by the company with the State
Government is to be published in the Official Gazette.
This is Section 42 of the Act which provides that the
agreement on its publication would have the same effect as
if it had formed part of the Act. After having done all
this, the State Government cannot unilaterally and without
notice to the company withdraw from acquisition.
Opportunity has to be given to the company to show cause
against the proposed action of the State Government to
withdraw from acquisition. A declaration under Section 6
of the Act is made by notification only after formalities
under Part VII of the Act which contains Sections 39 to 42
have been complied and the report of the Collector under
Section 5-A(2) of the Act is before the State Government
who consents to acquire the land on its satisfaction that
it is needed for the company. A valuable right, thus,
accrues to the company to oppose the proposed decision of
the State Government withdrawing from acquisition. The
State Government may have sound reasons to withdraw from
acquisition but those must be made known to the company
which may have equally sound reasons or perhaps more,
which might persuade the State Government to reverse its
decision withdrawing from acquisition. In this view of the
matter it has to be held that Yadi (memo) dated 11-4-1991
and Yadi (memo) dated 3-5-1991 were issued without notice
to the appellant (L&T Ltd.) and are, thus, not legal.”(emphasis added)
29. The issue deserves to be considered from another angle. All
executive actions of the Government of India and the Government of a
State are required to be taken in the name of the President or the
Governor of the concerned State, as the case may be [Articles 77(1)
and 166(1)]. Orders and other instruments made and executed in the
name of the President or the Governor of a State, as the case maybe, are required to be authenticated in such manner as may be
specified in rules to be made by the President or the Governor, as
the case may be [Articles 77(2) and 166(2)]. Article 77(3) lays
down that the President shall make rules for more convenient
transaction of the business of the Government of India, and for the
allocation among Ministers of the said business. Likewise, Article
166(3) lays down that the Governor shall make rules for the more
convenient transaction of the business of the Government of the
State, and for the allocation among Ministers of the said business
insofar as it is not business with respect to which the Governor is
by or under this Constitution required to act in his discretion.
This means that unless an order is expressed in the name of the
President or the Governor and is authenticated in the manner
prescribed by the rules, the same cannot be treated as an order on
behalf of the Government. A noting recorded in the file is merely a
noting simpliciter and nothing more. It merely represents
expression of opinion by the particular individual. By no stretch
of imagination, such noting can be treated as a decision of the
Government. Even if the competent authority records its opinion in
the file on the merits of the matter under consideration, the same
cannot be termed as a decision of the Government unless it is
sanctified and acted upon by issuing an order in accordance with
Article 77(1) and (2) or Article 166(1) and (2). The noting in the
file or even a decision gets culminated into an order affecting
right of the parties only when it is expressed in the name of the
President or the Governor, as the case may be, and authenticated in
the manner provided in Article 77(2) or Article 166(2). A noting oreven a decision recorded in the file can always be
reviewed/reversed/overruled or overturned and the court cannot take
cognizance of the earlier noting or decision for exercise of the
power of judicial review.
30. In State of Punjab v. Sodhi Sukhdev Singh AIR 1961 SC 493,
this Court considered the question whether a provisional decision
taken by the Council of Ministers to reinstate an employee could be
made basis for filing an action for issue of a mandamus for
reinstatement and held:
“………. We are unable to understand this argument. Even if
the Council of Ministers had provisionally decided to
reinstate the respondent that would not prevent the
Council from reconsidering the matter and coming to a
contrary conclusion later on, until a final decision is
reached by them and is communicated to the Rajpramukh in
the form of advice and acted upon by him by issuing an
order in that behalf to the respondent.”31. A somewhat similar question was considered by the
Constitution Bench in Bachhittar Singh v. The State of Punjab (1962)
Supp. 3 SCR 713, in the backdrop of the argument that once the
Revenue Minister of PEPSU had recorded a note in the file that the
punishment imposed on the respondent be reduced from dismissal to
that of reversion, the same could not be changed/reviewed/overruled
by the Chief Minister. This Court proceeded on the assumption that
the note recorded by the Revenue Minister of PEPSU in the file was
an order, referred to the provisions of Article 166 of theConstitution and held:
“Merely writing something on the file does not amount to
an order. Before something amounts to an order of the
State Government two things are necessary. The order has
to be expressed in the name of the Governor as required by
clause (1) of Art.166 and then it has to be communicated.
As already indicated, no formal order modifying the
decision of the Revenue Secretary was ever made. Until
such an order is drawn up the State Government cannot, in
our opinion, be regarded as bound by what was stated in
the file. As along as the matter rested with him the
Revenue Minister could well score out his remarks or
minutes on the file and write fresh ones.The business of State is a complicated one and has
necessarily to be conducted through the agency of a large
number of officials and authorities. The constitution,
therefore, requires and so did the Rules of Business
framed by the Rajpramukh of PEPSU provide, that the action
must be taken by the authority concerned in the name of
the Rajpramukh. It is not till this formality is observed
that the action can be regarded as that of the State or
here, by the Rajpramukh. We may further observe that,
constitutionally speaking, the Minister is no more than an
adviser and that the head of the State, the Governor or
Rajpramukh (Till the abolition of that office by the
Amendment of the Constitution in 1956), is to act with the
aid and advice of his Council of Ministers. Therefore,
until such advice is accepted by the Governor whatever the
Minister or the Council of Ministers may say in regard to
a particular matter does not become the action of the
State until the advice of the Council of Ministers is
accepted or deemed to be accepted by the Head of the
State. Indeed, it is possible that after expressing one
opinion about a particular matter at a particular stage a
Minister or the Council of Ministers may express quite a
different opinion, one which may be completely opposed to
the earlier opinion. Which of them can be regarded as the
‘order’ of the State Government ? Therefore to make the
opinion amount to a decision of the Government it must be
communicated to the person concerned. In this connection
we may quote the following from the judgment of this Court
in the State of Punjab v. Sodhi Sukhdev Singh.“Mr. Gopal Singh attempted to argue that before the
final order was passed the Council of Ministers had
decided to accept the respondent’s representation and
to reinstate him, and that, according to him, the
respondent seeks to prove by calling the two original
orders. We are unable to understand this argument.
Even if the Council of Ministers had provisionally
decided to reinstate the respondent that would not
prevent the Council from reconsidering the matter and
coming to a contrary conclusion later on, until a
final decision is reached by them and is communicated
to the Rajpramukh in the form of advice and acted
upon by him by issuing an order in that behalf to the
respondent.”Thus it is of the essence that the order has to be
communicated to the person who would be affected by that
order before the State and that person can be bound by
that order. For, until the order is communicated to the
person affected by it, it would be open to the Council of
Ministers to consider the matter over and over again and,
therefore, till its communication the order cannot be
regarded as anything more than provisional in character.We are, therefore, of the opinion that the remarks or the
order of the Revenue Minister, PEPSU are of no avail to
the appellant.”[emphasis added]
32. In State of Bihar and others v. Kripalu Shankar and others
(1987) 3 SCC 34, a two-Judge Bench while considering the question
whether notings recorded in the file would constitute civil or
criminal contempt within the meaning of Section 2(b) and (c) of the
Contempt of Courts Act observed as under:-
“14. Now, the functioning of Government in a State is
governed by Article 166 of the Constitution, which lays
down that there shall be a council of ministers with the
Chief Minister at the head, to aid and advise the Governor
in the exercise of his functions except where he is
required to exercise his functions under the Constitution,
in his discretion. Article 166 provides for the conduct of
Government business. It is useful to quote this article:166 (1) All executive action of the government of a
State shall be expressed to be taken in the name of
the Governor.
(2) Orders and other instruments made and executed in
the name of the Governor shall be authenticated in
such manner as may be specified in rules to be made
by the Governor, and the validity of an order or
instrument which is so authenticated shall not be
called in question on the ground that it is not an
order or instrument made or executed by the Governor.
(3) The Governor shall make rules for the more
convenient transaction of the business of the
government of the State, and for the allocation among
Ministers of the said business insofar as it is not
business with respect to which the Governor is by or
under this Constitution required to act in his
discretion.
15. Article 166(1) requires that all executive action of
the State Government shall be expressed to be taken in the
name of the Governor. This clause relates to cases where
the executive action has to be expressed in the shape of a
formal order or notification. It prescribes the mode in
which an executive action has to be expressed. Noting by
an official in the departmental file will not, therefore,
come within this article nor even noting by a Minister.
Every executive decision need not be as laid down under
Article 166(1) but when it takes the form of an order it
has to comply with Article 166(1). Article 166(2) states
that orders and other instruments made and executed under
Article 166(1), shall be authenticated in the manner
prescribed. While clause (1) relates to the mode of
expression, clause (2) lays down the manner in which the
order is to be authenticated and clause (3) relates to the
making of the rules by the Governor for the more
convenient transaction of the business of the Government.
A study of this article, therefore, makes it clear that
the notings in a file get culminated into an order
affecting right of parties only when it reaches the head
of the department and is expressed in the name of the
Governor, authenticated in the manner provided in Article
166(2).”
33. In Rajasthan Housing Board v. Shri Kishan (1993) 2 SCC 84,
this Court made a detailed reference to the records and affidavit
filed on behalf of the Rajasthan Housing Board and held:
“From the above material, it is clear that there was no
final decision at any time to de-notify the said lands. A
tentative decision was no doubt taken in February 1990 but
before it could be implemented the Government thought it
necessary to ascertain in views of the Housing Board and
to find out as to what the Board had done upon the land,
what structures it had raised and what amount it had spent
so that the Board could be compensated while delivering
the possession back to the Housing Society. Before this
could be done there was a change in the Government and the
said tentative decision was reversed. In this view of the
matter, it is not necessary for us to go into the question
whether there was a communication of the `decision’ of the
Government to the petitioner. The communication must be of
a final decision and not of a provisional or tentative
decision.”
34. The issue was recently considered in Sethi Auto Service
Station and another v. Delhi Development Authority and others (2009)
1 SCC 180. In that case, the appellant had claimed relocation of
two petrol pumps which had become non-profitable on account of
construction of 8 lane express highway between Delhi and Gurgaon.
The appellants relied on the notings recorded by the technical
committee headed by the Vice Chairman, DDA. It was urged that the
technical committee had recommended relocation of the petrol pumps,
it was not open to DDA to do a volte face and reject the
representation of the appellants. On behalf of the respondents, it
was urged that mere notings and proposal recorded in the files of
DDA did not create any right in favour of the appellants and the
final decision taken by DDA against relocation of petrol pumps was
consistent with the policy in vogue. This Court approved the High
Court’s refusal to interfere with DDA’s decision and observed:
“It is trite to state that notings in a departmental file
do not have the sanction of law to be an effective order.
A noting by an officer is an expression of his viewpoint
on the subject. It is no more than an opinion by an
officer for internal use and consideration of the other
officials of the department and for the benefit of the
final decision-making authority. Needless to add that
internal notings are not meant for outside exposure.
Notings in the file culminate into an executable order,
affecting the rights of the parties, only when it reaches
the final decision-making authority in the department,
gets his approval and the final order is communicated to
the person concerned.”
35. In C.W.P. No.325/1982 – Ram Phal v. Union of India, which
was decided by the Full Bench of the High Court along with other
cases, vide Roshanara Begum v. Union of India, an application was
moved by the petitioners with the prayer that the acquisition
proceedings may be quashed because the Central Government has issued
an order under Section 48(1) of the Act for withdrawal of the
acquisition proceedings in respect of the land which was subject
matter of the writ petition. On behalf of the Central Government, it
was urged that no order has been made by the Central Government for
withdrawing from acquisition of the land in question and
communication regarding withdrawal was sent due to misreading of
orders made in the file. Counsel representing the Union of India
went to the extent of arguing that if the court was to infer that
any such order has been made by the Central Government, then the
same be treated as non est and declared as illegal and void because
the land was being acquired for planned development of Delhi. It
was argued that before an order under Section 48 could come into
play, the same is required to be published in the official gazette
in the same manner in which notification under Section 4 and
declaration under Section 6, are published. The Full Bench adverted
to Section 48(1) of the Act and observed:
“Section 48 of the Act lays down that Government shall be
at liberty to withdraw from the acquisition of any land of
which possession has not been taken. The original record
in which the Minister concerned had made the order was
produced before us which we have perused and as a matter
of fact, the learned counsel for the petitioner has placed
on record the photocopies of the notings on which the
order of the Minister has been accorded. It is evident
that if this Court is to come to the conclusion on reading
the said record that in fact no order has been made by the
Minister concerned which amounts to withdrawing from
acquisition, mere communication of the misconstrued order
by the officials would not have the effect of an order of
the Government withdrawing from the acquisition.”
36. The Full Bench then examined the notings in the file,
referred to Section 21 of the General Clauses Act, 1897 and
concluded:
“157. Section 48 by itself does not require publication of
such an order in the Official Gazette. As a matter of
fact, there is no repugnancy between the provisions of
Section 48 of the Act as read with Section 21 of the
General Clauses Act. The purpose of issuance of
publication of notifications and declarations under
Sections 4 and 6 of the Act in Official Gazette are that
public at large should become aware of the factum that the
land so notified is to be acquired for public purpose so
that people at large should not suffer any monetary loss
or any other inconveniences in entering into any deals in
respect of such land, subject-matter of compulsory
acquisition. As an analogy of the purpose enshrined in
notification issued under Section 4 and declaration issued
under Section 6 for their publication in Official Gazette
is also, in our view, linked to the order which is made
under Section 48 of the Act for withdrawing from such
acquisition and unless the same is also published in the
manner as the original notifications, the said object
could not be achieved i.e. of giving public notice to the
public at large.”
37. As a result of the above discussion, we hold that the noting
recorded in the official files by the officers of the Government at
different levels and even the Ministers do not become decision of
the Government unless the same is sanctified and acted upon by
issuing an order in the name of the President or Governor, as the
case may, authenticated in the manner provided in Articles 77(2) and
166(2) and is communicated to the affected persons. The notings
and/or decisions recorded in the file do not confer any right or
adversely affect the right of any person and the same can neither be
challenged in a court nor made basis for seeking relief. Even if
the competent authority records noting in the file, which indicates
that some decision has been taken by the concerned authority, the
same can always be reviewed by the same authority or reversed or
over-turned or overruled by higher functionary/authority in the
Government.
38. Reverting to the case in hand, we find that representation
made on behalf of appellant No.1 was examined by different
functionaries of the Government and DDA. On 8.6.1999, the then
Minister for Urban Development recorded a note in the file that
extensive construction has taken place and this must have been
possible with the cooperation of the concerned officers and opined
that no demolition can or will be ordered as per the policy. He
then recorded that suitable terms for regularization be settled by
negotiations and left the matter there for consideration by his
successor. That noting was never translated into an order nor the
same was published in the official gazette in the form of a
notification. It was not even communicated to the appellants or
DDA. The reason for this is not far to seek. The Minister had
himself left the matter for consideration and decision by his
successor. The latter finally decided on 14.7.1999 that the
appellants request for de-notification of the land cannot be
accepted because the development was carried out after its
acquisition and also because the land is required for a public
purpose, i.e, Vasant Kunj Residential Project, which was held up due
to prolonged litigation. This being the position, the appellants
cannot rely upon the note recorded by the then Minister on 8.6.1999
for pleading before the Court that the Government had taken decision
to withdraw from the acquisition of land in question in terms of
Section 48(1) of the Act.
39. Before leaving this part of the discussion, we consider it
necessary to observe that there have been several cases of exercise
of power under Section 48(1) of the Act for extraneous
considerations defeating the very purpose of acquisition. Two such
instances have been considered by this Court in Chandra Bansi Singh
v. State of Bihar (1984) 4 SCC 316 and Rajasthan Housing Board v.
Sri Kishan (supra). The facts of Chandra Bansi Singh’s case were
that on 19.8.1974, the Government of Bihar issued notification under
Section 4 for acquisition of 1034.94 acres of land in village Digha
for the purpose of construction of houses by the Bihar State Housing
Board. After consideration of objections, declaration under Section
6 was issued and published on 20.2.1976. On 8.11.1976, a
representation was made by one Mr. Ram Avtar Shastri, Member of
Parliament for withdrawing the acquisition proceedings. The same
was rejected in December, 1976. However, before compensation could
be disbursed to the land owners, general elections were announced
and, therefore, the matter was deferred and put in cold storage. On
24.5.1980, 4.03 acres land belonging to Pandey families was released
from acquisition. In the same year, a writ petition was filed in
the High Court challenging release of land in favour of Pandey
families but the same was withdrawn. In May 1981, another writ
petition was filed on the same subject and it was pleaded that
release of land in favour of Pandey families is violative of Article
14 of the Constitution. The State Government supported the release
of land in favour of Pandey families by asserting that they had put
up buildings with boundary walls in the entire area covered by 4.03
acres and that it would have been difficult for government to
demolish the construction. This was controverted by the petitioner,
who produced several photographs to show that no huge buildings or
houses were constructed and only small hutment had been put up on
the land. After considering the entire record, this Court ruled
that release of land in favour of Pandey families was pure and
simple act of favouritism without there being any legal or
constitutional justification for the same and declared the action of
the State Government to be violative of Article 14 of the
Constitution. The Court also declared that the entire acquisition
will be deemed to be valid and the land released to Pandey families
would form part of the acquisition initiated vide notification dated
19.8.1974.
40. The facts of Sri Kishan’s case were that 2570 bighas of land
(approximately equal to 1580 crores) was acquired for the benefit of
the Rajasthan Housing Board by publication of notification under
Section 4(1) read with Section 17(4) of the Act. The learned Single
Judge of the High Court dismissed the writ petitions involving
challenge to the acquisition proceedings. On appeals filed by the
land owners, Judges constituting the Division Bench expressed
divergent opinions. Thereupon, the matter was referred to the
larger Bench. By a majority judgment, the larger Bench quashed the
notification issued under Section 17(4) and declaration issued under
Section 6. During the pendency of appeals before this Court, a writ
petition was filed by New Pink City Grah Nirman Sahkari Sangh.
Therein it was pleaded that by virtue of the decision of the
Minister-in-charge, Urban Development Department and the Chief
Minister, the State Government must be deemed to have withdrawn from
the acquisition within the meaning of Section 48(1) of the Act.
This Court noted that the society, which claims to have purchased
525 bighas of land from khatedars, represented the Government to de-
notify the land. The then Minister-in-charge, Urban Development
Department recorded a decision in the file on July 20, 1984 that the
lands be released, but his decision was overruled by the Chief
Minister. After about five years, the society again represented for
de-notification of the land. The Minister for Urban Development
made recommendation in favour of the society. This time, the Chief
Minister agreed with the Minister by observing that the land of the
society was regularised according to the decision of the Cabinet.
Thereafter, Deputy Secretary, Urban Development and Housing
Department wrote a letter to the Secretary of the Housing Board that
the Government has decided to release the land of the society. A
copy of the letter was marked to the society. During the pendency
of writ petition before this Court, an additional affidavit of the
Secretary, Rajasthan Housing Board was filed with a categorical
assertion that at no point of time any notification was issued
withdrawing from the acquisition and the Beri Commission, which was
constituted to look into the illegalities and irregularities
committed by functionaries and officials of the previous Government,
recorded a categorical finding that the decision to de-acquire the
land of the petitioner – society was in contravention of the earlier
decision of the Cabinet and was also contrary to law and against
public interest. This Court held that the notings recorded by the
Minister and Chief Minister for release of land in favour of the
society, were totally unjustified.
41. The next question which needs consideration is whether the
decision contained in letter dated 9.6.2000 is liable to be
nullified on the ground of arbitrariness and violation of Article 14
of the Constitution. The plea of the appellants is that even though
the construction of the sports complex and other buildings may not
be in conformity with law, the Government is duty-bound to treat
them at par with others like Hamdard Public School, St. Xavier
School, Shahbad Estate Extension Welfare Association, Scindia
Potteries etc., whose land was released from acquisition despite the
fact that constructions were made after issue of notification under
Section 4(1) and declaration under Section 6 of the Act and, in some
cases, even after the award was made. Their further plea is that in
view of the observations contained in the last part of para 182 of
the judgment of the Full Bench in Roshanara Bgum v. Union of India
(supra) and statement made by the counsel appearing on behalf of the
State, which finds mention in para 21 of the judgment of this Court
in Murari v. Union of India (supra), the representations made by
them for release of the land could not have been rejected on the
grounds that the construction has been raised after the acquisition
of land and the acquired land is needed for Vasant Kunj Housing
Project.
42. In our opinion, the Government’s decision not to withdraw
from the acquisition of land in question or de-notify the acquired
land, does not suffer from the vice of discrimination or arbitrary
exercise of power or non application of mind. With due deference to
the Full Bench of the High Court which disposed of the batch of writ
petitions and miscellaneous applications, the observations contained
in the last part of paragraph 182 of the judgment suggesting that
the petitioner/applicant can make representation for release of the
land and the concerned authorities can examine whether the sports
complex could serve the purpose of acquiring the land for the
particular scheme or the scheme can be modified or amended in
respect of the land in question were nothing more than pious hope
and the Government rightly did not take them seriously because in
the same paragraph the Full Bench unequivocally ruled that the land
is required for residential scheme of Vasant Kunj and the sports
complex built by the applicant was not in consonance with the public
purpose for which the land was earmarked in the scheme. The
statement made by the counsel representing the State before this
Court which finds mention in paragraph 21 of the judgment in Murari
v. Union of India (supra) was neither here nor there. It did not
amount to a commitment on behalf of the Government that
representations made for release of land will receive favourable
consideration. In any case, once this Court had made it clear in
Murari v. Union of India (supra) that in a matter involving
acquisition of thousands of acres of land, it would not be proper to
leave out some small portions here and there over which some
construction may have been made, the decision of the Government not
to withdraw from the acquisition of the land in question cannot be
faulted.
43. The appellants’ plea that the Government ought to have de-
notified the land covered by the sports complex because the same has
been built by spending crores of rupees and is being used by a large
section of people sounds attractive, but, after having given serious
thought to the entire matter, we are convinced that the Government
rightly refused to exercise discretion under Section 48(1) of the
Act for de-notifying the acquired land and the High Court did not
commit any error whatsoever by refusing to fall in the trap of
alluring argument that demolition of the sports complex built by
spending substantial amount will be a waste of national wealth and
nobody will be benefited by it. The appellants have not denied the
fact that the land on which the sports complex has been constructed
was acquired by the Government by issuing notification dated
23.1.1965 under Section 4(1) of the Act, which culminated in the
making of award dated 22.12.1980. It is also not their case that
the construction activity was started prior to initiation of
acquisition proceedings. Rather, their admitted stance is that they
came in possession of the land between 1990-1993, i.e., more than 10
years after finalization of the acquisition proceedings. This being
the position, the appellants cannot plead equity and seek court’s
intervention for protection of the unauthorised constructions raised
by them. It is trite to say that once the land is acquired by
following due process of law, the same cannot be transferred by the
land owner to another person and that any such transfer is void and
is not binding on the State. A transferee of the acquired land can,
at best, step into the shoes of the land-owner and lodge claim for
compensation – Gian Chand v. Gopala and others (1995) 2 SCC 528,
Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain
and others (1997) 1 SCC 37, Yadu Nandan Garg v. State of Rajasthan
and others JT (1995) 8 S.C. 179 and Jaipur Development Authority v.
Mahavir Housing Coop. Society, Jaipur and others (1996) 11 SCC 229.
44. The appellants have another unsurmountable hurdle in the
form of Section 3 of the 1972 Act, which contains prohibition
against transfer of the acquired land. That section reads as
under:-
“Prohibition on transfer of lands acquired by Central
Government.– No person shall purport to transfer by sale,
mortgage, gift, lease or otherwise any land or part
thereof situated in the Union territory of Delhi, which
has been acquired by the Central Government under the Land
Acquisition Act, 1984 or under any other law providing for
acquisition of land for a public purpose.”
Section 4 which contains provision for regulation of transfer of
lands which are under acquisition also reads as under:-
“Regulation on transfer of lands in relation to which
acquisition proceedings have been initiated. – No person
shall, except with the previous permission in writing of
the competent authority, transfer or purport to transfer
by sale, mortgage, gift, lease or otherwise any land or
part thereof situated in the Union territory of Delhi,
which is proposed to be acquired in connection with the
Scheme and in relation to which a declaration to the
effect that such land or part thereof is needed for a
public purpose having been made by the Central Government
under section 6 of the Land Acquisition Act, 1894, (1 of
1894) the Central Government has not withdrawn form the
acquisition under section 48 of that Act.”
45. The distinction between the above reproduced two provisions
is that while Section 3 contains an absolute prohibition on transfer
of the acquired land by sale, mortgage, gift, lease or otherwise,
Section 4 declares that no person shall, except with the previous
permission in writing of the competent authority, transfer or
purport to transfer by sale etc. of any land or part thereof, which
is proposed to be acquired in connection with the scheme and in
relation to which a declaration to the effect that such land or part
thereof is needed for a public purpose has been made by the Central
Government and the Central Government has not withdrawn from the
acquisition under Section 48(1).
46. The present case falls within the ambit of Section 3 of the
1972 Act. The land owners and Shri Satish Khosla must have been
aware of the prohibition on transfer of the acquired land, but by
taking advantage of the stay order passed by the High Court in Writ
Petition No.1753/1980, they appear to have entered into some
clandestine transaction pursuant to which Shri Satish Khosla
acquired possession of the land and proceeded to build the sports
complex and commercial facilities to which reference has been made
in the order of the Division Bench. We have described the
transaction as clandestine because the appellants are conspicuously
silent as to how Shri Satish Khosla came in possession of land in
question after 35 years of initiation of the acquisition proceedings
and 10 years of finalization thereof. During the course of hearing,
Shri Mukul Rohtagi, learned senior counsel appearing for the
appellants did make a statement that his client were put in
possession in furtherance of an agreement of sale, but no document
has been produced in support of this statement. Therefore, it is
not possible to take cognizance of the so-called agreement of sale.
In any case, even if such a transaction did take place, the same
will have to be treated as void in view of the express prohibition
contained in Section 3 of the 1972 Act.
47. Although, the then Minister for Urban Development, who
recorded note dated 8.6.1999, was extremely magnanimous to the
appellants when he wrote that the extensive construction must have
been made with full cooperation of public servants concerned, but
having carefully examined the entire record, we have no hesitation
to observe that the construction of this magnitude could not have
been possible, but for the active connivance of the concerned public
servants who turned blind eye to the huge structure being built on
the acquired land without any sanctioned plan. We are amazed to
note that after having secured some sort of transfer of the acquired
land in stark violation of the prohibition contained in Section 3 of
the 1972 Act, the appellants could raise massive structure
comprising cricket ground, tennis stadium, badminton courts,
swimming pool, table tennis room, squash court, etc. and cottages
with modern facilities without even submitting building plans for
sanction by any competent authority and without being noticed by
any of the authorities entrusted with the duty of checking
illegal/unauthorised construction. This mystery may perhaps never
be solved because the officers responsible for ignoring the blatant
violation of Section 3 of the 1972 Act, Delhi Development Authority
Act and Building Rules, Regulations and By-laws must have either
retired or moved to higher positions in the administration where
they will be able to block any inquiry in the matter. Be that as it
may, such illegal constructions cannot be protected by the court by
nullifying the decision taken by the Government not to withdraw from
the acquisition of the land in question.
48. At this stage, we may also take cognizance of the commercial
activities being undertaken in what has been described by the
appellants as sports complex simpliciter. The nature and magnitude
of the commercial activities may never have been revealed but for
the fact that the officer representing the respondents could bring
to the High Court’s notice the written statement filed by Shri
Satish Khosla in Suit No. 3064/1996 – M/s. Eli Lilly Ranbaxy Ltd.
and others v. Satish Khosla. In that suit, the plaintiff had sought
a decree of permanent injunction restraining the defendant from
letting out the garden for parties and functions during the currency
of lease agreement in respect of cottage no. 6. The contents of
paras 4, 6 and 11 of the written statement, which have been
extracted in the impugned order of the Division Bench of the High
Court, read as under:-
“4. Para no. 4 is denied. It is pertinent to note
that the Cottage in question is situated in the Shanti
Sports Club and is one of the 7 cottages in the said
Sports Club. Shanti Sports Club, of which the defendant
is the Chairman, came into existence in 1989 and the
sports facilities of the said Club are being utilized by
its members as well as others. The said Club has amongst
others a cricket ground, six tennis courts, swimming pool,
squash courts, billiards rooms and a host of other
facilities for use for its members. The Club has large
beautifully manicured lawn appealing to the eye. Since the
very inception of the Club, its beautiful lawns are hired
for wedding parties, birth-day parties and for other
festive occasions. These wedding parties have been held on
the lawns of the Club since 1991, and are the very life
and soul of the Club apart from its sports activities. In
fact, the aforementioned wedding parties and other
functions which are held on the lawns are the major source
of revenue for the Club. The club has more than 1500
members and about 200-300 frequent the club every day.
6. Para 6 is denied. The contents of this para are
absolutely false to the knowledge of the plaintiffs
inasmuch as the plaintiffs all along knew that the garden
in between the two Cottages was let out on hire for
marriage and other private parties. The defendant denies
any verbal assurance was given to the plaintiffs that the
garden was to be used for the families residing in two
cottages and not for any other purpose. The lawn/garden in
question in between the two cottages is of more than 3000
sq. yards in size and it was not hired out to the
plaintiff.
11. The averments made in para 11 are denied. It is
submitted that the plaintiffs have filed the present suit
only to harass the defendant. It is pertinent to note that
in the other Cottages in the Club several Diplomats
including Deputy High Commissioner of Pakistan, Ambassador
of Kazakastan and other dignitaries are staying for
several years without any complaint. It is denied that the
plaintiffs are entitled to a decree of permanent
injunction restraining the defendant from hiring out the
garden for functions and parties during the tenure of the
alleged lease agreement. The revenue generated from hiring
out the garden for functions and parties is significant
revenue and is necessary for the proper and efficient
running of the Club and these functions and parties are
the very life and soul of the Club.
The aforesaid averments made in the written statement
filed by Shri Satish Khosla in the above noted suit
clearly reveal that the cottages at the club and its lawns
are being used for commercial and rental purposes. In
respect of cottage No. 6 alone the club was charging large
amounts as per below under various agreements. These
details are as follows:-
1. According to the lease agreement by and between the
club and M/s.Eli Lilly Ranbaxy Ltd. the latter was
required to pay a rental of Rs.60,000/- p.m. to the former
during the first year of the lease.
2. The rent was liable to be increased by 5% after the
first years, 10% over the last rent paid after second year
and every year thereafter.
3. Agreement stipulated payment of advance rent in the sum
of Rs.4,50,000/- by M/s. Eli Lilly Ranbaxy Ltd. to the
Club.
4. Under maintenance and service agreement in respect of
the said premises M/s. Eli Lilly Ranbaxy Ltd. were
required to pay Rs.40,000/- p.m. to the Club.
5. The maintenance charges of the premises were liable to
be increased by 5% over the last charge paid after the
first year, and increase of 10% over the last charge paid
after the second year and every year thereafter.
6. Under an agreement for security services, for the same
cottage, the aforesaid lessee was required to pay
Rs.30,000/- to the club and these charges were liable to
be increased by 5% after first year and 10% after the
second year and every year thereafter.
7. Under an agreement styled as ‘hire agreement’, the
lessee was required to pay to the club a sum of
Rs.70,000/- p.m. for the use of the fittings and fixtures
installed in the cottage.
8. The lessee was also liable to pay to the club hire
charges of Rs.7,50,000/- as advance for the fittings and
fixtures installed in the cottage.”
49. From what we have noted above, it is crystal clear that the
appellants have been undertaking large scale commercial activities
in the complex and their so-called love for sports has substantial
flavor of commerce.
50. The plea of discrimination and violation of Article 14 of
the Constitution put forward by the appellants is totally devoid of
substance because they did not produce any evidence before the High
Court and none has been produced before this Court to show that
their land is identically placed qua the lands on which Hamdard
Public School, St. Xavier School, Scindia Potteries, etc. exist. In
the representations made to different functionaries of the
Government and DDA, the appellants did claim that other parcels of
the land have been de-notified and before the High Court a copy of
notification dated 6.9.1996 issued under Section 48(1) was produced,
but the said assertion and notification were not sufficient for
recording a finding that their case is identical to those whose land
had been denotified. The burden to prove the charge of
discrimination and violation of Article 14 was on the appellants.
It was for them to produce concrete evidence before the court to
show that their case was identical to other persons whose land had
been released from acquisition and the reasons given by the
Government for refusing to release their land are irrelevant or
extraneous. Vague and bald assertions made in the writ petition
cannot be made basis for recording a finding that the appellants
have been subjected to invidious or hostile discrimination. That
apart, we are prima facie of the view that the Government’s decision
to withdraw from the acquisition of some parcels of land in favour
of some individuals was not in public interest. Such decisions had,
to some extent, resulted in defeating the object of planned
development of Delhi on which considerable emphasis has been laid by
the Full Bench of the High Court and this Court. This being the
position, Article 14 cannot be invoked by the appellants for seeking
a direction to the respondents to withdraw from the acquisition of
the land in question. Article 14 of the Constitution declares that
the State shall not deny to any person equality before the law or
the equal protection of the laws within the territory of India. The
concept of equality enshrined in that Article is a positive concept.
The Court can command the State to give equal treatment to similarly
situated persons, but cannot issue a mandate that the State should
commit illegality or pass wrong order because in another case such
an illegality has been committed or wrong order has been passed. If
any illegality or irregularity has been committed in favour of an
individual or a group of individuals, others cannot invoke the
jurisdiction of the High Court or of this Court and seek a direction
that the same irregularity or illegality be committed in their
favour by the State or its agencies/instrumentalities. In other
words, Article 14 cannot be invoked for perpetuating irregularities
or illegalities. In Chandigarh Administration v. Jagjit Singh
(1995) 1 SCC 745, this Court made a lucid exposition of law on this
subject. The facts of that case were that the respondents, who had
given the highest bid for 338 sq. yds. Plot in Section 31A,
Chandigarh defaulted in paying the price in accordance with the
terms and conditions of allotment. After giving him opportunity of
showing cause, the Estate Officer cancelled the lease of the plot.
The appeal and the revision filed by him were dismissed by the Chief
Administrator and Chief Commissioner, Chandigarh respectively.
Thereafter, the respondent applied for refund of the amount
deposited by him. His request was accepted and the entire amount
paid by him was refunded. He then filed a petition for review of
the order passed by the Chief Commissioner, which was dismissed.
However, the officer concerned entertained the second review and
directed that the plot be restored to the respondent. The latter
did not avail benefit of this unusual order and started litigation
by filing writ petition in the High Court, which was dismissed on
March 18, 1991. Thereafter, the respondent again approached the
Estate Officer with the request to settle his case in accordance
with the policy of the Government to restore the plots to the
defaulters by charging forfeiture amount of 5%. His request was
rejected by the Estate Officer. He then filed another writ petition
before the High Court, which was allowed only on the ground that in
another case pertaining to Smt. Prakash Rani, the Administrator had
restored the plot despite dismissal of the writ petition filed by
her. While reversing the order of the High Court, this Court
observed as under:-
“We are of the opinion that the basis or the principle, if
it can be called one, on which the writ petition has been
allowed by the High Court is unsustainable in law and
indefensible in principle. Since we have come across many
such instances, we think it necessary to deal with such
pleas at a little length. Generally speaking, the mere
fact that the respondent-authority has passed a particular
order in the case of another person similarly situated can
never be the ground for issuing a writ in favour of the
petitioner on the plea of discrimination. The order in
favour of the other person might be legal and valid or it
might not be. That has to be investigated first before it
can be directed to be followed in the case of the
petitioner. If the order in favour of the other person is
found to be contrary to law or not warranted in the facts
and circumstances of his case, it is obvious that such
illegal or unwarranted order cannot be made the basis of
issuing a writ compelling the respondent-authority to
repeat the illegality or to pass another unwarranted
order. The extraordinary and discretionary power of the
High Court cannot be exercised for such a purpose. Merely
because the respondent-authority has passed one
illegal/unwarranted order, it does not entitle the High
Court to compel the authority to repeat that illegality
over again and again. The illegal/unwarranted action must
be corrected, if it can be done according to law — indeed,
wherever it is possible, the Court should direct the
appropriate authority to correct such wrong orders in
accordance with law — but even if it cannot be corrected,
it is difficult to see how it can be made a basis for its
repetition. By refusing to direct the respondent-authority
to repeat the illegality, the Court is not condoning the
earlier illegal act/order nor can such illegal order
constitute the basis for a legitimate complaint of
discrimination. Giving effect to such pleas would be
prejudicial to the interests of law and will do
incalculable mischief to public interest. It will be a
negation of law and the rule of law. Of course, if in case
the order in favour of the other person is found to be a
lawful and justified one it can be followed and a similar
relief can be given to the petitioner if it is found that
the petitioners’ case is similar to the other persons’
case. But then why examine another person’s case in his
absence rather than examining the case of the petitioner
who is present before the Court and seeking the relief. Is
it not more appropriate and convenient to examine the
entitlement of the petitioner before the Court to the
relief asked for in the facts and circumstances of his
case than to enquire into the correctness of the order
made or action taken in another person’s case, which other
person is not before the case nor is his case. In our
considered opinion, such a course — barring exceptional
situations — would neither be advisable nor desirable. In
other words, the High Court cannot ignore the law and the
well-accepted norms governing the writ jurisdiction and
say that because in one case a particular order has been
passed or a particular action has been taken, the same
must be repeated irrespective of the fact whether such an
order or action is contrary to law or otherwise. Each case
must be decided on its own merits, factual and legal, in
accordance with relevant legal principles. The orders and
actions of the authorities cannot be equated to the
judgments of the Supreme Court and High Courts nor can
they be elevated to the level of the precedents, as
understood in the judicial world.”
[emphasis added]
51. Similar is the ratio of the judgments in Narain Das v.
Improvement Trust, Amritsar (1973) 2 SCC 265, Gursharan Singh v. New
Delhi Municipal Committee (1996) 2 SCC 459, Secretary, Jaipur
Development Authority v. Daulat Mal Jain (supra), Yadu Nandan Garg
v. State of Rajasthan and others (supra), State of Haryana v. Ram
Kumar Mann [(1997) 3 SCC 321, Faridabad CT. Scan Centre v. D.G.
Health Services [(1997) 7 SCC 752], Style (Dress land) v. Union
Territory, Chandigarh [(1999) 7 SCC 89], State of Bihar v. Kameshwar
Prasad Singh (2000) 9 SCC 94, Union of India v. International
Trading Co. (2003) 5 SCC 437, Ekta Sakthi Foundation v. Govt. of NCT
of Delhi (2006) 10 SCC 337, Sanjay Kumar Munjal v. Chairman, UPSC
(2006) 8 SCC 42, K.K. Bhalla v. State of M.P. and others (2006) 3
SCC 581, National Institute of Technology v. Chandra Sekhar
Chaudhary (2007) 1 SCC 93, Vice Chancellor, M.D. University, Rohtak
v. Jahan Singh (2007) 5 SCC 77, State of Kerala and others v. K.
Prasad and another (2007) 7 SCC 140, Punjab State Electricity Board
and others v. Gurmail Singh (2008) 7 SCC 245 and Panchi Devi v.
State of Rajasthan and others (2009) 2 SCC 589.
52. Before concluding, we consider it necessary to enter a
caveat. In all developed countries, great emphasis has been
laid on the planned development of cities and urban areas. The
object of planned development has been achieved by rigorous
enforcement of master plans prepared after careful study of complex
issues, scientific research and rationalisation of laws. The people
of those countries have greatly contributed to the concept of
planned development of cities by strictly adhering to the planning
laws, the master plan etc. They respect the laws enacted by the
legislature for regulating planned development of the cities and
seldom there is a complaint of violation of master plan etc. in the
construction of buildings, residential, institutional or commercial.
In contrast, scenario in the developing countries like ours is
substantially different. Though, the competent legislatures have,
from time to time, enacted laws for ensuring planned development of
the cities and urban areas, enforcement thereof has been extremely
poor and the people have violated the master plans, zoning plans and
building regulations and bye-laws with impunity. In last four
decades, almost all cities, big or small, have seen unplanned
growth. In the 21st century, the menace of illegal and unauthorized
constructions and encroachments has acquired monstrous proportions
and everyone has been paying heavy price for the same. Economically
affluent people and those having support of the political and
executive apparatus of the State have constructed buildings,
commercial complexes, multiplexes, malls etc. in blatant violation
of the municipal and town planning laws, master plans, zonal
development plans and even the sanctioned building plans. In most
of the cases of illegal or unauthorized constructions, the officers
of the municipal and other regulatory bodies turn blind eye either
due to the influence of higher functionaries of the State or other
extraneous reasons. Those who construct buildings in violation of
the relevant statutory provisions, master plan etc. and those who
directly or indirectly abet such violations are totally unmindful of
the grave consequences of their actions and/or omissions on the
present as well as future generations of the country which will be
forced to live in unplanned cities and urban areas. The people
belonging to this class do not realize that the constructions made
in violation of the relevant laws, master plan or zonal development
plan or sanctioned building plan or the building is used for a
purpose other than the one specified in the relevant statute or the
master plan etc., such constructions put unbearable burden on the
public facilities/amenities like water, electricity, sewerage etc.
apart from creating chaos on the roads. The pollution caused due to
traffic congestion affects the health of the road users. The
pedestrians and people belonging to weaker sections of the society,
who cannot afford the luxury of air-conditioned cars, are the worst
victims of pollution. They suffer from skin diseases of different
types, asthma, allergies and even more dreaded diseases like cancer.
It can only be a matter of imagination how much the government has
to spend on the treatment of such persons and also for controlling
pollution and adverse impact on the environment due to traffic
congestion on the roads and chaotic conditions created due to
illegal and unauthorized constructions. This Court has, from time to
time, taken cognizance of buildings constructed in violation of
municipal and other laws and emphasized that no compromise should be
made with the town planning scheme and no relief should be given to
the violator of the town planning scheme etc. on the ground that he
has spent substantial amount on construction of the buildings etc. –
K. Ramdas Shenoy v. Chief Officers, Town Municipal Council, Udipi
1974 (2) SCC 506, Dr. G.N. Khajuria v. Delhi Development Authority
1995 (5) SCC 762, M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu 1999
(6) SCC 464, Friends Colony Development Committee v. State of Orissa
2004 (8) SCC 733, M.C. Mehta v. Union of India 2006 (3) SCC 399 and
S.N. Chandrasekhar v. State of Karnataka 2006 (3) SCC 208.
53. Unfortunately, despite repeated judgments by the this Court
and High Courts, the builders and other affluent people engaged in
the construction activities, who have, over the years shown scant
respect for regulatory mechanism envisaged in the municipal and
other similar laws, as also the master plans, zonal development
plans, sanctioned plans etc., have received encouragement and
support from the State apparatus. As and when the courts have
passed orders or the officers of local and other bodies have taken
action for ensuring rigorous compliance of laws relating to planned
development of the cities and urban areas and issued directions for
demolition of the illegal/unauthorized constructions, those in power
have come forward to protect the wrong doers either by issuing
administrative orders or enacting laws for regularization of illegal
and unauthorized constructions in the name of compassion and
hardship. Such actions have done irreparable harm to the concept of
planned development of the cities and urban areas. It is high time
that the executive and political apparatus of the State take serious
view of the menace of illegal and unauthorized constructions and
stop their support to the lobbies of affluent class of builders and
others, else even the rural areas of the country will soon witness
similar chaotic conditions.
54. In the result, the appeals are dismissed. However, by
taking note of the submission made by Shri Mukul Rohtagi that some
time may be given to his clients to vacate the land, we deem it
proper to grant thee months’ time to the appellants to handover
possession of the land to the concerned authority of DDA. This will
be subject to the condition that within two weeks from today an
affidavit is filed on behalf of the appellants by an authorised
person that possession of the land will be handed over to DDA by 30 th
November, 2009 and during this period no encumbrances whatsoever
will be created by the appellants or their agents and that no
compensation will be claimed for the construction already made.
Needless to say that if the required undertaking is not filed, the
concerned authorities of DDA shall be entitled to take possession of
the land and, if necessary, take police help for that purpose.
Contempt Petition Nos. 252-253 of 2001
55. We have dismissed the civil appeals by the above order.
Hence, the contempt petitions are dismissed.
………………….J.
[B.N. AGRAWAL]
………………….J.
[G.S. SINGHVI]
New Delhi
August 25, 2009.