Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 973 of 2007

Manohar Lal (D) by Lrs. ….Appellants

Versus

Ugrasen (D) by Lrs. & Ors. ...Respondents

With

Civil Appeal No. 974 of 2007

Ghaziabad Development Authority ….Appellant

Versus

Ugrasen (D) by Lrs. & Ors. ...Respondents

J U D G M E N T

Dr. B. S. CHAUHAN, J.

1.Both these appeals have been preferred by the appellants

being aggrieved of the judgment and order of the Allahabad High

Court dated 22

nd

July, 2003 passed in C.M.W.P. No.6644 of 1989 by

which the High Court has allowed the Writ Petition filed by

respondent No.1-Ugrasen quashing the allotment of land made in

favour of appellant-Manohar Lal and further directed to make the

allotment of land in favour of the said respondent-Ugrasen.

2.In these appeals, three substantial questions of law for

consideration of this Court are involved, they are, namely:

(a)As to whether the State Government – a Revisional Authority

under the Statute, could take upon itself the task of a lower

statutory authority?;

(b)Whether the order passed or action taken by a statutory

authority in contravention of the interim order of the Court is

enforceable?; and

(c)Whether Court can grant relief which had not been asked

for?

3.Facts and circumstances giving rise to these appeals are that

lands owned and possessed by predecessor-in-interest of private

appellant Manohar Lal and respondent Ugrasen were acquired under

the provisions of the Land Acquisition Act, 1894 (hereinafter referred

to as the ‘Act’). Notification under Section 4 of the Act was issued on

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13.08.1962 covering about 32 acres of land in the Revenue Estates

of Kaila Pargana Loni Dist. Meerut (now Ghaziabad). Declaration

under Section 6 of the Act in respect of the said land was made on

24.05.1965 along with Notification under Section 17(1) invoking the

urgency clause. Possession of the land except one acre was taken

on 13.07.1965 and award under Section 11 of the Act was made on

11.05.1970.

The Government of Uttar Pradesh had framed Land Policy

dated 30/31.07.1963 to the effect that where a big chunk of land

belonging to one person is acquired for planned development, except

the land covered by roads, he shall be entitled to the extent of 40% of

his total acquired land in a residential area after development in lieu

of compensation. The High-Powered Committee dealing with the

issue laid down that applications for that purpose be filed within a

period of one month from the date of taking the possession of the

land which was subsequently changed to within one month from the

date of completion of acquisition proceedings.

4.Both the private parties, i.e. Manohar Lal and Ugrasen

claimed that they had made applications to claim the

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benefit under the said policy within time. Shri Ugrasen

claimed that he had submitted the application on

31.12.1966 but no action was taken on the said

application. Therefore, he filed another application on

7.9.1971. Manohar Lal-appellant claimed to have filed

application for the said purpose on 22.6.1969 and was

allotted land bearing plot Nos. 5, 7 to 16 and 25 to 33 in

Sector 3N vide order dated 27.12.1979 as per the

direction of the Chief Minister of Uttar Pradesh. Shri

Ugrasen filed Writ Petition No. 1932 of 1980 before

Allahabad High Court challenging the said order dated

27.12.1979. Subsequently, vide order dated 7.3.1980,

the land allotted to Manohar Lal was changed to Plot Nos.

25 to 33. At the time of consideration of application of

Ugrasen by the State Government, the Ghaziabad

Development Authority (hereinafter called GDA) vide

letter dated 18.3.1980 pointed out that submission of

application by Shri Ugrasen was surrounded by

suspicious circumstances as it was the last entry made on

31.12.1966 and signature of the receiving clerk had been

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made by a person who joined service only in 1979. In the

meanwhile, Shri Manohar Lal filed Writ Petition No. 4159

of 1980 and the High Court restrained the authorities from

making allotment to anyone else from the land allotted to

him as per letter dated 7.3.1980.

5.In spite of the said interim order in force, the State

Government vide order dated 12.12.1980 directed GDA

to make the allotment of land in favour of Shri Ugrasen

and thus, in compliance of the same, GDA issued letter of

allotment dated 22.12.1980 in his favour. Shri Ugrasen

submitted letter dated 1.1.1981 to GDA to give an

alternative land as the land covered by Plot Nos. 5 to 16

had been subject matter of the interim order of the High

Court in a writ petition filed by Shri Manohar Lal.

6.Shri Ugrasen withdrew his Writ Petition No.1932 of

1980 on 6.3.1981 and deposited the compensation

amount, i.e. Rs.32,010.60 on 3.3.1981. GDA allotted the

land to Shri Ugrasen in Plot Nos. 36, 38, 39, 44, 46 and

47 vide order dated 02.01.1985, though it was also the

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land in dispute i.e. covered by the interim order passed by

the High Court. Shri Ugrasen refused to take those plots

as is evident from letter dated 7.1.1985 as certain

encroachment had been made upon the said lands.

GDA, vide letter dated 27.3.1989, allotted Plot Nos. 5, 7

to 16 to Shri Manohar Lal. Thus, being aggrieved, Shri

Ugrasen filed Writ Petition No. 6644 of 1989 before the

High Court for quashing of the said allotment in favour of

Shri Manohar Lal.

7.Parties exchanged the affidavits and after hearing the

parties and considering the material on record, the High

Court allowed the said Writ Petition vide judgment and

order dated 22

nd

July, 2003. Hence, these appeals.

8.Shri P.S. Patwalia, learned Senior counsel appearing

for the appellant-Manohar Lal and Shri Vijay Hansaria,

learned Senior counsel appearing for GDA have

contended that Shri Ugrasen had never filed application

for allotment in time. There had been manipulation in

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registration of the said application and it has been

surrounded with suspicious circumstances. The

application of Shri Ugrasen had been considered directly

by the State Government-the revisional authority, though

the State Government could not take the task of GDA

upon itself. Land of Shri Ugrasen had been acquired for

roads, thus, as per the Land Policy he was not entitled for

any benefit of the same. Shri Ugrasen in his writ petition

had asked only for quashing the allotment in favour of

Manohar Lal and there was no prayer that the said land

be allotted to him. Therefore, while issuing a direction for

making the allotment in favour of Ugrasen, the High Court

has exceeded its jurisdiction. Thus, appeals deserve to

be allowed.

9.On the other hand, Shri Debal Banerji, learned Senior

counsel appearing for the respondent-Ugrasen and Shri

Pramod Swarup, learned Senior counsel appearing for

the State of U.P. have vehemently opposed the appeals

contending that once a decision has been taken as per

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the entitlement of the respondent-Ugrasen and the High

Court has examined each and every fact, question of re-

appreciation of evidence etc. is not permissible in

exercise of the discretionary jurisdiction by this Court.

Manohar Lal had also been allotted the land by the Chief

Minister and not by GDA, thus no fault can be found with

allotment in favour of Shri Ugrasen. Appeals lack merit

and are liable to be dismissed.

10. We have considered the rival submissions made

by learned counsel for the parties and perused the

records.

11.In Rakesh Ranjan Verma & Ors. Vs. State of Bihar & Ors.,

AIR 1992 SC 1348, the question arose as to whether the State

Government, in exercise of its statutory powers could issue any

direction to the Electricity Board in respect of appointment of its

officers and employees. After examining the statutory provisions, the

Court came to the conclusion that the State Government could only

take the policy decisions as how the Board will carry out its functions

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under the Act. So far as the directions issued in respect of

appointment of its officers was concerned, it fell within the exclusive

domain of the Board and the State Government had no competence

to issue any such direction. The said judgment has been approved

and followed by this Court in U.P. State Electricity Board Vs. Ram

Autar and Anr. (1996) 8 SCC 506.

12.In Bangalore Development Authority and Ors. Vs. R.

Hanumaiah and Ors. (2005) 12 SCC 508, this Court held that the

power of the Government under Section 65 of the Bangalore

Development Authority Act, 1976 was not unrestricted and the

directions which could be issued were those which were to carry out

the objective of the Act and not those which are contrary to the Act

and further held that the directions issued by the Chief Minister to

release the lands were destructive of the purposes of the Act and the

purposes for which the BDA was created.

13.In Bangalore Medical Trust Vs. B.S. Muddappa & Ors. AIR

1991 SC 1902, this Court considered the provisions of a similar Act,

namely, Bangalore Development Authority Act, 1976 containing a

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similar provision and held that Government was competent only to

give such directions to the authority as were in its opinion necessary

or expedient and for carrying out the purposes of the Act. The

Government could not have issued any other direction for the reason

that Government had not been conferred upon unfettered powers in

this regard. The object of the direction must be only to carry out the

object of the Act and only such directions as were reasonably

necessary or expedient for carrying out the object of the enactment

were contemplated under the Act. Any other direction not covered by

such powers was illegal.

14.In Poonam Verma & Ors. Vs. Delhi Development Authority,

AIR 2008 SC 870, a similar view has been re-iterated by this Court

dealing with the provisions of Delhi Development Authority Act, 1957.

In the said case, the Central Government had issued a direction to

make allotment of flat out of turn. The Court held as under:

“......Section 41 of the Act, only envisages that the

respondent would carry out such directions that may be

issued by the Central Government from time to time for

the efficient administration of the Act. The same does not

take within its fold an order which can be passed by the

Central Government in the matter of allotment of flats by

the Authority. Section 41 speaks about policy decision.

Any direction issued must have a nexus with the efficient

1

administration of the Act. It has nothing to do with carrying

out of the plans of the authority in respect of a particular

scheme……….Evidently, the Central Government had no

say in the matter either on its own or under the Act. In

terms of the brochure, Section 41 of the Act does not

clothe any jurisdiction upon the Central Government to

issue such a direction.”

15.In State of U.P. Vs. Neeraj Awasthi and Ors. (2006) 1 SCC

667, this Court held as follows in context of Government directions:

“36. Such a decision on the part of the State Government

must be taken in terms of the constitutional scheme, i.e.,

upon compliance of the requirement of Article 162 read

with Article 166 of the Constitution of India. In the instant

case, the directions were purported to have been issued

by an officer of the State. Such directions were not shown

to have been issued pursuant to any decision taken by a

competent authority in terms of the Rules of Executive

Business of the State framed under Article 166 of the

Constitution of India.”

16.In The Purtabpore Co., Ltd. Vs. Cane Commissioner of

Bihar and Ors. AIR 1970 SC 1896, this Court has observed :

“The power exercisable by the Cane Commissioner under

Clause 6(1) is a statutory power. He alone could have

exercised that power. While exercising that power he

cannot abdicate his responsibility in favour of anyone -

not even in favour of the State Government or the Chief

Minister. It was not proper for the Chief Minister to have

interfered with the functions of the Cane Commissioner.

In this case what has happened is that the power of the

Cane Commissioner has been exercised by the Chief

1

Minister, an authority not recognised by Clause (6) read

with Clause (11) but the responsibility for making those

orders was asked to be taken by the Cane Commissioner.

The executive officers entrusted with statutory

discretions may in some cases be obliged to take into

account considerations of public policy and in some

context the policy of a Minister or the Government as a

whole when it is a relevant factor in weighing the policy

but this will not absolve them from their duty to exercise

their personal judgment in individual cases unless explicit

statutory provision has been made for them to be given

binding instructions by a superior.”

17.In Chandrika Jha Vs. State of Bihar and Ors. AIR 1984 SC

322, this Court while dealing with the provisions of Bihar and Orissa

Co-operative Societies Act, 1935, held as under:

“The action of the then Chief Minister cannot also be

supported by the terms of Section 65A of the Act which

essentially confers revisional power on the State

Government. There was no proceeding pending before

the Registrar in relation to any of the matters specified in

Section 65A of the Act nor had the Registrar passed any

order in respect thereto. In the absence of any such

proceeding or such order, there was no occasion for the

State Government to invoke its powers under Section 65A

of the Act. In our opinion, the State Government cannot

for itself exercise the statutory functions of the Registrar

under the Act or the Rules.”

18.In Anirudhsinhji Karansinghji Jadeja & Anr. Vs. State of

Gujarat AIR 1995 SC 2390, it was observed :

1

“This is a case of power conferred upon one authority

being really exercised by another. If a statutory

authority has been vested with jurisdiction, he has to

exercise it according to its own discretion. If the

discretion is exercised under the direction or in

compliance with some higher authority's instruction, then

it will be a case of failure to exercise discretion

altogether.” (Emphasis added)

19.In K.K. Bhalla Vs. State of M.P. & Ors. AIR 2006 SC 898, this

Court has de-lineated the functions of the State Government and the

Development Authority, observing that :

“59. Both the State and the JDA have been assigned

specific functions under the statute. The JDA was

constituted for a specific purpose. It could not take action

contrary to the scheme framed by it nor take any action

which could defeat such purpose. The State could not

have interfered with the day-to-day functioning of a

statutory authority. Section 72 of the 1973 Act authorizes

the State to exercise superintendence and control over

the acts and proceedings of the officers appointed under

Section 3 and the authorities constituted under the Act but

thereby the State cannot usurp the jurisdiction of the

Board itself. The Act does not contemplate any

independent function by the State except as specifically

provided therein…. the State in exercise of its executive

power could not have directed that lands meant for use

for commercial purposes may be used for industrial

purposes….. the power of the State Government to issue

direction to the officers appended under Section 3 and the

authorities constituted under the Act is confined only to

matters of policy and not any other. Such matters of

policy yet again must be in relation to discharge of duties

by the officers of the authority and not in derogation

1

thereof…. The direction of the Chief Minister being

de'hors the provisions of the Act is void and of no effect.”

20. In Indore Municipality Vs. Niyamatulla (Dead through L.Rs.)

AIR 1971 SC 97, this Court considered a case of dismissal of an

employee by an authority other than the authority competent to pass

such an order i.e. the Municipal Commissioner, the order was held to

be without jurisdiction and thus could be termed to have been passed

under the relevant Act. This Court held that “to such a case the

Statute under which action was purported to be taken could afford no

protection”.

21. In Tarlochan Dev Sharma Vs. State of Punjab

& Ors. (2001) 6 SCC 260, this Court, after placing

reliance upon a large number of its earlier judgments,

observed as under:

“In the system of Indian democratic governance as

contemplated by the Constitution, senior officers

occupying key positions such as Secretaries are not

supposed to mortgage their own discretion, volition

and decision-making authority and be prepared to

give way or being pushed back or pressed ahead at

the behest of politicians for carrying out commands

having no sanctity in law. The Conduct Rules of Central

Government Services command the civil servants to

1

maintain at all times absolute integrity and devotion to

duty and do nothing which is unbecoming of a

government servant. No government servant shall in the

performance of his official duties, or in the exercise of

power conferred on him, act otherwise than in his best

judgment except when he is acting under the direction of

his official superior.” (Emphasis added)

22.Therefore, the law on the question can be summarised to the

effect that no higher authority in the hierarchy or an appellate or

revisional authority can exercise the power of the statutory authority

nor the superior authority can mortgage its wisdom and direct the

statutory authority to act in a particular manner. If the appellate or

revisional Authority takes upon itself the task of the statutory authority

and passes an order, it remains unenforceable for the reason that it

cannot be termed to be an order passed under the Act.

23.In Mulraj Vs. Murti Raghunathji Maharaj, AIR 1967 SC 1386,

this Court considered the effect of action taken subsequent to

passing of an interim order in its disobedience and held that any

action taken in disobedience of the order passed by the Court would

be illegal. Subsequent action would be a nullity.

1

24.In Surjit Singh Vs. Harbans Singh, AIR 1996 SC 135, this

Court while dealing with the similar issue held as under:

“In defiance of the restraint order, the

alienation/assignment was made. If we were to let it go as

such, it would defeat the ends of justice and the prevalent

public policy. When the Court intends a particular state of

affairs to exist while it is in seisin of a lis, that state of

affairs is not only required to be maintained, but it is

presumed to exist till the Court orders otherwise. The

Court, in these circumstances has the duty, as also the

right, to treat the alienation/assignment as having not

taken place at all for its purposes.”

25.In All Bengal Excise Licensees Association Vs.

Raghabendra Singh & Ors, AIR 2007 SC 1386, this court held as

under:

“A party to the litigation cannot be allowed to take an

unfair advantage by committing breach of an interim order

and escape the consequences thereof..... the wrong

perpetrated by the respondents in utter disregard of the

order of the High Court should not be permitted to hold

good.”

26.In Delhi Development Authority Vs. Skipper Construction

Co. (P) Ltd. & Anr. AIR 1996 SC 2005, this court after making

reference to many of the earlier judgments held:

“On principle that those who defy a prohibition ought not

to be able to claim that the fruits of their defiance are

1

good, and not tainted by the illegality that produced

them.”

27.In Gurunath Manohar Pavaskar Vs. Nagesh Siddappa

Navalgund, AIR 2008 SC 901, this Court while dealing with the

similar issues held that even a Court in exercise of its inherent

jurisdiction under Section 151 of the Code of Civil Procedure, 1908, in

the event of coming to the conclusion that a breach to an order of

restraint had taken place, may bring back the parties to the same

position as if the order of injunction has not been violated.

28.In view of the above, it is evident that any order passed by any

authority in spite of the knowledge of the interim order of the court is

of no consequence as it remains a nullity.

29.In Messrs. Trojan & Co. Vs. RM.N.N. Nagappa Chettiar AIR

1953 SC 235, this Court considered the issue as to whether relief not

asked for by a party could be granted and that too without having

proper pleadings. The Court held as under:

“It is well settled that the decision of a case cannot

be based on grounds outside the pleadings of the parties

and it is the case pleaded that has to be found. Without

an amendment of the plaint, the Court was not entitled to

1

grant the relief not asked for and no prayer was ever

made to amend the plaint so as to incorporate in it an

alternative case.”

30.A similar view has been re-iterated by this Court in Krishna

Priya Ganguly etc.etc. Vs. University of Lucknow & Ors. etc. AIR

1984 SC 186; and Om Prakash & Ors. Vs. Ram Kumar & Ors., AIR

1991 SC 409, observing that a party cannot be granted a relief which

is not claimed.

31.Dealing with the same issue, this Court in Bharat Amratlal

Kothari Vs. Dosukhan Samadkhan Sindhi & Ors., AIR 2010 SC

475 held:

“Though the Court has very wide discretion in

granting relief, the court, however, cannot, ignoring and

keeping aside the norms and principles governing grant of

relief, grant a relief not even prayed for by the petitioner.”

32.In Fertilizer Corporation of India Ltd. & Anr. Vs. Sarat

Chandra Rath & Ors., AIR 1996 SC 2744, this Court held that “the

High Court ought not to have granted reliefs to the respondents

which they had not even prayed for.”

1

33. In view of the above, law on the issue can be

summarised that the Court cannot grant a relief which has

not been specifically prayed by the parties.

34. The instant case requires to be examined in the

light of the aforesaid certain legal propositions.

Section 41 of the U.P. Urban Planning and

Development Act, 1973 reads as under:

“41. Control by State Government-(1) The

Authority, the Chairman or the Vice-Chairman

shall carry out such directions as may be

issued to it from time to time by the State

Government for the efficient administration of

this Act.

(2)……………...........................

(3)The State Government may, at any time, either on

its own motion or on application made to it in this

behalf, call for the records of any case disposed of

or order passed by the authority or Chairman for the

purpose of satisfying itself as to the legality or

propriety of any order passed or direction issued

and may pass such order or issue such direction in

relation thereto as it may think fit:

Provided that the State Government shall not

pass an order prejudicial to any person

without affording such person a reasonable

opportunity of being heard.

(4)………………………………..”

1

35. Clause (1) thereof empowers the State

Government to issue general directions which are

necessary to properly enforce the provisions of the Act.

Clause (3) thereof make it crystal clear that the State

Government is a revisional authority. Therefore, the

scheme of the Act makes it clear that if a person is

aggrieved by an order of the authority, he can prefer an

appeal before the Appellate Authority i.e. Divisional

Commissioner and the person aggrieved of that order

may file Revision Application before the State

Government. However, the State Government cannot

pass an order without giving opportunity of hearing to the

person, who may be adversely affected.

36. In the instant case, it is the revisional authority

which has issued direction to GDA to make allotment in

favour of both the parties. Orders had been passed

without hearing the other party. The authority, i.e. GDA

did not have the opportunity to examine the case of either

2

of the said parties. The High Court erred in holding that

Clause (1) of Section 41 empowers the State Government

to deal with the application of an individual. The State

Government can take only policy decisions as to how the

statutory provisions would be enforced but cannot deal

with an individual application. Revisional authority can

exercise its jurisdiction provided there is an order passed

by the lower authority under the Act as it can examine

only legality or propriety of the order passed or direction

issued by the authority therein.

37. In view thereof, we are of the considered opinion

that there was no occasion for the State Government to

entertain the applications of the said parties for allotment

of land directly and issue directions to GDA for allotment

of land in their favour.

38. Admittedly, the interim order passed by the High

Court in favour of Shri Manohar Lal in Writ Petition No.

4159 of 1980 was in force and it restrained the Authorities

2

to make allotment of the land in dispute in favour of

anyone else. Indisputably, the State Government as well

as the GDA remained fully alive of the factum of

subsistence of the said interim order as is evident from

the correspondence between them. In view of the law

referred to hereinabove, order passed by the State

Government in contravention of the interim order, remains

unenforceable and inexecutable.

More so, in the writ petition filed by Shri Ugrasen relief

sought was limited only to quash the allotment made in

favour of Shri Manohar Lal. No relief was sought for

making the allotment in favour of the writ petitioner/Shri

Ugrasen. However, the High Court vide impugned

judgment and order has issued direction to make the

allotment in his favour. Thus, we are of the view that

issuance of such a direction was not permissible in law.

Even otherwise as Shri Ugrasen’s land had been

acquired for roads, he could not make application for

taking benefit of the Land Policy, particularly, when the

2

Land Policy was not declared to be invalid or violative of

equality clause enshrined in Article 14 of the Constitution.

39. The High Court failed to consider objections

raised on behalf of GDA in its letter dated 19.4.1980 to

the State Government pointing out as follows:

(a)Application of Ugrasen is entered on 31.12.1966 as the last

entry in Postal Receipt register.

(b)Entry is at Sl. 15498.

(c)Entry is in different ink.

(d)True copy of application now submitted bears the date

13.12.1966.

(e)There is no signature on the cyclostyled copy.

(f)Application was made in 1971 and was rejected in 1977 by

Shri Watal. Decision not challenged. Ugrasen kept quiet till

1980.

(g)Clerk Mr. Jai Prakash was not working before 1979.

40. It is settled legal proposition that burden lies on the

person, who alleges/avers/pleads for existence of a fact.

2

Sh. Ugrasen was95 under an obligation to establish the

fact of submission of the application in time. Entry in

respect of his application has been made in Postal

Receipt Register. As said application was sent by post,

Sh. Ugrasen could explain as to whether the application

was sent by Registered Post/Ordinary Post or under

Postal Certificate and as to whether he could produce the

receipt, if any, for the same. In such a fact-situation, the

application filed by Shri Ugrasen could not have been

entertained at all, even if he was entitled for the benefit of

the Land Policy.

41. The High Court committed an error observing

that if the State Government had allowed the application

filed by Ugrasen it was implicit that delay, if any, in

making the claim stood95 condoned. Such an observation

is not in consonance with law for the reason that if there is

a delay in filing application, the question would arise as to

whether the authority has a right to condone the delay.

Even if, the delay can be condoned, the authority had to

2

examine as to whether there was sufficient cause

preventing the applicant to approach the authority in time.

But, once the delay has been considered without

application of mind, in a fact-situation like in the instant

case, the question of deemed condonation would not

arise. More so, the High Court could not examine the

question of fact as to whether the application was made

within time or not, particularly, in view of the fact that the

authority had been making the allotment though

application had not been made at all in time and it was

only manipulation of the record of the authority with the

collusion of its staff.

42. In fact, such exercise by the State amounts to

colourable exercise of power. In State of Punjab & Anr.

Vs. Gurdial Singh & Ors. AIR 1980 SC 319, this Court

dealing with such an issue observed as under:

“Legal malice is gibberish unless juristic clarity

keeps it separate from the popular concept of

personal vice. Pithily put, bad faith which

invalidates the exercise of power - sometimes

called colourable exercise or fraud on power

and oftentimes overlaps motives, passions

2

and satisfaction - is the attainment of ends

beyond the sanctioned purposes of power by

simulation or pretension of gaining a

legitimate goal. If the use of the power is for

the fulfilment of a legitimate object the

actuation or catalysation by malice is not

legicidal. The action is bad where the true

object is to reach an end different from the

one for which the power is entrusted, goaded

by extraneous considerations, good or bad,

but irrelevant to the entrustment. When the

custodian of power is influenced in its exercise

by considerations outside those for promotion

of which the power is vested the court calls it

a colourable exercise and is undeceived by

illusion.”

43. The State Government, being the revisional authority,

could not entertain directly the applications by the said

applicants, namely, Sh.Ugrasen and Sh. Manohar Lal.

The action of the State Government smacks of

arbitrariness and is nothing but abuse of power as the

State Government deprived GDA to exercise its power

under the Act, and deprived the aggrieved party to file

appeal against the order of allotment. Thus, orders

passed by the State Government stood vitiated. More so,

it was a clear cut case of colourable exercise of power.

2

44. So far as the case of allotment in favour of Manohar

Lal is concerned in more than one respect, it is by no

means better than the case of Ugrasen as the initial

allotment had been made by GDA in his favour

consequent to the directions of the Chief Minister of Uttar

Pradesh who had no competence to deal with the

subject under the Statute and he has already been put in

possession of a part of allotted land in commercial area,

contrary to the Land Policy.

45. There are claims and counter claims regarding

the dates of Section 6 declaration; taking of possession of

land; and of making Awards so far as the land of

Manohar Lal is concerned. As per the affidavit filed by

the Vice-Chairman, GDA, Section 6 declaration was

made on 24.5.1965 invoking the urgency clause under

section 17(1); possession was taken on 13.7.1965; and

Award was made on 11.5.1970. Manohar Lal preferred

writ petition no.4159/1980 before the Allahabad High

Court stating that Section 6 declaration in respect of his

2

land was made on 30.1.1969, possession was taken on

29.5.1969 and Award was made on 11.6.1971. None of

the parties considered it proper to place the authentic

documents before the Court so that the real facts be

determined. In such a fact situation, we are not in a

position to decide as to whether Manohar Lal’s application

was filed in time as he had claimed in the said writ petition

that he filed the First Application on 22.6.1969. However,

one thing is clearly evident from the affidavit filed by Vice

Chairman, GDA that the land allotted to both of these

parties has been part of commercial area and not of

residential area. In view thereof, any allotment made in

favour of Manohar Lal so far, had been illegal as the

application could not have been entertained by the Chief

Minister and further appellant could not get allotment in

commercial area. The Land Policy provided only for

allotment of land in residential area.

46. The fact of illegal allotment of land in commercial

area has been brought to the notice of the Court first time

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vide affidavit of the Vice-Chairman, GDA dated

27.5.2010. Thus, it is crystal clear that such facts had not

been brought on record before the High Court by GDA at

any stage in any of the writ petitions nor it had been

pointed out to the State Government when applications of

both these parties had been entertained directly by the

Chief Minister and the State Government. Only

explanation furnished by the Vice-Chairman, GDA, in his

affidavit is that due to inadvertence it escaped the notice

of GDA that the plots had been categorized as

commercial in the Master Plan and could not be allotted in

favour of any applicant. Even today, the said plots

continue to be in commercial area and not in residential

area.

47. The present appellants had also not disclosed

that land allotted to them falls in commercial area. When

a person approaches a Court of Equity in exercise of its

extraordinary jurisdiction under Article 226/227 of the

Constitution, he should approach the Court not only with

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clean hands but also with clean mind, clean heart and

clean objective. “Equally, the judicial process should

never become an instrument of appreciation or abuse or

a means in the process of the Court to subvert justice.”

Who seeks equity must do equity. The legal maxim

“Jure naturaw aequum est neminum cum alterius

detrimento et injuria fieri locupletiorem”, means that it is a

law of nature that one should not be enriched by the loss

or injury to another. (vide The Ramjas Foundation &

Ors. Vs. Union of India & Ors. AIR 1993 SC 852; K.P.

Srinivas Vs. R.M. Premchand & ors. (1994) 6 SCC 620

and Nooruddin Vs. (Dr.) K.L. Anand (1995) 1 SCC

242).

48. Similarly, in Ramniklal N. Bhutta & Anr. Vs.

State of Maharashtra & Ors. AIR 1997 SC 1236, this

Court observed as under:-

“The power under Article 226 is

discretionary. It will be exercised only in

furtherance of interest of justice and not

merely on the making out of a legal

point…..the interest of justice and the

public interest coalesce. They are very

often one and the same. ….. The Courts

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have to weigh the public interest vis-à-

vis the private interest while

exercising….any of their discretionary

powers (Emphasis added).

49. In M/s Tilokchand Motichand & Ors. Vs. H.B.

Munshi & Anr. AIR 1970 SC 898; State of Haryana Vs.

Karnal Distillery, AIR 1977 SC 781; and Sabia Khan &

Ors. Vs. State of U.P. & Ors. AIR 1999 SC 2284, this

Court held that filing totally misconceived petition

amounts to abuse of the process of the Court. Such a

litigant is not required to be dealt with lightly, as petition

containing misleading and inaccurate statement, if filed, to

achieve an ulterior purpose amounts to abuse of the

process of the Court. A litigant is bound to make “full

and true disclosure of facts.”

50. In Abdul Rahman Vs. Prasony Bai & Anr. AIR

2003 SC 718; S.J.S. Business Enterprises (P) Ltd. Vs.

State of Bihar & Ors. (2004) 7 SCC 166; and Oswal

Fats & Oils Ltd. Vs. Addl. Commissioner (Admn),

Bareily Division, Bareily & Ors. JT 2010 (3) SC 510,

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this Court held that whenever the Court comes to the

conclusion that the process of the Court is being abused,

the Court would be justified in refusing to proceed further

and refuse relief to the party. This rule has been evolved

out of need of the Courts to deter a litigant from abusing

the process of the Court by deceiving it.

51. In view of the above, we are of the considered

opinion that Shri Manohar Lal did not approach the Court

with disclosure of true facts, and particularly, that he had

been allotted the land in the commercial area by GDA on

the instruction of the Chief Minister of Uttar Pradesh.

52. It is a fit case for ordering enquiry or initiating

proceedings for committing criminal contempt of the Court

as the parties succeeded in misleading the Court by not

disclosing the true facts. However, we are not inclined to

waste court’s time further in these cases. Our experience

has been that the so-called administration is not likely to

wake-up from its deep slumber and is never interested to

redeem the limping society from such hapless situations.

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We further apprehend that our pious hope that

administration may muster the courage one day to initiate

disciplinary/criminal proceedings against such

applicants/erring officers/employees of the authority, may

not come true. However, we leave the course open for

the State Government and GDA to take decision in regard

to these issues and as to whether GDA wants to recover

the possession of the land already allotted to these

applicants in commercial area contrary to the Land Policy

or value thereof adjusting the amount of compensation

deposited by them, if any.

53. In view of the above, Civil Appeal No. 974 of

2007 filed by GDA is allowed. The Judgment and order of

the High Court dated 22.7.2003 passed in Writ Petition

No. 6644 of 1989 is hereby set aside. Civil Appeal No.

973 of 2007 filed by Manohar Lal is dismissed. No costs.

……………………………..J.

(Dr. B.S. CHAUHAN)

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…………………………………..J.

(SWATANTER KUMAR)

New Delhi,

June 3, 2010

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