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PETITIONER:

M/S D.L.F. UNIVERSAL LTD.

Vs.

RESPONDENT:

PROF.A.LAKSHMI SAGAR & ORS.

DATE OF JUDGMENT: 02/09/1998

BENCH:

S.C. AGRAWAL, A.P. MISRA

ACT:

HEADNOTE:

JUDGMENT:

[With Civil appeals Nos. 4546-45/92

and I.A Nos 1-42 in S.L.P.(C) No. 10914-

55 of 1991]

J U D G M E N T

S.C. AGRAWAL, J.

Civil Appeals Nos.4546-48/92 and Civil Appeals No. 4543-

45/1992

These appeals arise out of three writ petitions filed

by way of public interest litigation in the Karnataka High

Court to challenge the order dated June 29, 1991 passed by

the Government of Karnataka approving the scheme framed by

M/s D.L.F. Universal Limited [for short "DLF] for

development of 270 sites for country villas in Tavarekere

Hobli, Bangalore South Taluk, Bangalore District. By its

judgment dated April 24, 1992 the High Court, while allowing

the said writ petitions has set aside the said order of the

State Government dated June 29, 1991.

During the period 1972-76, forty-two serving and

retired members of the Indian defence Forces individually

purchased lands admeasuring about 414 acres in Magadi Taluk

of Bangalore Rural District. The owners of these lands

formed themselves into a cooperative society called "the

Arkavati Progressive Farmers Cooperative Society"

[hereinafter referred to as `the Cooperative Society"]. In

1979 the said land owners submitted applications before the

Special Deputy Commissioner, Bangalore Rural District, for

permission to divert their lands to non-agricultural

purposes under Section 95 of the Karnataka Land Revenue Act,

1964 [hereinafter referred to as "the Land Revenue Act"].

The Special Deputy commissioner, after obtaining the views

of the Director (Town Planning), passed orders in May, June

and July 1979 in some of those cases according sanction for

diversion of the lands for non-

agricultural/industrial/residential purposes subject to the

conditions mentioned in those orders. In other cases the

Special Deputy commissioner either did not communicate the

order rejecting the request for permission or did not pass

any kind of order for a period of four months from the date

of application filed by the different holders with the

result that in all such cases permission sought was deemed

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to have been granted under Section 95(5) of the Land Revenue

Act. The Bangalore Water Supply and Sewerage Board

[hereinafter referred to as "the Water Supply and sewerage

Board"] filed appeals against the said orders/deemed orders

of the special Deputy commissioner before the Karnataka

Appellate Tribunal [hereinafter referred to as "the

Tribunal"] under section 49 of the Act. The said appeals

were dismissed by the Tribunal by its judgment dated August

13, 1981. After the passing of the said order of the

Tribunal dated August 13, 1981 the owners whose applications

had been rejected earlier and those who did not receive the

orders on their applications regarding conversion filed

fresh applications before the Special Deputy commissioner

and the Special Commissioner by his orders dated March 27,

1982 granted permission for conversion under Section 95 to

those applicants also. Feeling aggrieved by the said

judgment of the Tribunal as well as the orders dated March

27, 1982 passed by the Special Deputy Commissioner, the

Water Supply and Sewerage Board filed writ petition

[W.P.Nos. 19919-19954 of 82 and 21172-21177 of 82] before

the karnataka High Court. In the meanwhile the lands of the

individual owners were purchased by DLF and it got itself

impleaded as respondent in those writ petitions. The said

writ petitions were allowed by a learned Single Judge of the

High Court by his judgment dated April 27, 1987 whereby the

order of the Tribunal dated August 13, 1981 as well as the

orders dated March 27, 1982 passed by the Special Deputy

commissioner were quashed on the view that having regard to

the provision contained in the Karnataka Town & Country

Planning Act, 1961 [hereinafter referred to as "the Planning

Act"] and Section 148 of the Land Revenue Act for a change

in land use for the purpose of establishing a new village or

township or city, as the case may be, the State Government

must first take a decision as to whether a new village or

township or city should be raised in a particular area and

if it decides that in a particular area a new village or

townships or city should be raised it has to issue a

notification declaring that area as the local planning area

for the purpose of the Planning act had to be taken and it

is only on complying with these provisions the permission

for conversion of agricultural lands for non-agricultural

purposes under Section 95 of the Act can be sought and

obtained in the case of establishment of a new township. It

was held that it was held that it is a case where large

tract of agricultural land is being used for raising a new

township and this was a matter which lies within the

exclusive decision of the State Government and it is the

State Government which has to decide and select the area for

location of new village, township or city, as the case may

be.

Writ Appeals Nos. 744-785 of 87 filed against the said

judgment of the learned Single Judge were dismissed by the

Division Bench of the High Court by judgment dated November

28, 1990. Agreeing with the views of the learned Single

Judge the learned Judges held that the State Government must

first take a decision as to whether a new village or

township or city should be raised in a particular area and

if it decides to do so it has to issue a notification

declaring that area as the local planning area and the

necessary steps ought to follow and thereafter a

notification under Section 148(1) of the Land Revenue Act

could be issued and it is only thereafter the question of

converting an agricultural land into non-agricultural

purposes under Section 95 of the Act would arise. The

learned Judges of the Division Bench of the High Court,

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while dismissing the appeals, observed:-

"Our judgment will not come in the

way of the Government independently

considering the matter and coming

to any conclusion on merits."

At the stage it may be mentioned that while the

aforementioned writ petitions were pending before the

learned Single Judge a revised scheme, DLF Arkavati Green

Valley Retreat Scheme, was submitted by DLF before the

Government of Karnataka on December 1, 1984. The original

proposal of the owners of the plots who were seeking

conversion was for construction of 770 farm houses. In the

revised scheme submitted by DLF the proposal was for

developing a garden colony of 270 country type plots of one

acre or more having a villa each. The said revised proposal

was under consideration before the State Government during

the pendency of the writ petitions before the learned Single

Judge and the writ appeals before the Division Bench of the

High Court and the fact that such a revised proposal had

been made by DLF had also been brought to the notice of the

Division Bench of the High Court by DLF by submitting an

application in the writ appeals.

After the decision of the Division Bench of the High

Court dated November 28, 1990 the said revised scheme

submitted by DLf was considered by the State Government in

the Department of Housing and urban Development. The

Karnataka State Pollution Control Board, the Director (Town

Planning) and the Secretary to the Government of Karnataka,

Revenue Department were also asked to examine and furnish

their views on the revised proposal submitted by DLF. The

secretary to the Government of Karnataka, Revenue

Department, referred the matter to the Special Deputy

Commissioner, who, by his letter dated May 10, 1991,

communicated his views as under:-

"in the instant case, the

conversion already given by the

Special Deputy Commissioner,

Bangalore, has been set aside by

the Hon'ble High Court since their

earlier proposal was for

establishing a Township consisting

of nearly 700 sites. The present

revised proposal is for

establishing only 270 villas. This

area is also outside the CDP,

Planning Zone (also not under Green

Belt) and purely from the Revenue

Department point of view I am of

the opinion that there will be no

objection to grant non-agricultural

permission is this case, the

earlier conversion orders will be

reviewed if Government

approve/sanction the revised

proposal."

The Secretary to the Government of Karnataka, Revenue

Department, by his letter dated May 14, 1991 informed the

Department of Housing & Urban Development about the views

referred in the detailed report furnished by the Special

Deputy Commissioner, Bangalore, on May 10, 1991 and

expressed his views as under:-

"Considering all the aspects, the

Revenue Department is of the

opinion that the conversions

already granted shall continue and

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orders if any required in his

regard would be issued immediately

after the decision to permit this

new proposal is totality by the HUD

Dept. is made known to us. I am

sure HUD could be separately

looking into the matters concerning

pollution feared by the BWS&SB."

The Karnataka State Pollution control Board by their

letter dated May 13, 1991, addressed to the Secretary to the

Government of Karnataka Housing & Urban Development,

expressed the view that the revised proposal submitted by

DLF may be approved subject to the conditions as indicated

in the said letter. The Director (Town Planning) in his

letter dated May 17, 1991 sent his note considering the

various aspects. After taking into consideration the views

expressed by the authorities aforementioned the State

Government passed the order dated June 29, 1991 which reads

as under:-

"PROCEEDINGS OF THE GOVERNMENT OF

KARNATAKA

Sub : M/s DLF's Arkavathi Greeen

valley retreat Scheme

Development of 270 sites for

Country Villas - reg.

Read : (i) Proposal dt. 12.8.1985

from M/s DLF Ltd, New Delhi

(ii) Letter dt. 20.8.1991 from

M/s DLF Ltd.

(iii) U.O. Note No. RO 91 LGB

91 Dt. 14.5.1991 from the

Secretary to Government,

Revenue Department.

(iv) Letter No.

TP/AD2/ISSC/Dev/91-92 dt.

17.5.91 from the Director

of Town Planning.

(v) Letter No. BMRAD/EC/31991-

92 dt. 18.5.91 from the

Metropolitan

Commissioner, BMRAD,

Bangalore.

Preamble:- M/s DLF Universal

Limited alongwith its Associated

and Subsidiary Companies have

acquired about 414 acres of land

falling in Survey Numbers

1/6,,1/7,2,4,5,6/1,6/2,7,12,13/2,19

to 69,71 to 81,

83/1,87/4,88,90,91,92/1,92/2,93/1,9

3/2,93/3,109/3 and 109/4 in

Gangennahalli Village, 37/5 in

Kurbubarahalli Village, 7 to 11,

13, and 14 in Varathur Village and

1 to 31 in Varthur Narasimhapura

Village all in Taverekere Hobli,

Bangalore South Taluk, Bangalore

District, on the both sides of

River Arkavathi originally for the

purpose of formation of residential

colony under the name of M/s DLF

Arkavathi Green Valley Retreat

Scheme with Central Sewerage

System. The Bangalore Water Supply

and Sewerage Board vide its letter

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dt. 2.1.85 had suggested to the

Government to examine the entire

matter. In the meanwhile, M/s DLF

Universal Limited has submitted

revised proposal on 12/13.8.85

stating that the new system

involves construction of individual

septic tanks coupled with soil

absorption system with dispersion

trenches and the effluent water

will be used for gardening, etc.

They claim that there would be no

seepage and consequent pollution.

The number of plots will not exceed

270 and they will be utilised for

construction of "Country Villas" by

the buyers of the Sites/plots and

by M/s DLF Universal Limited. The

plots will be approximately one

acre in extent and above and no

further sub-division by way of sale

will be permitted. As against the

previous proposal of Central

sewerage plant for treatment of

effluent, the revised proposal

entails that each country villa

will have septic tank coupled with

soil absorption system. Each septic

tank will cater for 15 users and

the septic tanks will be located at

a minimum distance of 100 meters

away from the river line. apart

from this, the effluent will be

used for gardening in each plot.

Water supply for the colony at 10

lakhs litres per day will be met

from Bore-Wells and open wells. The

garden colony will have extensive

tree plantings which will improve

the ecology of the whole area. The

then hon'ble chief Minister visited

the spot alongwith the then Chief

secretary, Secretary to Chief

Minister and Minister for Housing &

Urban Development Department on

12th August, 1985. Subsequently,

the government had constituted an

expert committee to consider the

matter and also later on the

recommendations of this committee

were forwarded to the Karnataka

State Pollution control Board among

others for views. In the meantime,

the BWSSB had approached the

Hon'ble High Court of Karnataka and

the latter in W.P. No. 19919 to

19954 and 21172 to 21177 of 1982

quashed the order of the Karnataka

Appellate Tribunal order dated

13.8.81, by which the permission

given by the Revenue Department for

conversion from agriculture to non-

agriculture purpose has been upheld

etc., etc. Against this order of

the High Court of Karnataka (Single

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Bench) M/s DLF Universal Ltd. and

others filed Writ appeals before

the Karnataka High Court and the

latter also dismissed these Writ

Appeals. But while doing so, it

expressed the opinion in W.A. No.

744 to 785 of 1987 by order dt.

28.11.1990 that "our judgment will

not come in the way of the

Government independently,

considering the matter and coming

to any conclusion on merits". In

the meantime, the Government in the

Revenue Department, the Director of

Town Planning, BMRDA and the

Karnataka State Pollution Control

Board etc. The Karnataka State

Pollution Board has sent its reply

vide its letter dt. 13.5.1991

stating that the proposal of M/s

DLF and other may be approved

subject to the following

conditions:-

i) Since the area proposed to

be developed is in the

sensitive zone, i.e.,

Catchment area of

Thippagondanahally Reservoir,

all precautions are required

to be taken so that there will

not be any direct or indirect

entry of sewerage effluent to

the reservoir or the river.

ii) The septic tank, soak pit,

dispersion system of each farm

house shall be located

farthest from the boarders of

the reservoir and the river.

iii) The design for the septic

tank, soak pits and dispersion

system shall be submitted to

Karnataka State Pollution

Control Board and approval

obtained before commencement

of building activities.

iv) The sludge from the septic

tank shall be removed

compulsory once in two years,

dried in a separate yard

following scientific method

for which records must be

maintained and produced for

verification by Karnataka

State Pollution Control Board.

v) Pesticides, fungicides and

insecticides should be applied

on the vegetation in the area

in a scientific method as

approved by the Agricultural

Department to avoid

contamination of surface

water.

vi) Peasemeters shall be

positioned at regular

intervals along the reservoir

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of river borders in the

proposed site after getting

the advice from the National

Environmental Engineering

Research Institute, Nagpur for

appropriate monitoring of

contamination of ground water

likely to be leached to either

river or reservoir.

vii) the applicant shall abide

by such other conditions as

prescribed by the Karnataka

State Pollution Control Board

as and when the same are found

necessary.

These recommendations/conditions of

the Karnataka State Pollution

control Board, alongwith the

opinion received from others and

also taking into consideration an

overall view of the entire matter

and the letter dt. 20.5.1991 of M/s

DLF Universal Ltd., the Government

have decided to take the following

decisions in public interest:

Order No. HUD 90 MRI 84,

BANGALORE DATED 29TH JUNE

1991.

A) M/s DLF is hereby directed

to stipulate in each

sale/lease deed (to be

registered), while selling the

plots/country villas that each

buyer of the site/country

villas shall strictly abide by

the pollution control measures

recommended by the Karnataka

State Pollution control Board

as stated above and the latter

will have the right to inspect

and satisfy itself with the

compliance of the measure and

in case of any violation, the

Pollution Control Board shall

take action as per rules

against the violator(s).

B) Government hereby order for

continuance of the permission

given for a conversion by the

Revenue Department in 1979-82

for converting these lands to

non-agricultural purpose

(residential).

C) It is further directed that

any monitoring by peasemeters

may be undertaken directly by

the Karnataka State Pollution

Control Board, and BWSSB,

independently of DLF Universal

Ltd.

D) The DLF Universal Ltd.

would be over a period of time

disposing off all the

sites/country villas and

accordingly the ownership of

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these plots/country villas

will get progressively

transferred to different

individuals. It is, therefore,

directed that all obligations

and restrictions that may be

imposed on M/s DLF Universal

Ltd. by Governmental

authorities will have to

ultimately and progressively

be DLF Universal Ltd. to whom

these plots/country villas

will finally get transferred

by sale/lease deeds.

E) The revised present

proposals dt. 12/13.8.85 for

development of sites not

exceeding 270 numbers for

construction of country villas

by M/s DLF Universal Ltd.

and/or their successors are

only out lines regarding the

layout, the roads and other

facilities. It is directed

that a firm commitment on the

development of sites not

exceeding 270 country villas

will be strictly adhered to by

M/s DLF Universal and their

successors. Therefore, any

modifications to the layout if

found necessary later on,

while executing the civil

works, may be permitted in

consultation with the Town

Planning Authorities, but in

no way sites for 270 country

villas will be exceeded.

BY ORDER AND IN THE NAME OF

THE GOVERNOR OF KARNATAKA

(H.K. SAMPANGIRAMAIAH)

Under Secretary to Government,

Housing & Urban Development

Department."

The said order dated June 29, 1991 was challenged by

the petitioners in the three writ petitions which were filed

by way of public interest litigation on the ground that by

allowing a township to come up on the banks of Arkavati

River by construction of 270 country villas both the quality

and quantity of water in the river and the water reservoir

constructed at Thippagondanahally across the river Arkavati,

which is one of the main sources for supply of water to the

city of bangalore, would be adversely affected which would

be injurious to the interests of the people residing in the

city of Bangalore and that not only there would be depletion

in supply of water but also there is every chance of

pollution of water. The following contentions were urged by

the petitioners in support of their writ petitions before

the High Court:-

(1) The impugned order which directs that permission

for conversion of agricultural lands for non-

agricultural use which were quashed by the High Court

shall continue is high-handed, arbitrary, illegal,

destructive of Rule of Law and also amounts to

committing contempt of the High Court.

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(2) Under the Land Revenue Act the Government had no

power to grant permission for conversion of

agricultural lands for non-agricultural use as that

power under Section 95 thereof is conferred only on the

Deputy Commissioner and therefore the order is without

authority of law.

(3) Though the clear pronouncement of the High Court in

the writ petition filed by the Board and in the writ

appeal arising therefrom was, unless a new township is

established after following the procedure prescribed

under the Land Revenue Act, and the Planning act,

question of exercise of power under Section 95, would

not arise, the Government has passed the impugned order

allowing a new Township and therefore not only it is

violative of the Land Revenue Act but also a clear case

of flouting the decision of the High Court.

(4) The impugned order is totally arbitrary and

violative of Articles 14 and 21 of the Constitution, as

it adversely affect the quality and quantity of

drinking water to the city and it is passed for

collateral consideration, namely, the influence brought

to bear on the Government by the DLF and which would

benefit only the DLF to make profit and a few affluent

individuals to put up country villas which would be at

the cost of the interests of millions of residents of

the city of Bangalore.

(5) Though by the force of Section 79-A and/or Section

79-B of the Land Reforms Act the 414 acres of land has

to be forfeited to Government, the Government has

chosen to pass the impugned order and therefore, it is

illegal.

The first three contentions have found favour with the

learned Judges of the High Court and, accepting the said

contentions, the High Court has set aside the order dated

June 29, 1991 and the said writ petitions have been allowed

by the impugned judgment of the High Court.

Civil Appeals Nos. 4543-4548 of 1992 have been filed by

the State of Karnataka, while Civil Appeals Nos. 456-4548 of

1992 have have been filed by DLF against the said judgment

of the High Court. The State of Karnataka has, however,

filed I.A. NOs. 4-6 seeking permission to withdraw the

appeals. The said applications are allowed and Civil Appeals

Nos. 4543-4545 of 1992 filed by the State are dismissed as

withdrawn.

Shri Kabil Sibal, the learned senior counsel appearing

for DLF, has urged that the High Court was in error in

proceeding on the basis that the revises scheme submitted by

DLF was for establishing a new township and that by order

dated June 29,1991 permission had been granted for

establishment of a new township. It has been urged that

under the revised scheme what is proposed is to construct

about 270 villas over plots measuring one acre or more each

and that the construction of 270 villas on plot of one acre

each cannot be regarded as establishing a township. The

proposed scheme was really a scheme for conversion of

agricultural land for use for non-agricultural purposes,

namely, residential purposes and it was required to be

considered only under Section 95 of the Land Revenue Act and

that the High Court was not right in holding that the State

Government was required to follow the procedure laid down in

Section 4,5 and 6 of the Land Revenue Act. As regards the

exercise of power under Section 95 of the Land Revenue Act,

the submission of Shri Sibal is that one has to look at the

substance of the matter and if it is considered in that

light it would be evident that the matter relating to grant

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of approval for diversion of agricultural land for use other

purposes under Section 95 has been considered by the Special

Deputy Commissioner since, in his communication dated May

10, 1991, addressed to the Secretary, Government of

Karnataka Revenue Department, the Special Deputy

Commissioner had expressed the view that from the revenue

point of view in his opinion there was no objection to grant

of permission for conversion to non-agricultural purposes.

Shri Sibal has contended that although technically speaking

the order for continuing of the permission earlier granted

could not be passed in view of the judgments of the learned

Single Judge of the High Court as well as the Division bench

of the High Court in the earlier writ petitions filed by the

Water Supply and Sewerage Board whereby the orders granting

approval for such conversion had been quashed but, in

substance, the order dated June 29, 1991 is an order for

fresh grant of permission under Section 95 of the Act. In

this context, Shri Sibal has urged that in a public interest

litigation the court examines the substance of the matter

and sees whether the impugned action causes injury to the

larger public interest and that if the order of the State

Government dated June 29, 1991 is examined in that light it

cannot be said that while passing the said order the State

Government has not kept in view the larger public interest.

Shri Sibal has emphasised that before passing the order

dated 29, 1991 the State Government had obtained the views

of the concerned departments, namely, the Revenue

Department, the karnataka State Pollution Control Board and

the Department of Town Planning and while passing the order

the state Government has given due consideration to these

views. Assailing the impugned judgment of the High Court

holding that the proposed scheme would result in depletion

of the available supply of water in Arkavati river and

Thippagondanahally water reservoir, Shri Sibal has submitted

that no water would be taken either from Arkavati river or

from the reservoir and that need of water supply for the

proposed colony would be met by open wells and bore wells on

the plots. As regards the apprehension that the proposed

scheme would result in pollution of the water in the river

or the reservoir, Shri Sibal has submitted that the

Karnataka State Pollution Control Board has laid down

stringent conditions with a view to preventing any

possibility of such pollution and that the order passed by

the State Government requires DLF to fully abide by the

conditions that are imposed by the Karnataka State Pollution

Control Board and the State Government in that regard.

Shri Javeli, the learned senior counsel appearing for

the petitioner-respondents, who had filed the writ petitions

in the High Court, has, however, submitted that the High

Court has rightly quashed the order dated June 29, 1991

passed by the State Government and that the proposed scheme

would result in depletion of availability of water in river

Arkavati and Thippagondanahally reservoir which is the main

source of water supply to the city of Bangalore. In this

connection, Shri Javeli has invited our attention to the

impugned judgment of the High Court wherein it has been

observed that the Water Supply and Sewerage Board, in the

earlier writ petitions had taken the stand that the proposed

scheme would result in depletion of available supply of

water in the reservoir, but in the present case the Water

Supply and Sewerage Board has chosen not to file any reply.

The submission of Shri Javeli is that in the circumstances

the High Court was right in proceeding on the basis that in

the absence of any reply by the Water Supply and Sewerage

Board the earlier position taken by the Water Supply and

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Sewerage Board must be accepted as correct and that the

proposed scheme would result in depletion of available

supply of water for the city of Bangalore. Shri Javeli has

also submitted that the proposed scheme for construction of

villas is bound to create degradation in the environment of

the neighborhood and would also lead to pollution of water

in river Arkavati and Thippagondanhally water reservoir

since the proposed construction would be made quite close to

the river and the reservoir. Shri Javeli has also submitted

that the High Court has rightly held that the proposed

scheme would result in establishment of a township and this

could only be done after following the procedure laid down

in Section 4, 5 and 6 of the Land Revenue Act.

The challenge to the validity of the order dated June

29, 1991 has been made in proceedings which are in the

nature of public interest litigation at the instance of

persons residing in the city of Bangalore who were

apprehensive that the said approval of the scheme would

adversely affect the supply of water to the city and would

also result in pollution of the waters of river Arkavati as

well as Thippagondanahally water reservoir from where the

water is supplied to the city of Bangalore. Having regard to

the nature of the proceedings the matter is required to be

considered in a broad interest perspective. If the matter is

considered in this perspective two questions that arise

are:-

(i) In passing the order date June 29, 1991 giving its

approval to the proposed scheme has the State

Government kept in view the interest of the public in

the matter of pollution of the waters of river Arkavati

and Thippagondanahally water reservoir and the

availability of supply of water to the city of

Bangalore?; and

(ii) If the answer to question No. (i) is in the

affirmative, does the approval of the proposed scheme

by the State Government under order dated June 29, 1991

suffer from an infirmity justifying interference by the

Court in exercise of its power of judicial review ?

In the matter of pollution of the waters the order of

the State Government dated June 29, 1991 takes note that the

revised scheme submitted by DLF involves construction of

individual septic tanks coupled with soil absorption system

with dispersion trenches and that the effluent water will be

used for gardening, etc. Under the scheme each country villa

will have a septic tank coupled with soil absorption system

and each septic tank will cater for 15 users and the septic

tanks will be located at a minimum distance of 100 meters

away from the river line. The order dated June 29, 1991

shows that reference had also been made to the Karnataka

State Pollution Control Board and the said Board, in it

reply vide its letter dated May 13, 1991, had stated that

the proposal of DLF may be approved subject to the

conditions set out in the said letter. In the said

conditions the Pollution Control Board had indicated that

(i) since the area proposed to be developed is in the

sensitive zone, i.e., catchment area of the

Thippagondanahally reservoir, all precautions are

required to be taken so that there will not be any

direct or indirect entry of sewerage effluents to the

reservoir or the river,

(ii) the septic tank, soak pit, dispersion system of

each farm house shall be located farthest from the

borders of the reservoir and the river,

(iii) the design for the septic tank, soak pit and

dispersion shall be submitted to the Pollution Control

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Board and approval obtained before commencement of

building activities,

(iv) the sludge from the septic tank shall be removed

compulsorily once in two years, dried in a separate

yard following scientific method for which records must

be maintained and produced for verification by the

Pollution Control Board,

(v) Pesticides, fungicides and insecticides shall be

applies on the vegetation in the area in a scientific

method as approved by the Agricultural Department to

avoid contamination of surface water, and

(vi) peasemeters be positioned at regular intervals

along with reservoir of river borders in the proposed

site after getting the advice from the National

Environmental Engineering Research Institute, Nagpur

for appropriate monitoring of contamination of ground

water likely to be leached to either river or

reservoir.

The State Government arrived at the decision to grant

approval to the proposed scheme of DLF keeping in view the

said conditions indicated by the karnataka State Pollution

Control Board and in the order dated June 29, 1991 it is

provided that DLF shall stipulate in each sale/lease deed

(to be registered), while selling the plots/country villas,

that each buyer of the site/country villas shall strictly

abide by the pollution control measures recommended by the

Karnataka State Pollution Control Board and that the said

Board will have the right to inspect and satisfy itself with

the compliance of the measures and, in case of any

violation, the said Board shall take action as per rules

against the violator(s). This would show that while granting

permission the State Government has kept in view the danger

of pollution of the waters of river Arkavati and

Thippagondanahally water reservoir and has taken adequate

precautions against the possibility of such pollution by

imposing strict conditions as laid down by the Karnataka

State Pollution control Board in that regard. While granting

approval to the proposed scheme of DLF the State Government

has also directed that any monitoring by peasemeters may be

undertaken directly by the Karnataka State Pollution Control

Board and Water Supply and Sewerage Board independently of

DLF.

As regards depletion in the availability of water for

supply to the city of Bangalore from Thippagondanahally

water reservoir, we find that in the order dated June 29,

1991 the State Government has taken note of the fact that

under the proposed scheme water supply for the colony at 10

lakhs litres per day will be met from bore-wells and open

wells and the garden colony will have extensive tree

plantings which will improve the ecology of the whole area.

Before passing the order reference was made to the Water

Supply and Sewerage Board and the said Board had, in its

letter dated January 2, 1985, left it to the Government to

consider the matter which shows that there was no objection

on the pat of the Water Supply and Sewerage Board to the

proposed scheme on the ground of its having any adverse

effect on the availability of water for supply to the city

of Bangalore. The High Court has, however, pointed out that

in the earlier writ petitions filed by it the Water Supply

and Sewerage Board had filed a statement wherein it was

pointed out that by reason of establishment of a township on

the banks of river Arkavati close to Thippagondanahally

water reservoir water will be polluted and it will also be

depleted as bore-wells are proposed to be drilled in the

area over which new township is proposed and consequently

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the quantity and quality of water supply to the city of

Bangalore would be adversely affected. The High Court has

pointed out that in the present writ petition the Water

Supply and Sewerage Board has not filed any reply and that

the silence on the part of the Water Supply and Sewerage

Board means that the said Board accepts the case put forward

by the petitioners that the proposed scheme would adversely

affect the supply of water. On that view the High Court has

accepted the plea of the petitioners that there is bound to

be depletion of water for supply to the city of Bangalore as

a result of bringing into existence of the new township in

the vicinity of Thippagondanahally water reservoir. In this

context, the High Court has also referred to the report of

the Committee which was constituted by the Government under

the Chairmanship of Shri S. Hanumantha Rao to consider the

feasibility of according permission to the modified plan

wherein reference has been made to the opinion given by the

Water Supply and Sewerage Board in June 1986. In the said

opinion, as extracted in the report of the Committee, the

Water Supply and Sewerage Board had raised an objection

regarding the possibility of pollution of waters of river

Arkavati and Thippagondanahally water reservoir. No

objection appears to have been raised at that time about

depletion in the availability of water for supply to the

city of Bangalore. The views of the Water Supply and

Sewerage Board regarding the possibility of pollution of the

waters of river Arkavati and Thippagondanahally water

reservoir were, however, not accepted by the committed

keeping in view the fact that plots would be not less than

one acre and each plot shall not have more than one house

and the appropriate authorities may insist on correctly

designed septic tanks followed by anaerobic contact filters

and dispersion system like soak pits, absorption trenches

and got complied with. The failure on the part of the Water

supply and Sewerage Board to raise an objection to the

revised scheme on the ground of depletion in the

availability of water for supply to the city of Bangalore

indicates that in view of reduction of density of persons

who would be residing in the area under the revised scheme

the Water Supply and Sewerage Board felt satisfied that

there would be no adverse effect on the availability of

water for supply to the city of Bangalore on account of

construction of 270 villas as per the proposed scheme. The

High Court was, therefore, in error in proceeding on the

basis that since the Water supply and Sewerage Board did not

file its reply to the writ petitions of the petitioner-

respondents, the said Board must be treated to have accepted

as correct the case of the petitioner-respondents that the

proposed scheme would adversely affect the supply of water

to the city of Bangalore from the Thippagondanahally water

reservoir.

It cannot, therefore, be said that in passing the order

dated June 29, 1991 granting approval to the proposed scheme

submitted by DLF the State Government has failed to take

into consideration the matters of public interest raised by

the petitioner-respondents, namely, possibility of pollution

of waters of river Arkavati and Thippagondanahally water

reservoir and the depletion in the availability of water for

supply to the city of Bangalore. The order dated June 29,

1991 shows that it was passed after the State Government had

taken into consideration all the relevant factors and

approval was given to the proposed scheme after the State

Government was satisfied that the proposed scheme will not

affect the availability of water for supply to the city of

Bangalore and had also prevented the possibility of

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pollution of the waters of river Arkavati and

Thippagondanahally water reservoir by laying conditions We

are unable to hold that on the basis of the material on

record the State Government could not reasonably take the

view that the proposed scheme would not affect the

availability of water for supply to the city of Bangalore

and would not result in pollution of the waters of river

Arkavati and Thippagondanahally water reservoir.

We may now examine the legal grounds on the basis of

which the High Court has set aside the order dated June 29,

1991.

The High Court has taken the view that the proposed

scheme is for the establishment of a township and that the

mandatory procedure for declaring/forming a new village as

laid down in Section 6 of the Land Revenue Act which

postulates publication of a notice of the proposal inviting

objections and consideration of any objections to such

proposal. In that regard the High Court has observed:-

"But the fact remains it would be a

new township. Further, as according

to the modified plan, 270 houses

are to be constructed as rightly

pointed out by the learned counsel

for the petitioners. Servants

quarters have to be constructed.

Large number of construction

workers would come in and they

would put up sheds in the vicinity.

In the circumstances, as of

necessity shops, restaurants and

other services would be opened.

Therefore, the stand of the

respondents 1 and 4 no new township

would come into existence is not

true."

The High Court has also pointed out that the words

"Sub: - Formation of Township of DLF Universal Ltd. (DLF

Arkavati Scheme Green Belt)" in the letter of the appellant

dated October 20, 1990 show that the appellant itself was

seeking the approval for establishment of a new township.

The word "township" is not found in any provision of the

Land Revenue Act which only talks of village, town and city.

Village is the smallest unit for the purpose of the Land

Revenue Act. We, therefore, do not consider it necessary to

go into the question whether the proposed scheme is for

establishment of a township.

Section 4 of the Act makes provision for division of

the State into divisions and division into districts. Each

consists of taluks, a taluk consists of circles and a circle

consists of villages. Section 5 empowers the State

Government to alter or add to the limit of any village or to

amalgamate two or more villages or constitute a new village.

Section 6 lays down the procedure for constitution,

abolition, etc., of divisions, districts, taluks, circles of

villages and it provides as under:-

"6. Procedure for constitution,

abolition, etc., of Division,

Districts, Taluks, Circles or

Villages.- Before the publication

of any notification under Section 4

or 5 declaring any area to be a

division, district, taluk, circle

or village or altering the limits

of any division, district, taluk,

circle or village, or abolishing

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any division, district, taluk,

circle or village, the State

Government shall except in cases

where it considers not necessary so

to do publish in the Official

Gazette and in such other manner as

may be prescribed, a notice of the

proposal inviting objections and

shall take into consideration of

any objections to such proposal."

The expression "village" is defined in Section 2(38) of the

Land Revenue Act in these terms:-

"Village" means a local area which

is recognised in the land records

as a village for purposes of

revenue administration and includes

a town or city and all the land

comprised within the limits of a

village, town or city;"

We are unable to uphold that the grant of approval to the

proposed scheme amounts to declaring the said area as a new

village or the alternation of the area of an existing

village. The question whether the colony which comes into

existence under the scheme as proposed is to be declared to

be a new village or is to be included in an existing village

will have to be considered after the development takes place

as proposed in the scheme and at that stage the requirements

of Section 6 of the Land Revenue Act may have to be complied

with. We are, therefore, unable to agree with the view of

the High Court that the State Government was required to

follow the procedure laid down in the Section 6 of the Land

Revenue Act before passing the order dated June 29, 1991

approving the proposed scheme.

As regards diversion of the land from agricultural use

to non-agricultural use for construction of villas, it is

not disputed that under Section 95 of the Land Revenue Act

the power to grant the necessary permission is conferred on

the Deputy Commissioner. The High Court has held that in the

present case the said power was not exercised by the Special

Deputy commissioner but was exercised by the State

Government and that the State Government was not competent

to exercise the said power Section 95. In taking this view

the High Court has failed to note that it was not a case of

diversion of use of an isolated piece of agricultural land

by an individual. This was a case where diversion of sue was

sought in respect of a large number of plots of land. The

matter required examination from various aspects and a

composite view had to be taken after ascertaining the views

of the concerned departments. The State Government alone

could do so and, therefore, the matter was required to be

considered by the State Government. Before taking a decision

on the matter the State Government had obtained the views of

the special Deputy Commissioner with regard to diversion of

use of the lands under Section 95 of the Land Revenue Act,

as well as the Karnataka State Pollution Control Board, the

Director of Town Planning, the Bangalore Metropolitan

Development authority and the Water Supply and Sewerage

Board. After taking into consideration the views of these

departments the order dated June 29, 1991 was passed. Since

the Special Deputy commissioner in his letter dated May 10,

1991, had expressed the opinion that conversion could be

allowed it cannot be said that the Special Deputy

Commissioner has not exercised the power conferred on him

under Section 95 of the Act and the said power has been

exercised by the State Government. The State Government has

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taken note of the views of the Special deputy Commissioner

while considering the matter in the proper perspective. It

cannot, therefore, be said that the order dated June 29,

1991 was not in consonance with the requirements of Section

95 of the Land Revenue Act.

Shri Javeli has, however, urged that since under

Section 49 of the Land Revenue Act an appeal lies against an

order passed by the Special Deputy Commissioner under

Section 95 of the Land Revenue Act and since no specific

order was passed by the Special Deputy Commissioner in the

present case the petitioner-respondents were deprived of

their right to file an appeal against the order regarding

diversion of user of the land. In this context, the

submission of Shri Javeli is further that if the matter had

gone to the Special Deputy Commissioner for passing an order

under Section 95 of the Land Revenue Act the petitioner-

respondents would have had an opportunity of objecting to

the grant of the permission fro conversion and that the said

opportunity had been denied to them. Shri Javeli has invited

our attention to sub-section (3) of Section 95 which

provides as under :-

"Permission to divert may be

refused by the Deputy Commissioner

on the ground that the diversion is

likely to defeat the provision of

any law for the time being in force

or that it is likely to cause a

public nuisance or that it is not

in the interests of the general

public or that the occupant in

unable or unwilling to comply with

the conditions that may be imposed

under sub-section (4)."

In our opinion, the matters referred to in sub-section

(3) of Section 95 are required to be taken into

consideration by the Deputy commissioner while dealing with

an application seeking permission for diversion of use of

agricultural land. But from the provisions contained in sub-

section (3) of Section 95 we are unable to infer a right in

a member of the public who has no special interest in the

matter to file an objection to an application for grant of

permission to divert the use of agricultural land and to

claim an opportunity to appear and oppose the application

before the Deputy Commissioner. In cases where permission to

divert has been granted under Section 95 and any person

feels that the said permission has been granted in violation

of the provisions contained in Section 95(3) of the Act, it

is open to him to challenge the same bu he cannot claim a

right to raise an objection before the Deputy Commissioner

at the stage of consideration of the application for

diversion. The petitioner-respondents have exercised this

right by assailing the permission for diversion before the

High Court. We are, therefore, unable to accept the

submission of Shri Javeli that the procedure that has been

followed in the present case has resulted in denial of any

right conferred on petitioner-respondents.

The High court has also held that an order for

continuation of the permission that had been granted earlier

could not be passed since the earlier order for grant of

permission had been quashed by the High Court in the earlier

writ petitions filed by the Water Supply and Sewerage Board.

Since the earlier permission granted by the Special Deputy

Commissioner had been quashed by the High court an order for

continuance of that permission could not be passed and the

proper course was to pass a fresh order for grant of

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permission for diversion of use under Section 95 of the Act.

But having regard to the fact that the matter has been

considered by the Special Deputy commissioner and in his

letter dated May 10, 1991 he has expressed the opinion that

permission for diversion can be granted the defect in the

order of the State Government dated June 29, 1991 is one

relating to form only and it does not touch the substance of

the matter. The said defect is not such as to call for

interference with the order dated June 29, 1991 in

proceedings instituted by way of public interest litigation

especially when it is found that the said order does not

adversely affect public interest.

For the reasons aforementioned we are unable to uphold

the impugned judgment of the High Court quashing the order

of the State Government dated June 29, 1991 giving its

approval to the proposed scheme of DLF.

In the result, while Civil Appeals Nos. 4543-45 of 1992

filed by the State are dismissed as withdrawn, Civil Appeals

Nos. 4546-48 of 1992 filed by DLF ar allowed. The impugned

judgment of the High Court is set aside and the writ

petitions filed by the petitioner-respondents are dismissed.

No costs.

I.A.Nos. 1-42 in S.L.P. (C) Nos. 10914-55/91

The appellant had filed S.L.P.(C) Nos. 10914-55 of 1991

against the judgment of the Division Bench of the High Court

dated November 28, 1990 in Writ appeals Nos. 744-85 of 1987.

But after the order of the State Government dated June 29,

1991, the appellant sought leave to withdraw the said

special leave petitions and by order dated October 8, 1991

the said special leave petitions were dismissed as

withdrawn. subsequently after the passing of the impugned

judgment of the High Court dated April 24, 1992 the

appellant has filed I.A. Nos. 1-42 in those special leave

petitions wherein it has been prayed that the order dated

October 8, 1991 dismissing S.L.P.(C) Nos. 10914-55 of 1991

as withdrawn may be recalled and reviewed and/or are

modified and that the said special leave petitions may be

restored. Since we are allowing Civil Appeal Nos. 4546-48 of

1992, I.A.Nos. 1-42 in S.L.P(C) Nos. 10914-55 of 1991 do not

survive and the same are, therefore, dismissed.