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 the

terms 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 9

th

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 8

th

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 Development

Act, 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 the

appellants 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 is

sought 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 postulates

publication 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 held

that 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 the

factum 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 may

be, 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 or

even 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 the

Constitution 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 21

st

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.