Monday, September 21, 2009

Shanti Sports Club and another versus Union of India and others

Tenancy Agreement — Transfer of Property Act — Section 53-A — part performance of the contract — appellant entered into tenancy agreement with original owner — contention of appellant that owner entered into another agreement and sold the flat at Rs. 5 lacs to the appellant — entire sale consideration been received by the original owner but sale in term of sale agreement not completed — appellant filed suit for specific performance — trial Court decreed the suit in favour of the LRs of the original owner and directed appellant to handover vacant and peaceful possession of the suit premises — High Court not interfered with the orders in revision — no case for part performance of the contract — no evidence by the appellant to show how it came to the possession of the suit premises — appellant after more than 10 years of the said execution of the alleged agreement for sale asked the owner to complete the sale — doctrine of part performance under Section 53-A cannot be invoked — no material irregularity in the orders of the Courts below — appeal dismissed with no cost.

Judgement:
(Case No: Civil Appeal Nos. 8500-8501 of 2001 With Contempt Petition Nos. 252-253 of 2001)
Shanti Sports Club and another Appellants versus Union of India and others Respondents
Date of Decision(mm/dd/yy): 8/25/2009.
Judge(s): Hon'ble Mr. Justice B.N. Agrawal and Hon'ble Mr. Justice G.S. Singhvi.



 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 9th June, 2000
       To
       Shri Satish Khosla,
       President,
       Shanti Sports Club,
       Shanti Sports Complex,
       Vasant Kung,
       New Delhi-110 070.

       Sub:    De-notification of Shanti Sports Club land comprising 50
              bighas 12 biswas in respect of land bearing Khasra No.
              367/21(1-10), 32 (8-05), 355/33 (3-07), 35 (5-19), 369/36
              (11-14), 37 (8-13), 38 min (7-0) and 354/33 (4-04).

       Sir,

               I am directed to refer to your representation dated
       3.6.99 submitted to this Ministry & representation dated 8.6.99
       enclosed as Annexure to the Writ Petition on the above
       mentioned subject and to say that the matter has been examined
       in consultation with DDA.     The Development on the land has
       taken place after the acquisition of land was completed and
       award was declared. The land has been acquired for the Vasant
       Kunj Residential Project which has been held up due to
       prolonged litigation. Apart from these the Hon'ble High Court
       in CWP No. 1753/80 filed by Shri Amrit Lal Khanna and
       subsequently the Hon'ble Supreme Court have upheld the
       acquisition proceedings in favour of the Government.

       2.      Therefore, it has been decided that your request to
       denotify the above land cannot be acceded as the land is
       required for public purpose. This is for your information.

       3.          This issues with approval of the competent authority.


                                                                   Yours faithfully,
                                                                                Sd/-
                                                                        (R.C. Nayak)
                                                             Under Secretary (DDVA)"



17.         The appellants challenged the aforementioned decision of the

Government in Writ Petition No.3277/2000 mainly on the following

grounds:

  1.        That    on   8th   June,   1999,     the   then    Minister   for     Urban
            Development had taken final decision for de-notification of
            the land and regularization thereof in favour of appellant
            No.1   and   his    successor      could   not    have   overturned   that
        decision.

  2.    The    decision   contained     in   letter      dated    June   9,   2000   is
        totally     devoid    of   reasons   inasmuch     as     while   refusing    to
        release the land in question in favour of appellant No.1, the
        Government did not take into account the fact that a huge
        sports complex had been built by spending substantial amount
        and demolition thereof would be injurious to vast section of
        the people which was benefited by the facilities available in
        the sports complex.

  3.    That similar representations made for release of land were
        entertained and accepted by the Government, but without any
        rhyme and reason, the appellants were discriminated and in
        this manner, their right to equality guaranteed under Article
        14 of the Constitution has been violated.



18.     In the counter affidavit filed on behalf of the Union of

India, it was averred that the alleged transfer of land in favour of

the petitioners is contrary to the provisions of the 1972 Act and

is, therefore, void; that no decision was taken by the then Minister

on 8.6.1999 for release of land covered by the sports complex and

that the representation was finally rejected on 14.7.1999 because

the land was required for public purpose, namely, the `Vasant Kunj

Residential Project'.         On the issue of release of other parcels of

land,   it    was   pleaded   that   each    case   is   decided    on   its   merits

depending on the use to which the land is to be put and various

other factors and release of some land under Section 48(1) of Act

does not create a right in favour of other land owners to seek a

direction for release of their land.
19.         In a    separate counter           affidavit filed       on behalf      of DDA,

details      of    various      litigious      ventures   undertaken         by   the     writ

petitioners, Amrit Lal Khanna and Atma Ram were given and it was

pleaded that the petitioners are not entitled for relief because

they appear to have entered into some transaction with the land

owners in violation of the negative mandate contained in Section 3

of the 1972 Act against transfer of the acquired land and also

because by taking advantage of interim order passed in Writ Petition

No.1753/1980, they raised illegal construction.                        In para 5 of the

counter affidavit it was averred that the construction was made in

clear violation of the existing master plan.                    It was further averred

that even in the master plan of 2001, the permitted use of                         the land

in question is partly residential and partly rural; that residential

portion of the land is to be used for Vasant Kunj Residential Scheme

of DDA, which was held up due to protective orders of injunction

passed by different courts and that in the rural zone, only rural

centre,      public       and   semi   public      facilities,       orchards,      plants,

nurseries,         wireless     and    transmission,          forest    and       extractive

industries and LNP are permitted.




20.         The Division Bench of the High Court heard Writ Petition

No.4777      of    1993    along   with     Writ   Petition     No.3277      of    2000    and

dismissed both the writ petitions after threadbare consideration of

various issues raised by the parties.                  The Division Bench referred

to    the     notings       recorded      in     the   file     in     the    context      of

representations made by the appellants including note dated 8.6.1999

recorded by the then Minister for Urban Development leaving the
matter to his successor and observed:


      "...........We fail to appreciate the argument advanced on
      behalf of the petitioners that the then Minister had taken
      a final decision to regularise and denotify the land in
      favour of the petitioners.          Assuming for the sake of
      argument that on June 3, 1999 and June 8, 1999 a decision
      to denotify and regularize the land was taken by the then
      Minister for Urban Development, it seems to us that such a
      decision will be of no consequence and will have no
      existence in the eye of law. This is so because the terms
      for denotification and regularization were not settled.
      Settlement, if any, was left for the future. In the event
      of the parties failing to reach a settlement there would
      be no occasion to withdraw from acquisition of the land
      and to regularize the same in favour of the petitioners.
      We also fail to appreciate as to how it can be argued that
      though the terms for regularization were still to be
      settled, the decision to regularise the land in favour of
      the first petitioner was taken by Sh. Ram Jethmalani. The
      argument advanced on behalf of the petitioners, therefore,
      is fallacious and is hereby rejected.            Besides, the
      withdrawal        from  acquisition  of  any  land   of  which
      possession has not been taken is governed by section 48 of
      the Act.         Undoubtedly, section 48 vests power in the
      Government to withdraw from acquisition except in the case
      provided for in section 36 thereof.        But withdrawal from
      acquisition must necessarily be by a notification under
      sub-section (1) of section 48 of the Act published in the
      official gazette."



21.     The Division Bench held that the construction made over the

acquired land has to be treated as unauthorised because the same was

raised in violation of various statutory provisions.                  The Division

Bench then referred to master plan, 2001 in which land use of the

area in question was shown partly residential and partly rural and

observed   that   use      of   the     land    by    the    petitioner-club   for

recreational purposes is unauthorized.               The Division Bench observed

that if the land is regularised in favour of the petitioner-club,

then the land use will have to be first changed from rural to

recreational   and   for    that      purpose   master      plan   would   require
amendment in accordance with Section 11(A) of the Delhi 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 21st century, the menace of illegal and unauthorized

constructions and encroachments has acquired monstrous proportions

and everyone has been paying heavy price for the same.                           Economically

affluent     people   and    those       having     support     of   the    political       and

executive      apparatus     of      the    State      have    constructed         buildings,

commercial complexes, multiplexes, malls etc. in blatant violation

of   the     municipal    and     town     planning     laws,    master      plans,       zonal

development plans and even the sanctioned building plans.                            In most

of the cases of illegal or unauthorized constructions, the officers

of the municipal and other regulatory bodies turn blind eye either

due to the influence of higher functionaries of the State or other

extraneous reasons.         Those who construct buildings in violation of

the relevant statutory provisions, master plan etc. and those who

directly or indirectly abet such violations are totally unmindful of
the grave consequences of their actions and/or omissions on the

present as well as future generations of the country which will be

forced to live in unplanned cities and urban areas.                           The people

belonging to this class do not realize that the constructions made

in violation of the relevant laws, master plan or zonal development

plan or      sanctioned building plan or the building is used for a

purpose other than the one specified in the relevant statute or the

master plan etc., such constructions put unbearable burden on the

public facilities/amenities like water, electricity, sewerage etc.

apart from creating chaos on the roads.                   The pollution caused due to

traffic   congestion       affects    the       health    of   the   road   users.      The

pedestrians and people belonging to weaker sections of the society,

who cannot afford the luxury of air-conditioned cars, are the worst

victims of pollution.          They suffer from skin diseases of different

types, asthma, allergies and even more dreaded diseases like cancer.

It can only be a matter of imagination how much the government has

to spend on the treatment of such persons and also for controlling

pollution    and     adverse   impact      on    the     environment   due   to   traffic

congestion      on   the   roads     and   chaotic       conditions    created    due   to

illegal and unauthorized constructions. This Court has, from time to

time,   taken    cognizance     of    buildings        constructed     in   violation    of

municipal and other laws and emphasized that no compromise should be

made with the town planning scheme and no relief should be given to

the violator of the town planning scheme etc. on the ground that he

has spent substantial amount on construction of the buildings etc. -

K. Ramdas Shenoy v. Chief Officers, Town Municipal Council, Udipi

1974 (2) SCC 506, Dr. G.N. Khajuria v. Delhi Development Authority
1995 (5) SCC 762, M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu 1999

(6) SCC 464, Friends Colony Development Committee v. State of Orissa

2004 (8) SCC 733, M.C. Mehta v. Union of India 2006 (3) SCC 399 and

S.N. Chandrasekhar v. State of Karnataka 2006 (3) SCC 208.



53.       Unfortunately, despite repeated judgments by the this Court

and High Courts, the builders and other affluent people engaged in

the construction activities, who have, over the years shown scant

respect   for   regulatory    mechanism       envisaged   in   the    municipal   and

other similar laws, as also the master plans, zonal development

plans,    sanctioned    plans   etc.,     have    received      encouragement     and

support from the State apparatus.                As and when the courts have

passed orders or the officers of local and other bodies have taken

action for ensuring rigorous compliance of laws relating to planned

development of the cities and urban areas and issued directions for

demolition of the illegal/unauthorized constructions, those in power

have come    forward   to    protect    the    wrong   doers   either    by   issuing

administrative orders or enacting laws for regularization of illegal

and   unauthorized     constructions      in    the    name    of    compassion   and

hardship.    Such actions have done irreparable harm to the concept of

planned development of the cities and urban areas.                   It is high time

that the executive and political apparatus of the State take serious

view of the menace of illegal and unauthorized constructions and

stop their support to the lobbies of affluent class of builders and

others, else even the rural areas of the country will soon witness

similar chaotic conditions.
54.         In   the   result,        the   appeals   are    dismissed.       However,      by

taking      note of the submission made by Shri Mukul Rohtagi that some

time may be given to his clients to vacate the land, we deem it

proper to grant thee months' time to the appellants to handover

possession of the land to the concerned authority of DDA.                           This will

be subject to the condition that within two weeks from today an

affidavit is filed on behalf of the appellants by an authorised

person that possession of the land will be handed over to DDA by 30 th

November, 2009 and during this period no encumbrances whatsoever

will   be    created      by    the    appellants     or    their   agents    and    that   no

compensation       will    be    claimed      for   the    construction      already    made.

Needless to say that if the required undertaking is not filed, the

concerned authorities of DDA shall be entitled to take possession of

the land and, if necessary, take police help for that purpose.




Contempt Petition Nos. 252-253 of 2001



55.         We have    dismissed the          civil appeals         by the    above order.

Hence, the contempt petitions are dismissed.



                                                     ......................J.
                                             [B.N. AGRAWAL]



                                                     ......................J.
                                             [G.S. SINGHVI]
New Delhi
August 25, 2009.
 



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