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PETITIONER: DELHI DEVELOPMENT AUTHORITY

       Vs.

RESPONDENT: DELHI CLOTH MILLS LTD. AND ORS.

DATE OF JUDGMENT01/05/1991

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. MISRA, RANGNATH (CJ) AGRAWAL, S.C. (J)

CITATION:  1991 SCR  (2) 590        1991 SCC  (3) 277  JT 1991 (2)   374        1991 SCALE  (1)839

ACT:      Delhi Cloth Mills-Scheme for redevelopment of the mills area-Supreme  Court’s  direction to  the  Delhi  Development Authority  to  grant  conditional  approval  to  the  scheme subject  to  removal of objections raised by  the  Municipal Corporation  of Delhi and the Delhi  Development  Authority- Objections  by DDA-Validity  of-Directions given by  Supreme Court.

HEADNOTE:      By an order dated 13.3.1990 the Supreme Court  directed the   Delhi   Development  Authority   (D.D.A.)   to   grant conditional  approval to the  respondent-Company’s  (D.C.M.) scheme pertaining to the development of mills land measuring 63   acres  for  construction  of  flatted   factories   and residential complex subject to removal of objections  raised by  Municipal  Corporation of Delhi  and  Delhi  Development Authority.  The matter could not be finalised by the parties since the DDA took certain objections to the scheme:(a) that the  Delhi Cloth Mills should file a modified plan so as  to conform  to the Master Plan of the year 2001; (b) the  legal proceedings  before  the High Court and  the  Supreme  Court proceeded  on the wrong assumption that the entire 63  acres of  land was owned by the Delhi Cloth Mills whereas the  DCM owns  only 52 acres of land while the balance 11  acres  was owned  by  the DDA which is partly on lease  and  partly  in trespass  with the Delhi Cloth Mills; and (c) the  grant  of permission  by  the  DDA vide its resolution  No.  26  dated 1.2.83  does  not ipso facto mean that it had given  up  its rights  or  title  to the lease hold lands or  that  it  had regularised the  possession of the trespassed upon land with the   Delhi  Cloth  Mills.   The  respondent-Company   filed applications for direction in this Court.      Disposing the applications, this Court,      HELD:  1.  The D.D.A. stands directed by this Court  to grant  to the D.C.M. approval, even though conditional,  and the  D.C.M. stands impliedly directed and is duty  bound  to remove  the objections raised by the D.D.A. This  Court  had endorsed by means of this directive the already known  views of the Delhi High Court towards restoring resolu-                                                        591

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tion  of  the  D.D.A. dated February 1,  1983,  whereby  the scheme  as  given by the Delhi Cloth Mills was  approved  in terms thereof.  The approval came from the D.D.A. at a  time when the Master Plan of the year 1962 was operative and  the one  of  the  year  2001 was not existent,  and  if  at  all existent  in  an  embryonic stage.  The  law  governing  the subject  and  the rules and regulations then  in  vogue  and applicable  were deemingly kept in view and applied  by  the D.D.A.  in the approval of the scheme.  To whittle down  the effect of that resolution on the emergence of the new Master Plan  of the year 2001, made applicable after the orders  of this Court would, at the present stage, if insisted upon  be spelled out as a step to undermine the orders of this Court. Such  an objection by the D.D.A. when  raised  before  March 13,  1990,  the  day  when  the  Supreme  Court  passed  its judgment,  was untenable in law and the D.D.A.  should  have known it before putting such on objection to use. Therefore, the  first  objection of the D.D.A. is repelled  and  it  is directed  to  stick to the position as per  Master  Plan  as existing on February 1. 1983. [594 D-G]      2. The objection of the D.D.A. with regard to the wrong impression   of   the  ownership  of  the  land   is   valid substantially.  It is the admitted case of the parties  that the  scheme  pertains to 63 acres of land  which  the  Delhi Cloth  Mills while applying for sanction claimed to own  and one  of the considerations in passing the  resolution  dated February 1,1983 ex facie was the D.D.A. being impressed by a private entrepreneur coming forward with a scheme with  such a large chunk of land.  The D.D.A. when engaged in examining and sanctioning the proposal was justified on proceeding  on the  supposition of facts given by the Delhi Cloth Mills  as true,  and  in processing the same cannot be  said  to  have surrendered  its  ownership  rights qua  land  measuring  11 acres.    It  cannot  be  assumed  that  by  upholding   the resolution dated February 1, 1983, the Delhi High Court,  or Supreme  Court,  had acknowledged Delhi Cloth Mills  as  the owner  of 63 acress of land involved in the scheme  or  that the right of ownership of the D.D.A. over about 11 acres  of land  stood extinguished by such exercise.   Therefore,  the said resolution cannot trample the rights of D.D.A. as owner over 11 acres of land when the respective leases reserve  to the D.D.A. the right of resumption, and in lease expiring by efflux of time the option not to renew.  The scheme approved must  thus  of  necessity be denoted to that  effect  as  the objection of the D.D.A. in that regard and to that extent is valid  and  tenable.  But the Delhi Cloth  Mills  can  still steer through its project in its owned 52 acres, even though in a truncated form and submit an amended plan.  The  scheme in the modified form would have to be brought in, not a  new but as a substitute for the original scheme and that  scheme would register its birth, legitimacy and binding force as of the original                                                        592 scheme.[594H, 595 A-D, E-F, 597 F, 598 D]      3. Respondent-Company’s relationship with the D.D.A. is that  of  a  lessee and lessor.  Out of  10  leases  one  is perpetual  in  nature  and the remaining  leases  are  short durated.  Under the terms of the perpetual lease unless  the D.D.A.  grants approval to the change of user as  asked  and reconstruction,  the  Delhi Cloth Mills has no  such  deemed right  or privilege ignoring the covenants and the terms  of the   lease.    Therefore,  it  cannot  be  said  that   the resolution  has  the automatic effect of the  D.D.A.  having granted change of user, consciously or impliedly, or vesting any right in that regard to the Delhi Cloth Mills. [597 D-F,

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596 E]

JUDGMENT:      CIVIL APPELLATE JURISDICTION: I.A. Nos.  4,5,6 and 7 in Civil Appeal Nos. 1401 & 1402 of 1990.      From  the  Judgment and Order dated  22.5.1987  of  the Delhi High Court in C.W.P No.  2687 of 1986.      Kapil  Sibal,  V.B.  Saharya and R.K.  Khanna  for  the Appellant.      Rajiv Sawhney, Sanjay Anand, Deepak Kumar Thakur,  Mrs. Ameeta Rathore, Kapil Chandra for J.B. Dadachanji & Co.  and R.K. Maheshwari for the Respondents.      The following Order of the Court was delivered:      PUNCHHI,  J. These are applications for  directions  in Civil  Appeal  Nos. 1401 and 1402 of 1990 decided by  us  on March 13, 1990.      For  facility  of fact situation resort be had  to  our judgment  dated  March 13, 1990. Direction given by  to  the D.D.A  was meaningful and clear that it shall grant  to  the Delhi  Cloth  Mills  conditional  approval  subject  to  the removal  of the objections enumerated and extracted  in  the judgment,  as  raised,  or such of them as  were  valid  and tenable in law, after the Delhi Cloth Mills is heard by  the Municipal   Corporation   of  Delhi,  the  author   of   the objections, and which the D.D.A. had adopted, and the matter to be formalised forthwith by the D.D.A. and the authorities connected therewith within a time frame. This has reportedly met  with  hurdles necessitating  these  applications.   The objections may broadly be divided in three parts:          (i)  objections  which  are  within  the  exclusive          domain of the Municipal Corporation of Delhi                                                        593          (ii)  objections which are exclusively  within  the          domain of the D.D.A.; and          (iii)  objections  which are  lendingly  common  to          both,  the D.D.A. and the Municipal Corporation  of          Delhi overseeing and safeguarding the interests  of          each other. And these objections can also be divided as surmountable and insurmountable.      The  objections,  to  begin  with,  as  raised  by  the Municipal  Corporation  of Delhi and later  adopted  by  the D.D.A., presently requiring smoothening before us relate  to those  which are within the exclusive domain of  the  D.D.A. for  it is asserted by the applicant Delhi Cloth Mills  that the  objections  relating to the  Municipal  Corporation  of Delhi are not insurmountable and those can for the  present, be  left  alone to be tackled by the applicant  without  the intervention  of  the Court.  For this  reason  neither  any direction is asked at this stage nor is one necessary to the Municipal Corporation of Delhi.          The D.D.A. has broadly three objections:          (i) To further the resolution of the D.D.A.,  dated          February 1, 1983, the Delhi Cloth Mills should file          an amended or modified plan so as to conform to the          Master Plan of the year 2001;          (ii) Since the matter before the Delhi High  Court,          as  also  in  this  Court,  had  proceeded  on  the          assumption  that  the  entire  63  acres  of   land          involved   in   the  re-development   for   flatted          factories and residential complex was owned by  the          Delhi Cloth Mills, which assumption was wrong,  the          Delhi Cloth Mills should confine its plan to  about

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        52  acres  of land as owned by it  as  the  balance          about 11 acres of land is owned by the D.D.A. which          is  either on varied termed leases or  in  trespass          with the Delhi Cloth Mills.  The plan would require          rectification accordingly; and          (iii)   The  fact  of  grant  of  permission   vide          resolution of 1-2-1983 did not ipso facto mean that          the  D.D.A. had given up its rights on  lease  hold          lands  in accordance with the terms thereof or  the          tittle  to  it or to regularize possession  of  the          trespassed upon land with the Delhi Cloth Mills.                                                        594 On  that  basis it is required of the Delhi Cloth  Mills  to confine  its plans within those 52 acres as owned by it  and by a process of reasoning it is hinted that after  providing for recreational and other necessary facilities, as required by  law, there hardly would remain any land to  further  the project.      It  has  been maintained on behalf of the  Delhi  Cloth Mills  that  the  posture of the D.D.A.  is  obstructive  in nature  and a step to flout or undermine the orders of  this Court.   It has on the other hand been maintained on  behalf of the retrenched workers that since the settlement  arrived at by them with the Delhi Cloth Mills was beneficial to them in  nature, as a price for closure of the Mill, the  posture of the D.D.A. was indirectly against their interests.   They have  prayed  for suitable directions so that  the  benefits accruing to them by lapse of time may not go dry.      At the outset, we put it beyond any doubt and re-affirm that  the D.D.A. stands directed by this Court to  grant  to the D.C.M. approval, even though conditional, and the D.C.M. stands  impliedly directed and is duty bound to  remove  the objections as were valid and tenable in law as raised by the D.D.A. within its domain.  Having gone thus far there is  no retreat of it contemplated.  It is further to be  understood that this Court had endorsed by means of this directive  the already  known  views  of  the  Delhi  High  Court   towards restoring  resolution of the D.D.A. dated February 1,  1983, whereby  the  scheme as given by the Delhi Cloth  Mills  was approved in terms thereof.  And obviously the approval  came from  the D.D.A. at a time when the Master Plan of the  year 1962  was  operative and the one of the year  2001  was  not existant, and if at all existant in an embryonic stage.  The law governing the object and the rules and regulations  then in  vogue  and applicable were deemingly kept  in  view  and applied  by  the D.D.A. in the approval of the  scheme.   To whittle down the effect of that resolution on the  emergence of  the  new Master Plan of the year 2001,  made  applicable after the orders of this Court would, at the present  stage, if  insisted upon be spelled out as a step to undermine  the orders of this Court.  Such an objection by the D.D.A.  when raised  before  March  13,  1990, the  day  when  we  passed judgment,  was untenable in law and the D.D.A.  should  have known it before putting such an objection to use.  For  this reason,  we  repel  the first objection of  the  D.D.A.  and require of it to stick to the position as per Master Plan as existing  on  February  1, 1983.   This  objection  is  thus surmounted.      The  second objection of the D.D.A. with regard to  the wrong                                                        595 impression of the ownership of the land appears to us to  be valid substantially. It is the admitted case of the  parties that the scheme pertains to 63 acres of land which the Delhi Cloth  Mills while applying for sanction claimed to own  and

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one  of the considerations in passing the  resolution  dated February 1,  1983 ex facie was the D.D.A. being impressed by a  private  entrepreneur coming forward with a  scheme  with such a large chunk of land.  It is significant that  nowhere at  that  stage, even remotely, or at any stage  during  the litigation  before the Delhi High Court or this  Court,  was the Delhi Cloth Mill’s claim of owning 63 acres of land been given  a  serious  thought or refuted or  put  to  proof  or testing.  One way of looking at it now can be that the Delhi Cloth  Mills  misled the D.D.A. in that regard and  had  the D.D.A. known that the Delhi Cloth Mills owned only about  52 acres  of land the D.D.A. might have  resolved  differently. The other view as suggested by the Delhi Cloth Mills is that the D.D.A. of its own should have counter checked the extent of the ownership of the land of the Delhi Cloth Mills at the time  of granting sanction.  Learned counsel on  both  sides have dwelt upon this matter a great deal.  We cannot  assume that  by  upholding resolution dated  February  1,1983,  the Delhi High Court, or for that matter this Court, had made or acknowledged  Delhi Cloth Mills as the owner of 63 acres  of land  involved in the scheme or that the right of  ownership of the D.D.A. over about 11 acres of land stood extinguished by such exercise.  The D.D.A. when engaged in examining  and sanctioning the proposal was justified on proceedings on the supposition of facts given by the Delhi Cloth Mills as true, and   in  processing  the  same  cannot  be  said  to   have surrendered  its  ownership  rights qua  land  measuring  11 acres.  Thus we are clear in arriving at the view  that  the said resolution cannot trample the right of D.D.A. as  owner over  about  11  acres of land when  the  respective  leases reserve to the D.D.A. the right of resumption, and in leases expiring  by  efflux of time the option not to  renew.   The scheme  approved  must thus of necessity be dented  to  that effect as the objection of the D.D.A. in that regard and  to that extent is valid and tenable.      Reservation  in that regard appears also to  have  been made  by the Delhi High Court in its judgment in C.W.P.  No. 1281  of 1985 decided on July 22,1988.  While  dealing  with possibility of a law and order problem, the court relied  on the  Delhi  Cloth  Mill’s  management’s  affidavit   towards granting  statutory compensation to the workers as  well  as its   undertaking   to  pay,  in  some   event,   additional compensation.   The Delhi Cloth Mills had in  the  affidavit stated that the additional compensation shall be payable  on expiry  of two years from the date the Delhi Cloth Mills  is allowed by all the concerned authorities                                                        596 including  the D.D.A. and Municipal Corporation of Delhi  to redevelop its entire 63 acres of land at Bara Hindu Rao  and Krishan  Ganj,  in  accordance  with  the  user   stipulated therefore  under the Master Plan for Delhi  dated  September 1962.   The  High Court in judging the stand  taken  by  the delhi   Cloth   Mills   made   the   following   significant observations:          "No   assurance  is  extended  by   any   competent          authority to the workmen that the authorities shall          not enforce the Master Plan or shall not insist for          due compliance of the provisions of the Act and the          regulations in the matter of the Mill.  It is  also          doubtful if any one could opt out of the  statutory          provisions." These  observations make it clear that the D.D.A. cannot  be said to have abandoned its right either as a statutory  body or  that of the lessor of land on leases held by  the  Delhi Cloth  Mills  by  mere  passing  of  the  resolution  afore-

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mentioned, or correspondingly to have given any right to the workers.      We  have  been  given  the break  up  of  those  leases numbering 10.  One of them pertains to 36425 sq. yards(about 7 acres) which is perpetual in nature and is not required to be renewed except that the rent is revisable after every  25 years.   The  remaining  leases  are  in  comparison   short durated, some of which  have expired and others are expiring in  the  year 2001.  The unexpired period of leases  is  not long enough in the context of the project.  besides there is an  area  which is said to be trespassed upon by  the  Delhi Cloth  Mills.  this area under durated leases  and  trespass totals  about  4  acres.  the Delhi Cloth  Mills  cannot  be permitted  to lay hands on this area as of right to  further the  scheme.  there a common term in each  respective  lease reserving right to the lessor to determine the lease at  any time  if  the  land  is  required  for  public  purpose   in consideration  of the land having been demised free  of  any premium.   To involve this four acres of land in the  scheme the  D.C.M may have to work it out under a  different  shade and premise and not from this Court.  The objection is  thus insurmountable on this plain.      So far as the perpetual lease is concerned, its purpose covenants   for  residential,  cultural   and   recreational purposes  of  staff and workers of the lessee  and  purposes ancillary   thereto,  in  accordance  with  the  rules   and regulations in force in Delhi under the Municipality Act  or any bye-laws framed by the lessor.  It is further covenanted that for                                                        597 purposes  of  construction of building the  approval of  the lessor  in writing is a pre-condition  before the  start  of the  construction, and further no alteration or addition  in the building as approved by the lessor either externally  or internally   can  be  made  without  first   obtaining   the permission of the lessor in writing.  Besides that if during the  period  of  lease,  it  is  certified  by  the  Central Government  that the premises are required for the  purposes of  the Central Government or any other public purpose,  the lessor  shall  be entitled to take possession  of  the  land together  with  all building structures  etc.  with  certain consequences.  It is thus plain and evident that even in the case  of perpetual lease enormous residual control  is  left with the lessor who alone can accord permission to construct building for the specified purpose for residential, cultural and  recreational  purpose of the staff and workers  of  the Mill  and purposes ancillary thereto, and on frustration  of such  purpose  has the further right to treat the  lease  to have  become void if the land is used for any purpose  other than for which the lease was granted, not being the  purpose subsequently approved by the lessor.  Thus unless the D.D.A. grants  approval  to  the  change  of  user  as  asked   and reconstruction,  the  Delhi Cloth Mills has no  such  deemed right  or privilege ignoring the covenants and the terms  of the lease.  Thus it cannot be suggested that the  resolution afore-mentioned  has  the  automatic effect  of  the  D.D.A. having granted change of user, consciously or impliedly,  or vesting  any right in that regard to the Delhi Cloth  Mills. Here  as  well the D.C.M. would have to work out  its  plans with  the  D.D.A. under the terms of the lease  without  any further  mandate  from  this Court  in  this  regard.   This objection also is insurmountable in the presence of the void clause.      Yet all is not lost for the Delhi Cloth Mills.  It  can still steer through its project in its owned 52 acres,  even

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though  in a truncated from and submit an amended plan.   On the  other hand its relationship with the D.D.A. being  that of a lessee and lessor permits a meaningful dialogue seeking extensions  of lease periods, and change of permissive  user in  respect  of 11 acres of land.  It  can  make  attractive suggestions   to  the  D.D.A.  for  setting   up   cultural, educational,  recreational and other facilities etc. at  the expense  of  the  Delhi Cloth Mills, if the  project  is  to remain  of the 63 acre size.  It is the case of Delhi  Cloth Mills that if it is allowed to involve the said 11 acres  of land, the project would be better and it is prepared to  pay any  charges as are known to law to keep it as part  of  the project  of the original size.  Be that as it may we are  no experts  to  opine whether a 52 acre project would  be  more viable  or better or a 63 acre one.  But since  the  project has in terms of our order dated March 13, 1990 to go on, the D.D.A.                                                        598 may  if asked examine the suggestions.  That is their  field and not ours to decide.      Before concluding this Order, we cannot help  remarking that  both parties, i.e., the D.C.M. and the D.D.A. have  to share  mutually  the blame for the present  situation.   The D.C.M.  for its cavalier away in having asserted to  own  63 acres of land and the D.D.A. in casually, without consulting its records, passing its Resolution No. 26 dated February 1, 1983 and communicating the same to the D.C.M. on  31-3-1983. Should the D.C.M. now confine its scheme and project to  its owned  52  acres  of land, abandoning  any  effort  to  have included  the  remaining D.D.A. owned 11 acres  of  land  by negotiations, and the D.D.A. in not offering on its own,  or otherwise,  the  said  land to the D.C.M.,  the  project  as originally  conceived  would  have to  be  spruced.   It  is evident  from the proceedings of the Resolution that as  per Master  Plan,  23.14 acres have been earmarked  for  flatted factories  and  43.39 acres as residential, though  the  sum total goes to more than 63 acres.  Both these areas  include areas  set  apart for facilities  and  amenities  enumerated therein.   The respective areas in that event would have  to be reduced keeping in view the ground realities of ownership and the earmarking in the Master plan.  Cuts inevitably  may have  to be employed in either area or both.  Be that as  it may,  the  scheme  in the modified from  would  have  to  be brought  in, not a new but as a substitute for the  original scheme and that scheme would register its birth,  legitimacy and  binding force as of the original scheme.   The  mandate in  this regard should be clearly understood by the  parties concerned for they are under obligation to responsibly carry out  the directions of this Court dated March 13,  1990,  in all events, and share the burden of it, indeed as doing  the blame.      With   these  observations,  these   applications   are disposed of. No Costs. T.N.A.                             Applications disposed of.                                                        599