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

       Vs.

RESPONDENT: PROF.A.LAKSHMI SAGAR & ORS.

DATE OF JUDGMENT:       02/09/1998

BENCH: S.C. AGRAWAL, A.P. MISRA

ACT:

HEADNOTE:

JUDGMENT:             [With Civil appeals Nos. 4546-45/92             and I.A Nos 1-42 in S.L.P.(C) No. 10914-             55 of 1991]                       J U D G M E N T S.C. AGRAWAL, J. Civil Appeals  Nos.4546-48/92 and  Civil Appeals  No.  4543- 45/1992      These appeals  arise out  of three writ petitions filed by way  of public  interest litigation in the Karnataka High Court to  challenge the  order dated June 29, 1991 passed by the Government  of Karnataka  approving the scheme framed by M/s  D.L.F.   Universal  Limited   [for  short   "DLF]   for development of  270 sites  for country  villas in Tavarekere Hobli, Bangalore  South Taluk,  Bangalore District.  By  its judgment dated April 24, 1992 the High Court, while allowing the said  writ petitions has set aside the said order of the State Government dated June 29, 1991.      During  the   period  1972-76,  forty-two  serving  and retired members  of the  Indian defence  Forces individually purchased lands  admeasuring about 414 acres in Magadi Taluk of Bangalore  Rural District.  The  owners  of  these  lands formed themselves  into a  cooperative society  called  "the Arkavati   Progressive    Farmers    Cooperative    Society" [hereinafter referred  to as  ‘the Cooperative Society"]. In 1979 the  said land owners submitted applications before the Special Deputy  Commissioner, Bangalore  Rural District, for permission  to   divert  their   lands  to  non-agricultural purposes under Section 95 of the Karnataka Land Revenue Act, 1964 [hereinafter  referred to  as "the  Land Revenue Act"]. The Special  Deputy commissioner,  after obtaining the views of the  Director (Town Planning), passed orders in May, June and July  1979 in some of those cases according sanction for diversion      of       the       lands       for       non- agricultural/industrial/residential purposes  subject to the conditions mentioned  in those  orders. In  other cases  the Special Deputy  commissioner either  did not communicate the order rejecting  the request  for permission or did not pass any kind  of order for a period of four months from the date of application  filed by  the  different  holders  with  the result that  in all  such cases permission sought was deemed

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to have been granted under Section 95(5) of the Land Revenue Act.  The   Bangalore  Water   Supply  and   Sewerage  Board [hereinafter referred  to as  "the Water Supply and sewerage Board"] filed  appeals against the said orders/deemed orders of the  special Deputy  commissioner  before  the  Karnataka Appellate  Tribunal   [hereinafter  referred   to  as   "the Tribunal"] under  section 49  of the  Act.  The said appeals were dismissed  by the Tribunal by its judgment dated August 13, 1981.  After the  passing  of  the  said  order  of  the Tribunal dated August 13, 1981 the owners whose applications had been  rejected earlier and those who did not receive the orders on  their  applications  regarding  conversion  filed fresh applications  before the  Special Deputy  commissioner and the  Special Commissioner  by his orders dated March 27, 1982 granted  permission for  conversion under Section 95 to those  applicants   also.  Feeling  aggrieved  by  the  said judgment of  the Tribunal  as well as the orders dated March 27, 1982  passed by  the Special  Deputy  Commissioner,  the Water  Supply   and  Sewerage   Board  filed  writ  petition [W.P.Nos. 19919-19954  of 82  and 21172-21177  of 82] before the karnataka  High Court. In the meanwhile the lands of the individual owners  were purchased  by DLF  and it got itself impleaded as  respondent in  those writ  petitions. The said writ petitions were allowed by a learned Single Judge of the High Court  by his judgment dated April 27, 1987 whereby the order of  the Tribunal  dated August 13, 1981 as well as the orders dated  March 27,  1982 passed  by the  Special Deputy commissioner were  quashed on the view that having regard to the provision  contained in  the Karnataka  Town  &  Country Planning Act, 1961 [hereinafter referred to as "the Planning Act"] and  Section 148  of the Land Revenue Act for a change in land use for the purpose of establishing a new village or township or  city, as  the case may be, the State Government must first  take a  decision as  to whether a new village or township or  city should  be raised in a particular area and if it  decides that  in a  particular area  a new village or townships or  city should  be  raised  it  has  to  issue  a notification declaring  that area as the local planning area for the  purpose of  the Planning act had to be taken and it is only  on complying  with these  provisions the permission for conversion  of agricultural  lands for  non-agricultural purposes under  Section 95  of the  Act can  be  sought  and obtained in  the case of establishment of a new township. It was held  that it  was held  that it  is a  case where large tract of  agricultural land  is being used for raising a new township and  this  was  a  matter  which  lies  within  the exclusive decision  of the  State Government  and it  is the State Government which has to decide and select the area for location of  new village,  township or city, as the case may be.      Writ Appeals  Nos. 744-785 of 87 filed against the said judgment of  the learned  Single Judge were dismissed by the Division Bench  of the High Court by judgment dated November 28, 1990.  Agreeing with  the views  of the  learned  Single Judge the learned Judges held that the State Government must first take  a decision  as  to  whether  a  new  village  or township or  city should  be raised in a particular area and if it  decides to  do so  it has  to  issue  a  notification declaring that  area as  the local  planning  area  and  the necessary  steps   ought  to   follow   and   thereafter   a notification under  Section 148(1)  of the  Land Revenue Act could be  issued and  it is  only thereafter the question of converting  an   agricultural  land   into  non-agricultural purposes under  Section 95  of  the  Act  would  arise.  The learned Judges  of the  Division Bench  of the  High  Court,

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while dismissing the appeals, observed:-      "Our judgment  will not come in the      way of the Government independently      considering the  matter and  coming      to any conclusion on merits."      At the  stage  it  may  be  mentioned  that  while  the aforementioned  writ   petitions  were  pending  before  the learned Single  Judge a  revised scheme,  DLF Arkavati Green Valley Retreat  Scheme, was  submitted  by  DLF  before  the Government of  Karnataka on  December 1,  1984. The original proposal of  the  owners  of  the  plots  who  were  seeking conversion was  for construction  of 770 farm houses. In the revised  scheme  submitted  by  DLF  the  proposal  was  for developing a  garden colony of 270 country type plots of one acre or  more having a villa each. The said revised proposal was under  consideration before  the State Government during the pendency of the writ petitions before the learned Single Judge and  the writ appeals before the Division Bench of the High Court  and the  fact that  such a  revised proposal had been made  by DLF had also been brought to the notice of the Division Bench  of the  High Court  by DLF  by submitting an application in the writ appeals.      After the  decision of  the Division  Bench of the High Court dated  November  28,  1990  the  said  revised  scheme submitted by  DLf was  considered by the State Government in the  Department   of  Housing  and  urban  Development.  The Karnataka State  Pollution Control Board, the Director (Town Planning) and  the Secretary to the Government of Karnataka, Revenue Department  were also  asked to  examine and furnish their views  on the  revised proposal  submitted by DLF. The secretary  to   the   Government   of   Karnataka,   Revenue Department,  referred  the  matter  to  the  Special  Deputy Commissioner,  who,  by  his  letter  dated  May  10,  1991, communicated his views as under:-      "in   the    instant   case,    the      conversion  already  given  by  the      Special    Deputy     Commissioner,      Bangalore, has  been set  aside  by      the Hon’ble  High Court since their      earlier    proposal     was     for      establishing a  Township consisting      of nearly  700 sites.  The  present      revised     proposal     is     for      establishing only  270 villas. This      area  is   also  outside  the  CDP,      Planning Zone (also not under Green      Belt) and  purely from  the Revenue      Department point  of view  I am  of      the opinion  that there  will be no      objection to grant non-agricultural      permission  is   this   case,   the      earlier conversion  orders will  be      reviewed       if        Government      approve/sanction    the     revised      proposal."      The Secretary  to the  Government of Karnataka, Revenue Department, by  his letter  dated May  14, 1991 informed the Department of  Housing &  Urban Development  about the views referred in  the detailed  report furnished  by the  Special Deputy  Commissioner,   Bangalore,  on   May  10,  1991  and expressed his views as under:-      "Considering all  the aspects,  the      Revenue  Department   is   of   the      opinion   that    the   conversions      already granted  shall continue and

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    orders  if   any  required  in  his      regard would  be issued immediately      after the  decision to  permit this      new proposal is totality by the HUD      Dept. is  made known  to us.  I  am      sure  HUD   could   be   separately      looking into the matters concerning      pollution feared by the BWS&SB."      The Karnataka  State Pollution  control Board  by their letter dated May 13, 1991, addressed to the Secretary to the Government  of   Karnataka  Housing   &  Urban  Development, expressed the  view that  the revised  proposal submitted by DLF may  be approved  subject to the conditions as indicated in the  said letter.  The Director  (Town Planning)  in  his letter dated  May 17,  1991 sent  his note  considering  the various aspects.  After taking  into consideration the views expressed  by   the  authorities  aforementioned  the  State Government passed  the order dated June 29, 1991 which reads as under:-      "PROCEEDINGS OF  THE GOVERNMENT  OF      KARNATAKA      Sub :  M/s DLF’s  Arkavathi  Greeen           valley     retreat      Scheme           Development of  270 sites  for           Country Villas - reg.      Read :  (i) Proposal  dt. 12.8.1985           from M/s DLF Ltd, New Delhi           (ii) Letter dt. 20.8.1991 from                M/s DLF Ltd.           (iii) U.O.  Note No. RO 91 LGB                91 Dt. 14.5.1991 from the                Secretary to  Government,                Revenue Department.           (iv)        Letter         No.                TP/AD2/ISSC/Dev/91-92 dt.                17.5.91 from the Director                of Town Planning.           (v) Letter No. BMRAD/EC/31991-                92 dt.  18.5.91 from  the                Metropolitan                Commissioner,      BMRAD,                Bangalore.      Preamble:-   M/s    DLF   Universal      Limited  alongwith  its  Associated      and   Subsidiary   Companies   have      acquired about  414 acres  of  land      falling    in     Survey    Numbers      1/6,,1/7,2,4,5,6/1,6/2,7,12,13/2,19      to       69,71        to        81,      83/1,87/4,88,90,91,92/1,92/2,93/1,9      3/2,93/3,109/3   and    109/4    in      Gangennahalli  Village,   37/5   in      Kurbubarahalli Village,  7  to  11,      13, and  14 in Varathur Village and      1 to  31 in  Varthur  Narasimhapura      Village all  in  Taverekere  Hobli,      Bangalore  South  Taluk,  Bangalore      District,  on  the  both  sides  of      River Arkavathi  originally for the      purpose of formation of residential      colony under  the name  of M/s  DLF      Arkavathi  Green   Valley   Retreat      Scheme   with    Central   Sewerage      System. The  Bangalore Water Supply      and Sewerage  Board vide its letter

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    dt. 2.1.85  had  suggested  to  the      Government to  examine  the  entire      matter. In  the meanwhile,  M/s DLF      Universal  Limited   has  submitted      revised  proposal   on   12/13.8.85      stating   that   the   new   system      involves construction of individual      septic  tanks   coupled  with  soil      absorption system  with  dispersion      trenches  and  the  effluent  water      will be  used for  gardening,  etc.      They claim  that there  would be no      seepage and  consequent  pollution.      The number of plots will not exceed      270 and  they will  be utilised for      construction of "Country Villas" by      the buyers  of the  Sites/plots and      by M/s  DLF Universal  Limited. The      plots  will  be  approximately  one      acre in  extent and  above  and  no      further sub-division by way of sale      will be  permitted. As  against the      previous   proposal    of   Central      sewerage  plant  for  treatment  of      effluent,  the   revised   proposal      entails  that  each  country  villa      will have  septic tank coupled with      soil absorption system. Each septic      tank will  cater for  15 users  and      the septic tanks will be located at      a minimum  distance of  100  meters      away from  the  river  line.  apart      from this,  the  effluent  will  be      used for  gardening in  each  plot.      Water supply  for the  colony at 10      lakhs litres  per day  will be  met      from Bore-Wells and open wells. The      garden colony  will have  extensive      tree plantings  which will  improve      the ecology  of the whole area. The      then hon’ble chief Minister visited      the spot  alongwith the  then Chief      secretary,   Secretary   to   Chief      Minister and Minister for Housing &      Urban  Development   Department  on      12th  August,  1985.  Subsequently,      the government  had constituted  an      expert committee  to  consider  the      matter  and   also  later   on  the      recommendations of  this  committee      were forwarded  to the    Karnataka      State Pollution control Board among      others for  views. In the meantime,      the  BWSSB   had   approached   the      Hon’ble High Court of Karnataka and      the latter  in W.P.  No.  19919  to      19954 and  21172 to  21177 of  1982      quashed the  order of the Karnataka      Appellate  Tribunal   order   dated      13.8.81, by  which  the  permission      given by the Revenue Department for      conversion from agriculture to non-      agriculture purpose has been upheld      etc., etc.  Against this  order  of      the High Court of Karnataka (Single

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    Bench) M/s  DLF Universal  Ltd. and      others filed  Writ  appeals  before      the Karnataka  High Court  and  the      latter also  dismissed  these  Writ      Appeals. But  while  doing  so,  it      expressed the  opinion in  W.A. No.      744 to  785 of  1987 by  order  dt.      28.11.1990 that  "our judgment will      not  come   in  the   way  of   the      Government           independently,      considering the   matter and coming      to any  conclusion on  merits".  In      the meantime, the Government in the      Revenue Department, the Director of      Town  Planning,   BMRDA    and  the      Karnataka State  Pollution  Control      Board  etc.   The  Karnataka  State      Pollution Board  has sent its reply      vide  its   letter  dt.   13.5.1991      stating that  the proposal  of  M/s      DLF  and   other  may  be  approved      subject    to     the     following      conditions:-           i) Since  the area proposed to           be   developed   is   in   the           sensitive     zone,      i.e.,           Catchment       area        of           Thippagondanahally  Reservoir,           all precautions  are  required           to be taken so that there will           not be  any direct or indirect           entry of  sewerage effluent to           the reservoir or the river.           ii) The septic tank, soak pit,           dispersion system of each farm           house   shall    be    located           farthest from  the boarders of           the reservoir and the river.           iii) The design for the septic           tank, soak pits and dispersion           system shall  be submitted  to           Karnataka   State    Pollution           Control  Board   and  approval           obtained  before  commencement           of building activities.           iv) The sludge from the septic           tank    shall    be    removed           compulsory once  in two years,           dried  in   a  separate   yard           following  scientific   method           for  which   records  must  be           maintained  and  produced  for           verification   by    Karnataka           State Pollution Control Board.           v) Pesticides,  fungicides and           insecticides should be applied           on the  vegetation in the area           in  a   scientific  method  as           approved by  the  Agricultural           Department      to       avoid           contamination    of    surface           water.           vi)   Peasemeters   shall   be           positioned     at      regular           intervals along  the reservoir

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         of  river   borders   in   the           proposed  site  after  getting           the advice  from the  National           Environmental      Engineering           Research Institute, Nagpur for           appropriate   monitoring    of           contamination of  ground water           likely to be leached to either           river or reservoir.           vii) the applicant shall abide           by such  other  conditions  as           prescribed  by  the  Karnataka           State Pollution  Control Board           as and when the same are found           necessary.      These recommendations/conditions of      the   Karnataka   State   Pollution      control   Board,    alongwith   the      opinion received  from  others  and      also taking  into consideration  an      overall view  of the  entire matter      and the letter dt. 20.5.1991 of M/s      DLF Universal  Ltd., the Government      have decided  to take the following      decisions in public interest:           Order  No.   HUD  90  MRI  84,           BANGALORE  DATED   29TH   JUNE           1991.           A) M/s  DLF is hereby directed           to    stipulate     in    each           sale/lease   deed    (to    be           registered), while selling the           plots/country villas that each           buyer  of   the   site/country           villas shall strictly abide by           the pollution control measures           recommended by  the  Karnataka           State Pollution  control Board           as stated above and the latter           will have the right to inspect           and satisfy  itself  with  the           compliance of  the measure and           in case  of any violation, the           Pollution Control  Board shall           take  action   as  per   rules           against the violator(s).           B) Government hereby order for           continuance of  the permission           given for  a conversion by the           Revenue Department  in 1979-82           for converting  these lands to           non-agricultural       purpose           (residential).           C) It is further directed that           any monitoring  by peasemeters           may be  undertaken directly by           the Karnataka  State Pollution           Control  Board,   and   BWSSB,           independently of DLF Universal           Ltd.           D)  The   DLF  Universal  Ltd.           would be over a period of time           disposing    off    all    the           sites/country    villas    and           accordingly the  ownership  of

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         these   plots/country   villas           will     get     progressively           transferred    to    different           individuals. It is, therefore,           directed that  all obligations           and restrictions  that may  be           imposed on  M/s DLF  Universal           Ltd.      by      Governmental           authorities   will   have   to           ultimately  and  progressively           be DLF  Universal Ltd. to whom           these   plots/country   villas           will finally  get  transferred           by sale/lease deeds.           E)   The    revised    present           proposals dt.  12/13.8.85  for           development   of   sites   not           exceeding  270   numbers   for           construction of country villas           by  M/s   DLF  Universal  Ltd.           and/or  their  successors  are           only out  lines regarding  the           layout, the  roads  and  other           facilities.  It   is  directed           that a  firm commitment on the           development   of   sites   not           exceeding 270  country  villas           will be strictly adhered to by           M/s DLF  Universal  and  their           successors.   Therefore,   any           modifications to the layout if           found  necessary   later   on,           while  executing   the   civil           works,  may  be  permitted  in           consultation  with   the  Town           Planning Authorities,  but  in           no way  sites for  270 country           villas will be exceeded.           BY ORDER  AND IN  THE NAME  OF           THE GOVERNOR OF KARNATAKA               (H.K. SAMPANGIRAMAIAH)           Under Secretary to Government,           Housing & Urban Development                     Department."      The said  order dated  June 29,  1991 was challenged by the petitioners in the three writ petitions which were filed by way  of public  interest litigation on the ground that by allowing a  township to  come up  on the  banks of  Arkavati River by construction of 270 country villas both the quality and quantity  of water  in the river and the water reservoir constructed at Thippagondanahally across the river Arkavati, which is  one of the main sources for supply of water to the city of  bangalore, would  be adversely affected which would be injurious  to the interests of the people residing in the city of Bangalore and that not only there would be depletion in supply  of water  but  also  there  is  every  chance  of pollution of  water. The following contentions were urged by the petitioners  in support  of their  writ petitions before the High Court:-      (1) The  impugned order  which directs  that permission      for  conversion   of  agricultural   lands   for   non-      agricultural use  which were  quashed by the High Court      shall  continue  is  high-handed,  arbitrary,  illegal,      destructive  of   Rule  of  Law  and  also  amounts  to      committing contempt of the High Court.

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    (2) Under  the Land  Revenue Act  the Government had no      power   to   grant   permission   for   conversion   of      agricultural lands  for non-agricultural  use  as  that      power under Section 95 thereof is conferred only on the      Deputy Commissioner  and therefore the order is without      authority of law.      (3) Though the clear pronouncement of the High Court in      the writ  petition filed  by the  Board and in the writ      appeal arising  therefrom was, unless a new township is      established after  following the  procedure  prescribed      under the  Land Revenue  Act,  and  the  Planning  act,      question of  exercise of  power under Section 95, would      not arise, the Government has passed the impugned order      allowing a  new Township  and therefore  not only it is      violative of the Land Revenue Act but also a clear case      of flouting the decision of the High Court.      (4)  The   impugned  order  is  totally  arbitrary  and      violative of Articles 14 and 21 of the Constitution, as      it  adversely   affect  the  quality  and  quantity  of      drinking water  to  the  city  and  it  is  passed  for      collateral consideration, namely, the influence brought      to bear  on the  Government by  the DLF and which would      benefit only  the DLF to make profit and a few affluent      individuals to  put up country villas which would be at      the cost  of the  interests of millions of residents of      the city of Bangalore.      (5) Though  by the force of Section 79-A and/or Section      79-B of  the Land Reforms Act the 414 acres of land has      to be  forfeited  to  Government,  the  Government  has      chosen to  pass the impugned order and therefore, it is      illegal.      The first  three contentions have found favour with the learned Judges  of the  High Court  and, accepting  the said contentions, the  High Court  has set  aside the order dated June 29,  1991 and the said writ petitions have been allowed by the impugned judgment of the High Court.      Civil Appeals Nos. 4543-4548 of 1992 have been filed by the State of Karnataka, while Civil Appeals Nos. 456-4548 of 1992 have  have been filed by  DLF against the said judgment of the  High Court.  The State  of Karnataka  has,  however, filed I.A.  NOs. 4-6  seeking  permission  to  withdraw  the appeals. The said applications are allowed and Civil Appeals Nos. 4543-4545  of 1992  filed by the State are dismissed as withdrawn.      Shri Kabil  Sibal, the learned senior counsel appearing for DLF,  has urged  that the  High Court  was in  error  in proceeding on the basis that the revises scheme submitted by DLF was  for establishing  a new  township and that by order dated  June   29,1991  permission   had  been   granted  for establishment of  a new  township. It  has been  urged  that under the  revised scheme  what is  proposed is to construct about 270  villas over plots measuring one acre or more each and that  the construction of 270 villas on plot of one acre each cannot  be regarded  as establishing  a  township.  The proposed scheme  was  really  a  scheme  for  conversion  of agricultural land  for use  for  non-agricultural  purposes, namely, residential  purposes and  it  was  required  to  be considered only under Section 95 of the Land Revenue Act and that the  High Court was not right in holding that the State Government was required to follow the procedure laid down in Section 4,5  and 6  of the  Land Revenue Act. As regards the exercise of  power under Section 95 of the Land Revenue Act, the submission  of Shri Sibal is that one has to look at the substance of  the matter  and if  it is  considered in  that light it  would be evident that the matter relating to grant

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of approval for diversion of agricultural land for use other purposes under Section 95 has been considered by the Special Deputy Commissioner  since, in  his communication  dated May 10,  1991,   addressed  to   the  Secretary,  Government  of Karnataka   Revenue    Department,   the    Special   Deputy Commissioner had  expressed the  view that  from the revenue point of view in his opinion there was no objection to grant of permission  for conversion  to non-agricultural purposes. Shri Sibal  has contended that although technically speaking the order  for continuing  of the permission earlier granted could not  be passed in view of the judgments of the learned Single Judge of the High Court as well as the Division bench of the High Court in the earlier writ petitions filed by the Water Supply  and Sewerage Board whereby the orders granting approval for  such  conversion  had  been  quashed  but,  in substance, the  order dated  June 29,  1991 is  an order for fresh grant  of permission  under Section  95 of the Act. In this context, Shri Sibal has urged that in a public interest litigation the  court examines  the substance  of the matter and sees  whether the  impugned action  causes injury to the larger public  interest and  that if  the order of the State Government dated  June 29, 1991 is examined in that light it cannot be  said that  while passing the said order the State Government has  not kept in view the larger public interest. Shri Sibal  has emphasised  that before  passing  the  order dated 29,  1991 the  State Government had obtained the views of  the   concerned   departments,   namely,   the   Revenue Department, the  karnataka State Pollution Control Board and the Department  of Town Planning and while passing the order the state  Government has  given due  consideration to these views. Assailing  the impugned  judgment of  the High  Court holding that  the proposed  scheme would result in depletion of the  available supply  of water  in  Arkavati  river  and Thippagondanahally water reservoir, Shri Sibal has submitted that no  water would  be taken either from Arkavati river or from the  reservoir and  that need  of water  supply for the proposed colony would be met by open wells and bore wells on the plots.  As regards  the apprehension  that the  proposed scheme would  result in  pollution of the water in the river or  the   reservoir,  Shri  Sibal  has  submitted  that  the Karnataka  State  Pollution  Control  Board  has  laid  down stringent  conditions   with  a   view  to   preventing  any possibility of  such pollution  and that the order passed by the State  Government requires  DLF to  fully abide  by  the conditions that are imposed by the Karnataka State Pollution Control Board and the State Government in that regard.      Shri Javeli,  the learned  senior counsel appearing for the petitioner-respondents, who had filed the writ petitions in the  High Court,  has, however,  submitted that  the High Court has  rightly quashed  the order  dated June  29,  1991 passed by  the State Government and that the proposed scheme would result  in depletion of availability of water in river Arkavati and  Thippagondanahally reservoir which is the main source of  water supply  to the  city of  Bangalore. In this connection, Shri  Javeli has  invited our  attention to  the impugned judgment  of the  High Court  wherein it  has  been observed that  the Water  Supply and  Sewerage Board, in the earlier writ petitions had taken the stand that the proposed scheme would  result in  depletion of  available  supply  of water in  the reservoir,  but in  the present case the Water Supply and  Sewerage Board has chosen not to file any reply. The submission  of Shri  Javeli is that in the circumstances the High  Court was right in proceeding on the basis that in the absence  of any  reply by  the Water Supply and Sewerage Board the  earlier position  taken by  the Water  Supply and

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Sewerage Board  must be  accepted as  correct and  that  the proposed scheme  would  result  in  depletion  of  available supply of  water for  the city of Bangalore. Shri Javeli has also submitted  that the proposed scheme for construction of villas is  bound to create degradation in the environment of the neighborhood  and would  also lead to pollution of water in river  Arkavati  and  Thippagondanhally  water  reservoir since the proposed construction would be made quite close to the river  and the reservoir. Shri Javeli has also submitted that the  High Court  has rightly  held  that  the  proposed scheme would  result in establishment of a township and this could only  be done  after following the procedure laid down in Section 4, 5 and 6 of the Land Revenue Act.      The challenge  to the  validity of the order dated June 29, 1991  has been  made in  proceedings which  are  in  the nature of  public interest  litigation at  the  instance  of persons  residing   in  the   city  of  Bangalore  who  were apprehensive that  the said  approval of  the  scheme  would adversely affect  the supply  of water to the city and would also result  in pollution of the waters of river Arkavati as well as  Thippagondanahally water   reservoir from where the water is supplied to the city of Bangalore. Having regard to the nature  of the  proceedings the matter is required to be considered in a broad interest perspective. If the matter is considered in  this perspective  two  questions  that  arise are:-      (i) In  passing the order date June 29, 1991 giving its      approval  to   the  proposed   scheme  has   the  State      Government kept  in view  the interest of the public in      the matter of pollution of the waters of river Arkavati      and  Thippagondanahally   water   reservoir   and   the      availability  of   supply  of  water  to  the  city  of      Bangalore?; and      (ii) If  the answer  to question  No.  (i)  is  in  the      affirmative, does  the approval  of the proposed scheme      by the State Government under order dated June 29, 1991      suffer from an infirmity justifying interference by the      Court in exercise of its power of judicial review ?      In the  matter of  pollution of the waters the order of the State Government dated June 29, 1991 takes note that the revised scheme  submitted by  DLF involves  construction  of individual septic  tanks coupled with soil absorption system with dispersion trenches and that the effluent water will be used for gardening, etc. Under the scheme each country villa will have  a septic tank coupled with soil absorption system and each  septic tank will cater for 15 users and the septic tanks will  be located  at a  minimum distance of 100 meters away from  the river  line. The  order dated  June 29,  1991 shows that  reference had  also been  made to  the Karnataka State Pollution  Control Board  and the  said Board,  in  it reply vide  its letter  dated May  13, 1991, had stated that the  proposal   of  DLF  may  be  approved  subject  to  the conditions  set   out  in  the  said  letter.  In  the  said conditions the Pollution Control Board had indicated that      (i) since  the area  proposed to be developed is in the      sensitive   zone,   i.e.,   catchment   area   of   the      Thippagondanahally  reservoir,   all  precautions   are      required to  be taken  so that  there will  not be  any      direct or  indirect entry  of sewerage effluents to the      reservoir or the river,      (ii) the  septic tank,  soak pit,  dispersion system of      each farm  house shall  be located  farthest  from  the      borders of the reservoir and the river,      (iii) the  design for  the septic  tank, soak  pit  and      dispersion shall  be submitted to the Pollution Control

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    Board and  approval  obtained  before  commencement  of      building activities,      (iv) the  sludge from  the septic tank shall be removed      compulsorily once  in two  years, dried  in a  separate      yard following scientific method for which records must      be maintained  and produced  for  verification  by  the      Pollution Control Board,      (v) Pesticides,  fungicides and  insecticides shall  be      applies on  the vegetation  in the area in a scientific      method as  approved by  the Agricultural  Department to      avoid contamination of surface water, and      (vi) peasemeters  be positioned  at  regular  intervals      along with  reservoir of  river borders in the proposed      site  after   getting  the  advice  from  the  National      Environmental Engineering  Research  Institute,  Nagpur      for appropriate  monitoring of  contamination of ground      water  likely   to  be   leached  to  either  river  or      reservoir. The State  Government  arrived  at  the  decision  to  grant approval to  the proposed  scheme of DLF keeping in view the said conditions  indicated by  the karnataka State Pollution Control Board  and in  the order  dated June  29, 1991 it is provided that   DLF  shall stipulate in each sale/lease deed (to be  registered), while selling the plots/country villas, that each  buyer of  the site/country  villas shall strictly abide by  the pollution  control measures recommended by the Karnataka State  Pollution Control  Board and  that the said Board will have the right to inspect and satisfy itself with the  compliance   of  the  measures  and,  in  case  of  any violation, the  said Board  shall take  action as  per rules against the violator(s). This would show that while granting permission the  State Government has kept in view the danger of  pollution   of  the   waters  of   river  Arkavati   and Thippagondanahally water  reservoir and  has taken  adequate precautions against  the possibility  of such  pollution  by imposing strict  conditions as  laid down  by the  Karnataka State Pollution control Board in that regard. While granting approval to  the proposed scheme of DLF the State Government has also  directed that any monitoring by peasemeters may be undertaken directly by the Karnataka State Pollution Control Board and  Water Supply  and Sewerage Board independently of DLF.      As regards  depletion in  the availability of water for supply to  the city  of  Bangalore  from  Thippagondanahally water reservoir,  we find  that in  the order dated June 29, 1991 the  State Government  has taken  note of the fact that under the  proposed scheme water supply for the colony at 10 lakhs litres  per day  will be  met from bore-wells and open wells  and  the  garden  colony  will  have  extensive  tree plantings which  will improve the ecology of the whole area. Before passing  the order  reference was  made to  the Water Supply and  Sewerage Board  and the  said Board  had, in its letter dated  January 2,  1985, left it to the Government to consider the  matter which shows that there was no objection on the  pat of  the Water  Supply and  Sewerage Board to the proposed scheme  on the  ground of  its having  any  adverse effect on  the availability  of water for supply to the city of Bangalore.  The High Court has, however, pointed out that in the  earlier writ  petitions filed by it the Water Supply and Sewerage  Board had  filed a  statement wherein  it  was pointed out that by reason of establishment of a township on the banks  of river  Arkavati  close  to  Thippagondanahally water reservoir  water will  be polluted and it will also be depleted as  bore-wells are  proposed to  be drilled  in the area over  which new  township is  proposed and consequently

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the quantity  and quality  of water  supply to  the city  of Bangalore would  be adversely  affected. The  High Court has pointed out  that in  the present  writ petition  the  Water Supply and  Sewerage Board  has not filed any reply and that the silence  on the  part of  the Water  Supply and Sewerage Board means that the said Board accepts the case put forward by the  petitioners that the proposed scheme would adversely affect the  supply of water. On that view the High Court has accepted the  plea of the petitioners that there is bound to be depletion of water for supply to the city of Bangalore as a result  of bringing  into existence of the new township in the vicinity  of Thippagondanahally water reservoir. In this context, the  High Court  has also referred to the report of the Committee  which was constituted by the Government under the Chairmanship  of Shri  S. Hanumantha Rao to consider the feasibility of  according permission  to the  modified  plan wherein reference  has been made to the opinion given by the Water Supply  and Sewerage  Board in  June 1986. In the said opinion, as  extracted in  the report  of the Committee, the Water Supply  and Sewerage  Board had  raised  an  objection regarding the  possibility of  pollution of  waters of river Arkavati  and   Thippagondanahally   water   reservoir.   No objection appears  to have  been raised  at that  time about depletion in  the availability  of water  for supply  to the city of  Bangalore.  The  views  of  the  Water  Supply  and Sewerage Board regarding the possibility of pollution of the waters  of   river  Arkavati  and  Thippagondanahally  water reservoir were,  however,  not  accepted  by  the  committed keeping in  view the  fact that plots would be not less than one acre  and each  plot shall  not have more than one house and the  appropriate authorities  may  insist  on  correctly designed septic  tanks followed by anaerobic contact filters and dispersion  system like  soak pits,  absorption trenches and got  complied with. The failure on the part of the Water supply and  Sewerage Board  to raise  an  objection  to  the revised  scheme   on  the   ground  of   depletion  in   the availability of  water for  supply to  the city of Bangalore indicates that  in view  of reduction  of density of persons who would  be residing  in the area under the revised scheme the Water  Supply and  Sewerage Board  felt  satisfied  that there would  be no  adverse effect  on the  availability  of water for  supply to  the city  of Bangalore  on account  of construction of  270 villas  as per the proposed scheme. The High Court  was, therefore,  in error  in proceeding  on the basis that since the Water supply and Sewerage Board did not file its  reply to  the writ  petitions of  the  petitioner- respondents, the said Board must be treated to have accepted as correct  the case  of the petitioner-respondents that the proposed scheme  would adversely  affect the supply of water to the  city of  Bangalore from the Thippagondanahally water reservoir.      It cannot, therefore, be said that in passing the order dated June 29, 1991 granting approval to the proposed scheme submitted by  DLF the  State Government  has failed  to take into consideration  the matters of public interest raised by the petitioner-respondents, namely, possibility of pollution of waters  of river  Arkavati and  Thippagondanahally  water reservoir and the depletion in the availability of water for supply to  the city  of Bangalore.  The order dated June 29, 1991 shows that it was passed after the State Government had taken  into  consideration  all  the  relevant  factors  and approval was  given to  the proposed  scheme after the State Government was  satisfied that  the proposed scheme will not affect the  availability of  water for supply to the city of Bangalore  and   had  also   prevented  the  possibility  of

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pollution   of    the   waters   of   river   Arkavati   and Thippagondanahally water  reservoir by  laying conditions We are unable  to hold  that on  the basis  of the  material on record the  State Government  could not  reasonably take the view  that   the  proposed   scheme  would  not  affect  the availability of  water for  supply to  the city of Bangalore and would  not result  in pollution  of the  waters of river Arkavati and Thippagondanahally water reservoir.      We may  now examine  the legal  grounds on the basis of which the  High Court has set aside the order dated June 29, 1991.      The High  Court has  taken the  view that  the proposed scheme is  for the  establishment of a township and that the mandatory procedure  for declaring/forming  a new village as laid down  in Section  6  of  the  Land  Revenue  Act  which postulates publication  of a notice of the proposal inviting objections and  consideration  of  any  objections  to  such proposal. In that regard the High Court has observed:-      "But the fact remains it would be a      new township. Further, as according      to the  modified plan,  270  houses      are to  be constructed  as  rightly      pointed out  by the learned counsel      for   the   petitioners.   Servants      quarters have  to  be  constructed.      Large   number    of   construction      workers  would  come  in  and  they      would put up sheds in the vicinity.      In   the   circumstances,   as   of      necessity  shops,  restaurants  and      other  services  would  be  opened.      Therefore,   the   stand   of   the      respondents 1 and 4 no new township      would come  into existence  is  not      true."      The High  Court has  also pointed  out that  the  words "Sub: -  Formation of  Township of  DLF Universal  Ltd. (DLF Arkavati Scheme  Green Belt)" in the letter of the appellant dated October  20, 1990  show that  the appellant itself was seeking the  approval for  establishment of  a new township. The word  "township" is  not found  in any  provision of the Land Revenue Act which only talks of village, town and city. Village is  the smallest  unit for  the purpose  of the Land Revenue Act.  We, therefore, do not consider it necessary to go into  the question  whether the  proposed scheme  is  for establishment of a township.      Section 4  of the  Act makes  provision for division of the State  into divisions  and division into districts. Each consists of taluks, a taluk consists of circles and a circle consists  of   villages.  Section   5  empowers   the  State Government to alter or add to the limit of any village or to amalgamate two or more villages or constitute a new village. Section  6   lays  down   the  procedure  for  constitution, abolition, etc., of divisions, districts, taluks, circles of villages and it provides as under:-      "6.  Procedure   for  constitution,      abolition,   etc.,   of   Division,      Districts,   Taluks,   Circles   or      Villages.- Before  the  publication      of any notification under Section 4      or 5  declaring any  area to  be  a      division, district,  taluk,  circle      or village  or altering  the limits      of any  division, district,  taluk,      circle or  village,  or  abolishing

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    any  division,   district,   taluk,      circle  or   village,   the   State      Government shall  except  in  cases      where it considers not necessary so      to  do   publish  in  the  Official      Gazette and in such other manner as      may be  prescribed, a notice of the      proposal  inviting  objections  and      shall take  into  consideration  of      any objections to such proposal." The expression  "village" is defined in Section 2(38) of the Land Revenue Act in these terms:-      "Village" means  a local area which      is recognised  in the  land records      as  a   village  for   purposes  of      revenue administration and includes      a town  or city  and all  the  land      comprised within  the limits  of  a      village, town or city;" We are  unable to  uphold that  the grant of approval to the proposed scheme  amounts to declaring the said area as a new village or  the alternation  of  the  area  of  an  existing village. The  question whether  the colony  which comes into existence under  the scheme as proposed is to be declared to be a new village or is to be included in an existing village will have to be considered after the development takes place as proposed in the scheme and at that stage the requirements of Section 6 of the Land Revenue Act may have to be complied with. We  are, therefore,  unable to  agree with the view of the High  Court that  the State  Government was  required to follow the  procedure laid down in the Section 6 of the Land Revenue Act  before passing  the order  dated June  29, 1991 approving the proposed scheme.      As regards  diversion of the land from agricultural use to non-agricultural  use for  construction of  villas, it is not disputed  that under  Section 95 of the Land Revenue Act the power  to grant the necessary permission is conferred on the Deputy Commissioner. The High Court has held that in the present case the said power was not exercised by the Special Deputy  commissioner   but  was   exercised  by   the  State Government and  that the  State Government was not competent to exercise  the said  power Section 95. In taking this view the High  Court has failed to note that it was not a case of diversion of  use of  an isolated piece of agricultural land by an individual. This was a case where diversion of sue was sought in  respect of  a large  number of plots of land. The matter required  examination  from  various  aspects  and  a composite view  had to be taken after ascertaining the views of the  concerned departments.  The State  Government  alone could do  so and,  therefore, the  matter was required to be considered by the State Government. Before taking a decision on the matter the State Government had obtained the views of the special  Deputy Commissioner with regard to diversion of use of  the lands  under Section 95 of the Land Revenue Act, as well  as the Karnataka State Pollution Control Board, the Director  of   Town  Planning,  the  Bangalore  Metropolitan Development authority  and the  Water  Supply  and  Sewerage Board. After  taking into  consideration the  views of these departments the  order dated June 29, 1991 was passed. Since the Special  Deputy commissioner in his letter dated May 10, 1991, had  expressed the  opinion that  conversion could  be allowed  it   cannot  be   said  that   the  Special  Deputy Commissioner has  not exercised  the power  conferred on him under Section  95 of  the Act  and the  said power  has been exercised by  the State Government. The State Government has

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taken note  of the  views of the Special deputy Commissioner while considering  the matter  in the proper perspective. It cannot, therefore,  be said  that the  order dated  June 29, 1991 was  not in consonance with the requirements of Section 95 of the Land Revenue Act.      Shri  Javeli  has,  however,  urged  that  since  under Section 49 of the Land Revenue Act an appeal lies against an order  passed  by  the  Special  Deputy  Commissioner  under Section 95  of the  Land Revenue  Act and  since no specific order was  passed by  the Special Deputy Commissioner in the present case  the petitioner-respondents  were  deprived  of their right  to file  an appeal  against the order regarding diversion  of  user  of  the  land.  In  this  context,  the submission of  Shri Javeli is further that if the matter had gone to the Special Deputy Commissioner for passing an order under Section  95 of  the Land  Revenue Act  the petitioner- respondents would  have had  an opportunity  of objecting to the grant of the permission fro conversion and that the said opportunity had been denied to them. Shri Javeli has invited our  attention  to  sub-section  (3)  of  Section  95  which provides as under :-      "Permission  to   divert   may   be      refused by  the Deputy Commissioner      on the ground that the diversion is      likely to  defeat the  provision of      any law for the time being in force      or that  it is  likely to  cause  a      public nuisance  or that  it is not      in the  interests  of  the  general      public  or  that  the  occupant  in      unable or  unwilling to comply with      the conditions  that may be imposed      under sub-section (4)."      In our  opinion, the matters referred to in sub-section (3)  of   Section  95   are  required   to  be   taken  into consideration by  the Deputy commissioner while dealing with an application  seeking permission  for diversion  of use of agricultural land. But from the provisions contained in sub- section (3)  of Section 95 we are unable to infer a right in a member  of the  public who  has no special interest in the matter to  file an  objection to an application for grant of permission to  divert the  use of  agricultural land  and to claim an  opportunity to  appear and  oppose the application before the Deputy Commissioner. In cases where permission to divert has  been granted  under Section  95 and  any  person feels that the said permission has been granted in violation of the  provisions contained in Section 95(3) of the Act, it is open  to him  to challenge  the same bu he cannot claim a right to  raise an  objection before the Deputy Commissioner at  the  stage  of  consideration  of  the  application  for diversion. The  petitioner-respondents have  exercised  this right by  assailing the  permission for diversion before the High  Court.   We  are,  therefore,  unable  to  accept  the submission of  Shri Javeli  that the procedure that has been followed in  the present  case has resulted in denial of any right conferred on petitioner-respondents.      The  High  court  has  also  held  that  an  order  for continuation of the permission that had been granted earlier could not  be passed  since the  earlier order  for grant of permission had been quashed by the High Court in the earlier writ petitions filed by the Water Supply and Sewerage Board. Since the  earlier permission  granted by the Special Deputy Commissioner had been quashed by the High court an order for continuance of  that permission  could not be passed and the proper course  was to  pass  a  fresh  order  for  grant  of

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permission for diversion of use under Section 95 of the Act. But having  regard to  the fact  that the  matter  has  been considered by  the Special  Deputy commissioner  and in  his letter dated  May 10, 1991 he has expressed the opinion that permission for  diversion can  be granted  the defect in the order of  the State  Government dated  June 29,  1991 is one relating to form only and it does not touch the substance of the matter.  The said  defect is  not such  as to  call  for interference  with   the  order   dated  June  29,  1991  in proceedings instituted  by way of public interest litigation especially when  it is  found that  the said  order does not adversely affect public interest.      For the  reasons aforementioned we are unable to uphold the impugned  judgment of  the High Court quashing the order of the  State Government  dated June  29,  1991  giving  its approval to the proposed scheme of DLF.      In the result, while Civil Appeals Nos. 4543-45 of 1992 filed by the State are dismissed as withdrawn, Civil Appeals Nos. 4546-48  of 1992  filed by DLF ar allowed. The impugned judgment of  the High  Court  is  set  aside  and  the  writ petitions filed by the petitioner-respondents are dismissed. No costs. I.A.Nos. 1-42 in S.L.P. (C) Nos. 10914-55/91      The appellant had filed S.L.P.(C) Nos. 10914-55 of 1991 against the judgment of the Division Bench of the High Court dated November 28, 1990 in Writ appeals Nos. 744-85 of 1987. But after  the order  of the State Government dated June 29, 1991, the  appellant  sought  leave  to  withdraw  the  said special leave  petitions and  by order dated October 8, 1991 the  said   special  leave   petitions  were   dismissed  as withdrawn. subsequently  after the  passing of  the impugned judgment  of  the  High  Court  dated  April  24,  1992  the appellant has  filed I.A.  Nos. 1-42  in those special leave petitions wherein  it has  been prayed  that the order dated October 8,  1991 dismissing  S.L.P.(C) Nos. 10914-55 of 1991 as  withdrawn  may  be  recalled  and  reviewed  and/or  are modified and  that the  said special  leave petitions may be restored. Since we are allowing Civil Appeal Nos. 4546-48 of 1992, I.A.Nos. 1-42 in S.L.P(C) Nos. 10914-55 of 1991 do not survive and the same are, therefore, dismissed.