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CASE NO.: Appeal (civil)  4908 of 2002

PETITIONER: M/s. D.L.F. Qutab Enclave Complex Educational Charitable Trust

RESPONDENT: Vs. State of Haryana and Ors.                                        

DATE OF JUDGMENT: 17/02/2003

BENCH: S.B. Sinha & AR. Lakshmanan.

JUDGMENT:

J U D G M E N T

WITH

       CIVIL APPEALS NOS. 4909, 4910 AND 4911 OF 2002

S.B. SINHA, J:

       Interpretation of Section 3(3)(a)(iv) of the Haryana Development and  Regulation of Urban Areas Act, 1975 (hereinafter called and referred to for  the sake of brevity as ’the said Act’) falls for consideration in these appeals  which arise out of a judgment and order of the Punjab and Haryana High  Court dated 7.3.2001 passed in C.W.P. No.7245 of 1997 filed by the  appellant of Civil Appeal No. 4908 of 2002.

       M/s. DLF Universal Ltd. (DLF) is a public limited company  registered and incorporated under the Indian Companies Act.  It purchased  free-hold lands at Gurgaon in the State of Haryana for setting up a colony  known as DLF Qutab Enclave Complex.  It applied for and was granted  licence in terms of the provisions of the said Act.   

       M/s. DLF Universal Limited and other group of companies created  DLF Qutab Enclave Complex Educational Charitable Trust (Trust) wherefor  85 sites were earmarked for constructions of schools/ community buildings  in the complexes.  The said sites vested in the Trust by reason of a deed. The  Trust entered into agreements of lease with Gunjan Nikunj Educational  Institute (P) Ltd., Mr. A.H. Handa, New Ekta Educational Society, Satish  Mohindra and Sukhjeet Kaur Mann (hereinafter referred to as ’fourth  parties’).            Three of the lessees from the Trust, namely, New Ekta Educational  Society, Satish Mohindra and Sukhjeet Kaur Mann applied for approval and  were granted building plans by the 2nd respondent herein.

       On or about 9.2.1994 the 2nd Respondent issued a letter to the DLF  directing it to ensure that no other fourth party right is created on community  site, in respect whereof third party interest was created prior to 7.8.1991.   The said cut off date was fixed purported to be on the basis of the resolution  taken in a meeting held under the Chairmanship of the then Chief Minister  of the State of Haryana wherein a resolution was adopted to the effect that  no further third party right could be created.  The State of Haryana by a  letter dated 25.10.1994 issued instructions as regards transferring  community sites to third and fourth parties and raising constructions  thereupon which are broadly classified into three heads:

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I.      Where community sites are still in the ownership of the colonizers II.     Sites where colonizers have created third party rights before  7.8.1991 III.    Cases where the licensee has created fourth party right on  community sites.

       The said instructions were followed by another addenda in terms of a  letter dated 13.2.1996 stating that the time schedule of three years for  construction on community buildings would also apply to all sites where  third and fourth party rights have been created before 7.8.1991 and in  respect thereof, the remaining conditions of letter dated 25.10.1994 shall be  applicable.  The legality or validity of the directions contained in the said  two letters dated 25.10.94 and 13.2.96 were the subject matter of the writ  petition filed by the Trust in Punjab and Haryana High Court marked as  Civil Writ Petition No. 7245 of 1997.

It appears that a proposal was mooted in the said proceeding as to  whether the dispute between the parties could be amicably resolved and  pursuant thereto or in furtherance thereof by an order dated 21.9.2001 the  Trust was given an opportunity by the High Court to obtain and file  affidavits of the parties in whose favour licences had been granted for  construction and running of the schools.   

       Allegedly, the respondents No. 1 and 2 pursuant to the observations  made by the High Court held meetings with all concerned an d found the  said proposal to be acceptable.   

       Thereafter affidavits were filed by the concerned fourth parties stating  that they would abide by the conditions of the licence issued in favour of  DLF as also the rules and regulations and instructions issued by the First and  Second Respondents.  In the said affidavits it was further affirmed that  schools would be built within the time specified by the Respondents.   

 The High Court by an order dated 13.12.2000 recorded that the  parties had nearly reached a consensus and draft agreement was directed to  be put up for its consideration.   

       However, the learned Advocate General for the State of Haryana on or  about 16.2.2001 appeared and stated before the High Court that it was not  possible for the State to accept the said proposal and requested that the Writ  Petition be decided on merits.                   The Writ Petition by reason of the impugned judgment was dismissed  holding:

(i)     The petitioner is a duplicate of the licensee.  It has been created to  fiddle with figures.  A consuming avarice and not charity is the  cause for its creation.

(ii)    The Act and the Rules do not permit the licensee to transfer sites  without the permission of the competent authority.  The action of  the respondents in refusing to recognize the transfers cannot be  said to be illegal.

(iii)   The impugned circulars are not arbitrary, illegal or unfair.  These  do not impinge upon the protection of Article 14 of the  Constitution.

(iv)    The failure of the Authority to act or the mere silence of the State  cannot be a ground for the court to put its seal of approval on deeds  which do not have the sanction of the Statute and the Rules.

       Mr. Harish Salve, the learned senior counsel appearing on behalf of  appellant in Civil Appeal No. 4909 of 2002 would submit that the said Act,

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the Rules framed thereunder or the conditions of licence do not provide for  imposition of any embargo on transfer of the lands, in question, to third  parties by DLF and as such the impugned judgment is not sustainable.  The  learned counsel would contend that by reason of the said Act only grant of  licence as regards regulation of user of land is contemplated and the  restrictions imposed thereunder must be held to be operative qua the terms  and conditions of licence and not qua the owners of the properties.  Mr.  Salve would urge that so long the user of the land conforms to the provisions  of the Act, Rules or the terms and conditions of the licence, no restriction on  exercise the right of the owner to transfer the land can be imposed having  regard to absence of a statutory provision in relation thereto.  He would  argue that the question as to whether the Trust was an entity independent of  DLF is wholly irrelevant or not inasmuch as even assuming that it is so,  having regard to the terms and conditions of licence as the third parties and  the fourth parties are claiming interest through the owner, they would also be  bound thereby.  In that view of the matter and particularly having regard to  the fact that the fourth parties by way of affidavits had undertaken to abide  by the terms and conditions of the licence granted pursuant to or in  furtherance of the said Act and the Rules framed thereunder, the purport and  object for which Town Planning Act has been enacted would not be violated.  It was argued that conversely if it be held that the DLF was entitled to  transfer those lands to the third parties, the profits accrued by reason of the  transactions of the Charitable Trust lose relevance for a decision upon the  validity of the refusal of the Government to sanction the building plans.  The  learned counsel would submit that having regard to the expression  ’development works’ meaning ’internal and external development works’,  used in the statute, no fetter on transfer of lands can be inferred, as long as  lands reserved for construction of schools, hospitals, community centers etc.  are used for the said purpose.  By reason of the provision contained in  Section 3(3) of the Act, it was submitted, the licensee was merely obligated  to construct or get constructed schools, hospitals, community centers etc.  and thus, in terms thereof no prohibition has been imposed as regard transfer  thereof to an institution or an individual so as enable them to undertake  construction of schools, hospitals and community centers at their own cost.

       Drawing our attention to the instructions dated 9.2.1994 issued by the  Director, Town & Country Planning impugned in the writ petition, the  learned counsel would submit that the same merely shows that an executive  decision in relation thereto was taken which was not backed by any statute  or statutory rule and as such the same should have been declared ultra vires  by the High Court.

       Mr. M.L. Verma, the learned counsel appearing on behalf of the  appellant in Civil Appeal No. 4908 submitted that in the facts and  circumstances of this case the High Court should not have made adverse  comments as regard the functioning of the Trust.

       The learned counsel appearing on behalf of the appellants in Civil  Appeal No. 4910 and 4911 would inter alia submit that keeping in view the  fact that the Trust issued advertisements which were published in various  newspapers in the year 1991 declaring availability of educational sites in the  colony in question, it cannot be said, that the respondents No. 1 and 2 were  not in the know thereof.  It was submitted that the appellants upon due  enquiry satisfied themselves about the title of the DLF whereafter only they  purchased the lands in question bona fide and for valuable considerations  within the knowledge of the State of Haryana and as at no point of time the  State of Haryana objected thereto, the purported impugned directions issued  in the year 1994 and 1996 could not have given retrospective effect and  retrospective operation with effect from 7.8.1991.  

       Mr. Mahendra Anand, the learned counsel appearing on behalf of the  Respondent Nos. 1 and 2 would, on the other hand, submit that although  there does not exist any express bar on transfer of lands by the owners  thereof by creating third party or fourth party interest, the same must be  inferred having regard to the scheme of the said Act.  The learned counsel

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would contend such a scheme would appear not only from the interpretation  clauses of the Act but also from Section 7 thereof as also the rules framed  thereunder and the licences granted pursuant thereto or in furtherance  thereof.  According to the learned counsel having regard to the scheme of  the act, the Court should apply the rule of purposive construction so as to  hold that the licensee itself was bound to construct schools, hospitals,  community centres etc. at its own cost.  It was submitted that if the State can  take over the lands without payment of any compensation, it must  necessarily be held that it has also the concomitant right to keep control  thereover which would include imposing restriction on transfer of the said  land.  The owner of the land by necessary implication, the learned counsel  would urge, was not entitled to exercise any right over the property and its  right to use the same was restricted to get constructions raised through a  third party wherefor also it has itself to incur costs.  Mr. Anand would  contend that the extent of regulation can further be judged by the fact that a  colonizer is not entitled to enter into a profitable venture, the reasonable  profit being restricted to 15% by the Legislature and thus in the event the  owner could create third party and fourth party interests, the same would  defeat the very purpose and object of town planning.     

       The said Act was enacted to regulate the use of land in order to  prevent ill plant and haphazard urbanization in or around towns in the State  of Haryana.  It came into force with effect from 16th November, 1971 except  Section 10 thereof which came into force on 30th January, 1975 when the  State Act received the assent of the Governor of State of Haryana.

       ’Colony’ has been defined in Section 2(c) of the said Act in the  following terms:

"colony" means an area of land divided or  proposed to be divided into plots or flats for  residential, commercial or industrial purposes  subject to certain restrictions specified therein."

       Colonizer has been defined in Section 2(d) thereof which reads thus:

"(d)    "colonizer" means an individual, company  or association or body of individuals, whether  incorporated or not, owning or acquiring or  agreeing to own or acquire, whether by purchase  or otherwise land for converting it into a colony  and to whom a licence has been granted under this  Act;"

       "Development Works" in terms of Section 2(e) would mean internal  and external development works.

       "External Development works" and "internal development works"  have been defined in Section 2(g) and 2(i) of the Act as under:

"(g)    "external development works" include  sewerage, drains, roads and electrical works which  may have to be executed in the periphery of, or  outside, a colony for the joint benefit of two or  more colonies;

(i)     "internal development works" means â\200\223  

(i)     metalling of roads and paving of  footpaths; (ii)    turfing and plantation with trees as  open spaces; (iii)   street lighting;

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(iv)    adequate and wholesome water  supply; (v)     sewers and drains both for storm and  sullage water and necessary provision  for their treatment and disposal; and (vi)    any other work that the Director may  think necessary in the interest of  proper development of a colony;

Interpretation clauses except Section 2(g) having regard to user of  expression "means" can neither be construed liberally nor can be held to be  exhaustive ones.  

       It is not in dispute that DLF is a colonizer.  It is further not in dispute  that licences had been granted to it for the construction of a colony.  It also  stands admitted that schools, hospitals, community centers and other  community buildings were required to be constructed in the colony in terms  of the licences granted under the Act.

       Section 3 of the said Act provides for application for licence and grant  thereof.  Sub-section (2) of Section 3 clearly states that the Director before  granting the licence may enquire into the title of the land as also capacity of  the colonizer to develop a colony.

       Such enquiry is also required to be made having regard to the plan  regarding development works to be executed in a colony and in conformity  with the development schemes of the colonies of the neighbouring areas.   

       In terms of sub-section (3) of Section 3 of the said Act, the Director  upon arriving at a satisfaction as regard the requirements specified in Clause  (a) to (f) would grant licence subject to the licensee’s furnishing a bank  guarantee and giving an undertaking as specified in clause (a) thereof.

       The relevant provision of Section 3(3) of the said Act reads thus: "(3)    After the enquiry under sub-section (2), the  Director, by an order in writing, shall â\200\223  

(a)     grant a licence in the prescribed form, after  the applicant has furnished to the Director a bank  guarantee equal to twenty-five per cent of the  estimated cost of development works as certified  by the Director and has undertaken - -

(i)     â\200¦..

(ii)    â\200¦..

(iii)   the responsibility for the maintenance and  upkeep of all roads, open spaces, public park  and public health services for a period of  five years from the date of issue of the  completion certificate unless earlier relieved  of this responsibility and thereupon to  transfer all such roads, open spaces, public  parks and public health services free of cost  to the Government or the local authority, as  the case may be;

(iv)    to construct at his own cost, or get  constructed by any other institution or  individual at its cost, schools, hospitals,  community centers and other community  buildings on the land; set apart for this  purpose, or to transfer to the Government at

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any time, if so desired by Government, free  of cost the land set apart for schools,  hospitals, community centers and  community buildings, in which case the  Government shall be at liberty to transfer  such land to any person or institution as it  may deem fit.

       Section 7 prohibits advertisement and transfer of plots and reads as  under:

"7.     Prohibition to advertise and transfer plots. â\200\223  Save as prescribed in Section 9, no person shall â\200\223  

(i)     without obtaining a licence under Section 3  transfer or agree to transfer in any manner  plots in colony or make an advertisement or  receive any amount in respect thereof;

(ii)    erect or re-erect any building in any colony  in respect of which a licence under Section 3  has not been granted;

(iii)   erect or re-erect any building other than for  purpose of agriculture on the land sub- divided for agriculture as defined in clause  (aa) of section 2 of this Act."

       The State of Haryana in exercise of its power under Section 24 of the  said Act made the Haryana Development and Regulation of Urban Areas  Rules, 1976 (hereinafter referred to as ’the Rules’).  Rule 10 provides that  the applicant for grant of a licence would be required to fulfil certain  conditions laid down therefor.  Rule 11 specifies the conditions required to  be fulfilled by the applicant.  Sub-rule (e) of Rule 11 is identically worded  with Section 3(3)(a)(iv) of the Act.   

       Licence to a colonizer is granted in form LC-IV.  Condition No. (b) of  the licence again is in identical terms with Section 3(3)(a)(iv) of the said  Act.   

       Although the object of the said Act is laudable but does it mean that  with a view to achieve the same the regulatory provisions contained therein  should be construed as a total prohibition on transfer of land not only in  relation to those which are required for development works but also to  schools, hospitals, community centers and other community buildings, is the  core question involved in these appeals.   

       Construction of schools, hospitals and community centres and other  community buildings do not come within the purview of the term  ’development works’.  They come within the purview of the term  "Amenities".  Only in relation to the development works the colonizer is  bound to pay the development charges, carry out and complete development  works.  He has also the responsibility to maintain the same for a period of  five years from the date of issue of the completion certification whereafter,  the same is required to be handed over to the Government or the local  authority as the case may be, free of cost.                    At the outset, we may notice that the cost of development works  indisputably is to be raised from the plot holders, but as construction of  schools, hospitals, community centres and other community buildings do not  come within the purview of the term ’development works’, the costs therefor  are not to be borne by them.  

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       The expression "Development Work" as noticed hereinbefore is not  synonymous with "Amenity".  The expression "Amenity" has been used  only in proviso appended to Clause (v) of Section 3(3)(a) and Rule 2(b) of  the Rules.   Rules are subservient to the Act, although they may be read con- jointly with the Act, if any necessity arises therefor. Even Rule 5 specifies  the obligation of the colonizer as regard providing for the development  works.  The expression "amenity" as defined in Rule 2(b) of the Rules is  wider than "development works".  No principle of construction of statute  suggests that a wider expression used in the rule may be read in the Statute  employing narrower expression.  Even in the rule the said expressions have  been used for different purposes.  The licence, also does not postulate that all  amenities must be provided by the colonizer at its own expense.  If the terms  ’Development Works’ and ’Amenity’ are treated as carrying the same  meaning, the plot holders may be held to be bound to meet the costs for  construction of schools, hospitals, community centres etc.  The cost of  construction in terms of the said provisions thereof is to be borne by DLF or  its nominees.   

       Right of transfer of land is indisputably incidental to the right of  ownership.  Such a right can be curtailed or taken away only by reason of a  statute.  An embargo upon the owner of the land to transfer the same in the  opinion of this Court should not be readily inferred.  Section 3(3)(a)(iv) of  the Act does not expressly impose any restriction.  The same is merely a part  of an undertaking.  Assuming that a prohibition to transfer the land can be  read therein by necessary implication, it is interesting to note that the  consequence of violation of such undertaking has not been specified.  In  other words, if a transfer is made in violation of the undertaking, the statute  does not provide that the same would be illegal or the transferee would not  derive any title by reason thereof.   

The right of a transferee, however, would be subject to the building  laws or regulatory statute relating to user of the property.  In terms of the  said Act, in the event the Government, takes over the plots it would be at  liberty to transfer such land to any person or institution including a local  authority as it may deem fit.  Purpose of such a clause, therefore, is to ensure  that schools, hospitals, community centres and other community buildings  are established at the places reserved therefor in the sanction plan but there  does not exist any embargo as regards the person or persons who would run  and manage the same.

       A regulatory act must be construed having regard to the purpose it  seeks to achieve.  State as a statutory authority cannot ask for something  which is not contemplated under the Act.  A statute relating to regulation of  user of land must not be construed to be a limitation prohibiting transfer of  land which does not affect its user.

       The plan provides that schools, hospitals etc. would be located at  particular sites.  When that purpose is satisfied, the Court in the name of  interpretation would not make a further attempt to find out who did so.    

       It is not in dispute that respondent Nos. 1 and 2 have sought to impose  such a ban specifically by reason of the impugned circulars issued in the  years 1994 and 1996, which in unmistakable terms go to show that even  according to them such a bar did not exist prior thereto.  It is accepted that  even the concerned respondents had recognised at least three transfers.  If  transfer of the sites reserved for construction of school was prohibited under  the statute, it is axiomatic that in absence of any provision contained therein,  the respondent could not exercise any power of regularizing such  transaction.  A transfer prohibited by a statute would be illegal and not  irregular.  Once it is held that such transfer would only be ’irregular’ which  can be cured, it would necessarily mean that there was no absolute statutory  bar in relation thereto.  The building plans which were submitted on various  days in 1992 and onwards had been accepted and sanctioned.  If it be held  that such transfers by the DLF Qutab were illegal, there was no occasion for  the respondents No. 1 and 2 herein to pass the building plans keeping in

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view of the fact that transferee thereof did not acquire any title whatsoever.   Such a right of transfer to third parties to raise construction having been  accepted by the respondents No. 1 and 2 prior to 1994, it does not now lie in  their mouth to contend that there existed a statutory bar.  The primal  question is as to whether by reason of an executive fiat, a right to transfer  one’s own property could be curtailed?  The answer to the said question  must be rendered in the negative.   

Expropriatory statute, as is well known, must be strictly construed.   

       In terms of Section 3 of the Act, a colonizer has to construct schools,  hospitals, community centres and community buildings at its own cost or to  get the same constructed by any other institution at its cost and for the said  purpose lands have to be set apart.  However, in the event the same is not  done within a reasonable time, the State would be at liberty to take over the  lands and fulfil the said objects as specified in the sanctioned plan.  The  power of the Government to take over the lands must be held to be restricted  and would be applicable only in a case where community services had not  been developed.  In other words, where the community services had not  been developed the question of acquisition thereof by the Government  would arise and not in any other situation.   

       The High Court in our opinion, committed a manifest error in holding  that despite the fact that the statute uses two different expressions as regards  cost to be incurred for construction of schools, hospitals and community  centres etc. the effect thereof would be the same.  In case of licensee the  words used are ’at his own cost’ whereas in respect of the others, the words  used are ’at its cost’.  When different terminologies are used by the  legislature it must be presumed that the same had been done consciously  with a view to convey different meanings.  Had the intention of the  legislature been, as has been held by the High Court, that the cost for such a  construction has to be borne by the licensee irrespective of the fact as to  whether it undertakes such constructions itself or get them constructed by its  contractors, there was absolutely no reason as to why clearer terms could not  be used by the legislature.  The words ’at his own cost’ refer to the licensee,  whereas in the case of his nominee being either an institution or a person, as  the case may be, the words ’at its cost’ have been used.  The expression "at  his own cost" and "at its cost" must be held to have separate and distinct  meaning.  They are not meant to aim at the same person.   

       The words ’institution’ or ’person’ evidently do not refer to a building  contractor as understood in ordinary parlance.  It must be held to carry  different meanings.  Indisputably, any person can get constructions made on  his own land either under his own supervision or through a contractor.  For  the purpose of raising constructions through a contractor, permission of the  statutory authorities is not necessary.  In that view of the matter, clearly the  legislature did not contemplate that the words ’any other institution or  individual’ refer only to a building contractor for the purpose of construction  of the buildings alone and for no other purpose.   

       It may be that the agreement is between DLF and the respondent No.  2 but the same would not mean that the transferees from the DLF would not  be bound by the terms and conditions of the licence as the statutory  obligations of the licensee would percolate down to its transferees as they  would be claiming interest under the licensee.  In terms of the provisions of  the said Act, Rules and the condition of licence, the Director Town and  Country Planning as also the State of Haryana would be entitled to exercise  control in terms of the statutory provisions over the subsequent transferees.   Creation of third party or fourth party interest, it is axiomatic, would not by  itself take away the right of control of the State and other regulatory  measures which can be taken under the statute.   

       In other words, the liability of the colonizer in the matter of  construction of schools, hospitals etc. would continue in the event, he or his  transferees fail to comply the conditions of licence and he would be

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subjected to the consequences laid down therefor in Section 10 of the said  Act.   

The Government in other words would continue to regulate the user  for which the site had been earmarked and upon failure of the licensee or his  transferees to comply with such statutory obligation, the Government would  be entitled to take over such land.

       The question may be considered from another angle.  A statutory  obligation had been placed upon the colonizer.  The right of colonizer to  transfer the land would be subject to such obligation inasmuch as it cannot  transfer a right higher than it has.  The right to transfer the land shall carry  with it the obligation of the owner thereof to use the land in a particular  manner as laid down in the statute as also the terms of the licence.  It is also  pertinent to note that a draft rule was published on 13th December, 1991 in  terms whereof a condition was imposed in condition (e) in the licence  granted in form LC-IV to the following effect:

"No third party rights will be created without  obtaining the prior permission of the Director"

       The said Amendment itself goes to show that the legislature sought to  remedy a mischief which was existing prior thereto.  Such a step on the part  of the State of Haryana is also a pointer to the fact that even according to it,  prior permission therefor was not required.                  Basic Rule of interpretation of Statute is that the Court shall not go  beyond the statute unless it is absolutely necessary so to do.  Rule of  ’purposive constructions’ would be resorted to only when the statute to  observe or when read literally it leads to manifest injustice or absurdity.

       It may be true that 55%  of the acquired lands were plottable but as to  whether D.L.F. has recouped its investments by transferring the plottable  land to the plot holders is a question which, in our opinion, is irrelevant for  the purpose of construction of statute.  The High Court, in our opinion,  therefor, adopted a wrong approach.   

       It is also incorrect to contend that that sub clauses (iii) and (iv) of  Section 3(3)(a) of the Act stand on a different footing.  A bare perusal of the  said provision would clearly show they are not.  In terms of clause (iii), a  colonizer is responsible to maintain and upkeep of all roads, open spaces,  public parks and public health services for a period of five years from the  date of issue of the completion certificate whereas in terms of clause (iv), a  colonizer undertakes to construct schools, hospitals, community centers and  other community buildings or get the same constructed by any other  institution or individual.  Sub-clauses (iii) and (iv) of Clause (a) of sub- section (3) of Section 3 of the said Act, thus, aim at different purposes.

       We do not also agree with the submission of Mr. Anand to the effect  that as regards development of community sites, the State acts as a parens  patriae.  The State Act have been enacted for regulation of user of land so  that the development of a town may not haphazard.  It seeks to achieve the  purposes mentioned in the preamble and no other.

       In these cases, we are not concerned with the question as to whether  the provisions of the Transfer of Property Act are applicable in the State of  Haryana or not.  Ownership of land jurisprudentially involves a bundle of                  rights.  One of such rights is the right to transfer.  Such a right, being  incidental to the right of ownership; having regard to Article 300A of the  Constitution of India, cannot be taken away save by authority of law.     

       We may now consider the decisions whereupon Mr. Anand placed  strong reliance.

       In Charan Lal Sahu Vs. Union of India [(1990) 1 SCC 613] this Court

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was considering the provision of Bhopal Gas Leak Disaster (Processing of  Claims) Act, 1985.  The question which arose for consideration therein was  as to whether the State has the requisite jurisdiction and power as a ’parent’  to fight litigation for the victims so as to uphold their fundamental rights.  A  question as to whether the State Act is ultra vires the Constitution also arose  for consideration.  The Court with a view to uphold the constitutionality of  the Act held that the Scheme of the Act suggests an obligation on the part of  the State.  The court, in the fact situation obtaining therein, took recourse to  the principles of liberal interpretation holding:        "â\200¦.The freedom to search for ’the spirit of the Act’  or the quantity of the mischief at which it is aimed  (both synonymous for the intention of the  Parliament) opens up the possibility of liberal  interpretation "that delicate and important branch  of judicial power, the concession of which is  dangerous, the denial ruinous". Given this freedom  it is a rare opportunity though never to be misused  and challenge for the judges to adopt and give  meaning to the Act, articulate and inarticulate, and  thus translate the intention of the Parliament and  fulfil the object of the Act. After all, the Act was  passed to give relief to the victims who, it was  thought, were unable to establish their own rights  and fight for themselves. It is common knowledge  that the victims were poor and impoverished. How  could they survive the long ordeal of litigation and  ultimate execution of the decree or the orders  unless provisions be made for their sustenance and  maintenance, especially when they have been  deprived of the right to fight for these claims  themselves? We, therefore, read the Act  accordingly."

       The said decision, therefore, was rendered in a completely different  fact situation and is not applicable to the fact of the present case.

       In Shamarao V. Parulekar Vs. The District Magistrate, Thana,  Bombay and two others [(1952) 3 SCR 683] this Court was considering the  provisions of Preventive Detention Act.  In that case the Court took recourse  to literal meaning.  It was held that the Court should not interpret an act in  such manner which would defeat the provisions thereof whose meaning is  quite plain.   

No exception to the said ratio can be taken.

       In The State of Punjab Vs. Ajaib Singh and Another [(1953) 4 SCR  254] this Court was considering the constitutional validity of the provisions  of Abducted Persons (Recovery and Restoration) Act in terms whereof  police officers were entitled to take abducted person to the custody of the  officer in charge of the camp.  The construction of the terms ’arrest and  detention’ came up for consideration and in that situation it was held:

"Sri Dadachanji contends that such consideration  should not weigh with the court in construing the  Constitution. We are in agreement with learned  counsel to this extent only that if the language of  the article is plain and unambiguous and admits of  only one meaning then the duty of the court is to  adopt that meaning irrespective of the  inconvenience that such a construction may  produce. If, however, two constructions are  possible, then the court must adopt that which will  ensure smooth and harmonious working of the  Constitution and eschew the other which will lead  to absurdity or give rise to practical inconvenience

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or make well established provisions of existing law  nugatory."

                In Tirath Singh Vs. Bachittar Singh and Others [(1955) 2 SCR 457] an  election dispute was the subject matter of the lis.  The question which arose  for consideration therein was as to whether the principles of natural justice  had to be read in the proviso appended in the Section 99(1)(a) of the Act.   Repelling such contention it was held: "But it is a rule of interpretation well-established  that, "Where the language of a statute, in its  ordinary meaning and grammatical construction,  leads to a manifest contradiction of the apparent  purpose of the enactment, or to some  inconvenience or absurdity, hardship or injustice,  presumably not intended, a construction may be  put upon it which modifies the meaning of the  words, and even the structure of the sentence".  (Maxwell’s Interpretation of Statutes, 10th Edition,  page 229). Reading the proviso along with clause  (b) thereto, and construing it in its setting in the  section, we are of opinion that notwithstanding the  wideness of the language used, the proviso  contemplates notice only to persons who are not  parties to the petition."

       In Canara Bank vs. Nuclear Power Corporation of India Ltd. & Others  [(1995) Supp. 3 SCC 81], the question which fell for consideration of this  Court was as to whether the Company Law Board performs judicial  functions that are ordinarily performed by courts under Section 9-A of the  Act and in that context it was held to be a court.   The said decision cannot  be held to have any application in the instant case.

       The said decisions having been rendered on the fact of the matters  involved therein and cannot be held to have any application whatsoever in  the instant case.

       The question which now arises for consideration is as to whether  clause (t) of the licence agreement can be read as a restriction of the right to  transfer the community sites.  Clause (t) of the licence agreement reads as  under:

(a)    That the owner shall drive maximum net  profit @ 15% of the total cost of  development of a  colony after making provisions of statutory taxes.   In case the net profit exceeds the 15% after  completion of the project period, surplus amount  shall either be deposited within two months in the  State Government Treasury by the owner or he  shall spend this money on further amenities/  facilities in his colony for the benefit of the  residents therein."

       The cap on profit, in our opinion, is irrelevant for the purpose of  construction as regards the right of colonizer to transfer the land.  Clause (t)  of the Licence, in other words, cannot be construed to put in an implied  limitation of the owner of the land to transfer its land.  It is for the State of  Haryana to invoke the said clause if and when any occasion arises therefor.  

       Furthermore, having regard to the fact that the DLF had made its  intention to transfer the lands known through advertisements in the widely  circulated newspapers; offerees must be held to have exercised their ’due

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diligence’ at the time of acquisition of interest in the plots and in that view  of the matter such interest cannot be put in jeopardy unless it is found out  without any difficulty whatsoever that the colonizer had no right to transfer  the said land and the effect of such transfer would lead to illegality.  The  fourth parties are bona fide transferees for value and thus their right of  claiming interest cannot be jeopardized by reason of executive instructions  or otherwise particularly in absence of any pleadings by the respondents No.  1 and 2 to the effect that fraud has been practised by the colonizer or the  parties colluded with one another to achieve an illegal purpose.

       For the reasons aforementioned the impugned judgment cannot be  sustained which is set aside accordingly.   

       Before parting, however, we may observe that in the event, it is found  that the colonizer or the transferees had failed to discharge their obligations  in terms of the said Act, Rules and conditions of licence, it would be open to  the prescribed authorities to take such action against them as is permissible  in law.   

       For the foregoing reasons, the appeals are allowed but in the fact and  circumstances of the case, there shall be no order as to costs.