IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.8500-8501 OF 2001

Shanti Sports Club & another    … Appellants

Versus

Union of India & others   … Respondents

With

Contempt Petition Nos. 252-253 of 2001

J U D G M E N T

G.S. Singhvi, J.

1. These  appeals  filed  against  order  dated  21.8.2001  of  the  

Division Bench of Delhi High Court whereby it refused to interfere  

with the Central Government’s decision not to exercise discretion  

under Section 48(1) of the Land Acquisition Act, 1894 (for short  

‘the Act’) to withdraw from the acquisition of land comprised in  

khasra  Nos.35,  369/36,  37,  38,  367/21  and  365/33  of  Village  

Masudpur,  Tehsil  Mehrauli,  Delhi  are  illustrative  of  how  the  

litigants use the courts process for frustrating the acquisition of  

land for a public purpose for years together and seek equity after  

raising illegal construction over the acquired land under the cloak  

of interim order(s) passed by one or the other court.

Background Facts:

2. In  the  aftermath  of  partition  of  the  country,  lakhs  of  

people  were  forced  to  leave  their  habitat,  properties,  trade,  

business, etc. in the territory which became Pakistan.  Most of them  

came  and  settled  in  northern  parts  of  the  country,  particularly  

Punjab and Delhi. Out of sheer compulsion, they constructed houses,  

etc. without proper layouts and planning.  Initially, the Government  

did not pay much attention to the haphazard construction of houses  

and the growth of unplanned colonies, but with rapid increase in  

population of the city on account of influx of thousands of people  

from  other  parts  of  the  country,  it  was  realized  that  planned  

development of the capital city is  sine qua non for its healthy  

growth.  Keeping this in mind, the Central Government created Delhi  

Development  Authority  (DDA)  and  also  set  up  Town  Planning  

Organization, which was entrusted with the task of giving advice on  

all matters pertaining to planning in the territory of Delhi.   

3. The master plan of Delhi was notified in 1962.  It envisaged  

development  of  Delhi  in  different  segments,  i.e.,  residential,  

commercial,  institutional,  industrial  etc.  in  a  scientific  and  

modern way.   For implementing the concept of planned development in  

accordance with the notified master plan, large tracts of land were  

acquired vide notifications dated 13.11.1959, 24.10.1961, 4.4.1964,  

16.4.1964 and 23.1.1965 issued under Section 4(1) of the Act.  Writ  

petitions filed by those affected by the first notification were  

dismissed by the High Court and their appeals were dismissed by this  

Court in the case titled Aflatoon v. Lt. Governor of Delhi (1975) 4  

SCC 285, with a categorical finding that the planned development of

Delhi is a public purpose for which large tracts of land could be  

acquired.

4. The acquisitions made in furtherance of other notifications  

were also challenged by the land holders and other affected persons.  

C.W.P. No.963/1980 filed by one Ved Prakash was dismissed by the  

High Court.  However, the special leave petition was entertained by  

this Court and leave was granted.   

5. During the pendency of the civil appeal arising out of the  

special leave petition filed by Ved Prakash and some writ petitions  

which were directly entertained by this Court, a Division Bench of  

the High Court made a reference to the Full Bench for considering  

the questions whether the acquisition proceeding should be treated  

as having been abandoned on account of delay in making the awards  

and whether more than one award can be passed in respect of the land  

covered by the same notification.  The Full Bench dismissed all the  

writ petitions and related miscellaneous applications vide judgment  

titled  Roshanara  Begum  v.  Union  of  India,  AIR  1996  Delhi  206.  

Appeals filed against the judgment of Full Bench were dismissed by  

this Court – Murari v. Union of India (1997) 1 SCC 15.   

6. The  land  which  is  subject  matter  of  these  appeals  was  

acquired  vide  notification  dated  23.1.1965.   Declaration  under  

Section 6 was published on 23.12.1968, notices under Sections 9 and  

10 were issued in 1976 and the award was made on 22.12.1980.

7. Shri Amrit Lal Khanna, who is said to have purchased 26  

bighas of land comprised in khasra Nos.35, 369/36 and 37 in Village  

Masudpur, Tehsil Mehrauli, Delhi along with three others, namely,  

S/Shri  Srivastava,  Naresh  Kumar  and  Gopal  Kishan  from  Shri  

Parmeshwar  Lal  vide  sale  deed  dated  31.1.1969  challenged  

notification dated 23.1.1965 in W.P. No.1753/1980.  He also filed an  

application for interim relief.  By an order dated 9.12.1980, the  

High  Court  restrained  the  respondents  in  the  writ  petition  from  

dispossessing  the  petitioner.   The  writ  petition  was  finally  

dismissed by the Full Bench along with other cases.   

8. While the writ petition filed by Shri Amrit Lal Khanna was  

pending, Shri Satish Khosla (appellant No.2 in one of the appeals)  

got  registered a  company in  the name  and style  of Shanti  India  

Private Limited under the Companies Act, 1956 and a society in the  

name of Shanti Sports Club under the Societies Registration Act,  

1860.    Between  1990-1993,  Shri  Satish  Khosla  appears  to  have  

entered into some arrangement/agreement with Shri Amrit Lal Khanna  

and other land owners and got possession of land bearing khasra  

Nos.35,  369/36,  37,  38,  367/21  and  365/33  of  Village  Masudpur,  

Tehsil  Mehrauli,  Delhi  which  had  already  been  acquired  by  the  

Central Government.  Thereafter, he got constructed complex over the  

acquired land in the name of appellant No.1 without even making an  

application to the competent authority for sanction of the building  

plan.    He  did  so  because  he  knew  that  if  an  application  for  

sanction of the building plan was to be made, the same would be  

rejected in view of the prohibition contained in Section 3 of the

Delhi Lands (Restrictions on Transfer) Act, 1972 (for short ‘the  

1972 Act’) against transfer of the acquired land and the concerned  

authorities may stall the clandestine construction activities.  

9. With a view to protect his possession of the acquired land  

and illegal construction raised over it, Shri Satish Khosla filed  

W.P. No.4777/1993 in the name of Shanti Sports Club of which he  

himself  was  described  as  President  and  Shri  Sunil  Nagar,  Member  

Secretary  of  the  Club  for  issue  of  a  mandamus  to  the  Central  

Government to release the land under Section 48(1) of the Act.  In  

that petition, it was claimed that with the construction of a sports  

complex, the purpose of acquisition, i.e., planned development of  

the area has already been served.

10. At this stage, it is appropriate to note that before filing  

W.P.  No.4777/1993,  Shri  Satish  Khosla  got  filed  two  suits  for  

injunction.  The  first  suit  bearing  No.3318/1991  was  filed  on  

29.10.1991 in the name of Shanti India Private Limited with the  

prayer that DDA be restrained from digging the land or constructing  

gates on the road leading to Shanti Garden.  In that suit, it was  

pleaded  that  the  plaintiff  is  a  company  registered  under  the  

Companies Act, 1956; that it purchased 38 bighas 13 biswas of land  

comprising  in  khasra  Nos.35,  369/36,  37,  38,  367/21  and  365/33  

situated in Village Masudpur, Tehsil Mehrauli, Delhi and floated  

Shanti Sports Club of India which formed a cricket academy with a  

view to provide cricketing facility for its members.  It was then  

averred that on 28.10.1991, DDA started digging a road, which runs

from  Andheria  Modh  to  Airport  with  a  view  to  raise  a  wall  for  

blocking  the  entire  road  and  rendering  the  suit  property  

inaccessible.   Along  with  the  suit,  the  plaintiff  filed  an  

application for temporary injunction.  By order dated 4.1.1992, the  

Court  permitted  DDA  to  raise  the  wall  without  obstructing  the  

plaintiff’s access to the suit property.  In the second suit bearing  

No.1544/1993 which was filed on 13.7.1993, appellant No.2 herein  

joined S/Shri Atma Ram and Amrit Lal Khanna as plaintiffs and prayed  

that DDA be restrained from dispossessing them or interfering with  

their  possession  or  demolishing  or  sealing  any  part  of  existing  

structure.  The subject matter of second suit was identical to the  

one for which earlier suit had been instituted.  In the plaint, all  

the plaintiffs were described as owners of the property measuring 38  

bighas 13 biswas and it was pleaded that a sports club in the name  

of Shanti Sports Club of India was built by plaintiff No.3, Shri  

Satish  Khosla.   It  was  alleged  that  officers  of  the  DDA  have  

demolished certain structures in Village Kishangarh on 29.6.1993 and  

threatened to demolish the suit property.  In the second suit also  

an order of injunction was passed on 15.7.1993.  

11. After filing Writ Petition No.4777/1993, Shri Satish Khosla  

instituted third suit bearing No.2865/1995 in his own name and that  

of Shri Amrit Lal Khanna claiming that they were Bhumidars of khasra  

Nos.35, 369/36 and 37 of Village Masudpur, Tehsil Mehrauli, Delhi,  

total  measuring  26  bighas  6  biswas;  that  the  suit  property  was  

surrounded by a boundary wall with an iron gate; that plaintiff  

No.1-Satish  Khosla  floated  the  Shanti  Sports  Club  which  runs  a

cricket academy for its members and that the officers of the DDA  

have  threatened  to  demolish  the  boundary  wall  and  take  forcible  

possession of an area of about 250 sq. yds. on the pretext that it  

formed part of khasra Nos.460, 368 and 36, which was earmarked for  

construction of a dispensary.  In the third suit, the court passed  

an order of temporary injunction on 12.12.1995 restraining DDA from  

dispossessing the plaintiffs or demolishing the boundary wall.

12. By filing Writ Petition No.4777/1993, Shri Satish Khosla had  

hoped that he will be able to convince the High Court to ignore the  

gross irregularities and illegalities committed by him in securing  

possession of the acquired land and raising construction over it and  

pass an order for protection of the existing structure and also  

direct the Central Government to release the land from acquisition  

on which sports complex had already been constructed, but his hopes  

were belied because the High Court did not entertain the prayer for  

interim relief.  Undeterred by this unexpected adverse result, Shri  

Satish  Khosla  got  filed  C.M.  No.8269/1993  in  Writ  Petition  

No.1753/1980  with  the  prayer  that  the  government  be  directed  to  

release the land from acquisition because the same has already been  

developed.  The Full Bench of the High Court considered similar  

prayer made on behalf of other land owners, referred to the judgment  

of this Court in Gandhi Grah Nirman Sahkari Samiti Ltd. V. State of  

Rajasthan (1993) 2 SCC 662 and held:

“…… So, even if some land has been developed by the land  owner  according  to  his  own  notions  and  may  be  the  construction  raised  by  him  on  the  said  land  is  also  serving  some  public  purpose,  still  that  cannot  be  a  substitute for planned development of Delhi which object

is visualized by the authorities.  If the public object  for  which  the  land  is  sought  to  be  acquired  by  the  authorities is justified, it cannot be frustrated because  the land owner has developed the land and is utilising the  land for some other public purpose.  So, this contention  also does not survive in view of the law held down by the  Supreme Court.”

13. The  Full  Bench  separately  dealt  with  Writ  Petition  

No.1753/1980  and  C.M.  No.8269/1993  and  dismissed  the  same  by  

recording the following observations:

“181. Most of the points raised in this writ petition  are common with the main points already discussed by us.  However, Mr. G. L. Sanghi, Senior Advocate, who appeared  for the applicant in C.M. 8269/93 has urged that the land  in question has been developed into a sports complex and  modern  amenities  have  been  provided  and  it  would  be  national  waste  in  allowing  such  constructions  to  be  demolished.

182. It is urged that the applicant has acquired this  land in 1969 before coming into force of the Delhi Land  (Restrictions on Transfer) Act, 1972 and thus, there was  no bar in the transferee raising constructions. However,  it is the admitted fact that all these constructions have  been  raised  after  issuance  of  the  notification  under  Section 4 of the Act. These constructions have been raised  obviously with complete knowledge of the fact that this  land is liable to be acquired for public purpose. It is  true that transferee of the land such as the applicant is  entitled to same benefits and rights as the transferor  (See Smt. Gunwant Kaur v. Municipal Committee, Bhatinda,  AIR 1970 SC 802). However, unless and until it is shown  that public purpose for which the land was sought to be  acquired by issuing a notification under Section 4 and  declaration under Section 6 has elapsed, it would not be  possible for this Court to hold that mere fact that land  has been developed by the petitioner/applicant should lead  to the conclusion that public purpose for which the land  was sought to be acquired has been achieved. It is pointed  out to us that this particular land is required for the  residential scheme of Vasant Kunj. So, it cannot be said  that the sports complex built up by the applicant in the  land in question is in consonance with the public purpose  for which the land has been earmarked in the scheme of the  Government.  Thus,  we  do  not  think  that  the  petitioner/applicant  can  legally  get  the  notification  quashed  on  any  valid  grounds  in  the  present  matter.

However, the petitioner/ applicant is at liberty to make  any representation to the authorities for getting the land  released and it is for the authorities to examine whether  in view of the modern sports complex having been brought  into existence in the land in question could it serve the  public purpose of acquiring this land for that particular  scheme or the scheme is liable to be modified or amended  in  respect  of  the  land  in  question.  However,  the  acquisition proceedings are not liable to be quashed on  any such plea.”

[Emphasis added]

14. In the appeals preferred against the judgment of the Full  

Bench, the land owners reiterated the prayer for issue of direction  

to the Government to release their land by asserting that the same  

has  already  been  developed  by  constructing  factories,  workshops,  

godowns,  schools,  residential  houses/quarters,  farm  houses  with  

modern facilities and sports complex.  This Court opined that the  

constructions  raised  by  the  appellants  would  be  regarded  as  

unauthorized because no sanction or permission is shown to have been  

obtained from the competent authority.  The Court then referred to  

an earlier judgment in State of U.P. v. Pista Devi (1986) 4 SCC 251  

and rejected the prayer for release of land by making the following  

observations:-

“Some  of  the  learned  counsel  for  the  appellants  also  submitted that even the land shown in green colour in the  master plan which has been sought to be acquired but it is  not understood as to for what purpose the said land is  being acquired. It was also submitted that there are a  large number of structures and complexes raised on the  land sought to be acquired in which schools, sports and  other  recreational  activities  are  going  on.  Shri  G.L.  Sanghi, learned counsel appearing for the appellants in  Civil Appeal arising out of SLP (C) No. 5771 of 1996 and  Civil Appeal arising out of SLP (C) No. 740 of 1996 as  well  as  other  advocates  appearing  for  some  other  appellants  submitted  that  there  exist  factories,  workshops,  godowns  and  MCD  school  besides  residential  houses  and  quarters  over  the  land  belonging  to  the  appellant Partap Singh situated at Roshanara Road, Sabzi  Mandi, Delhi which has been acquired and that there exists

modern and well-developed farmhouse with modern facilities  in the land belonging to the appellant Roshanara Begum,  where there are a good number of other structures and  fruit-bearing  trees.  Consequently  these  areas  do  not  require further development as they are already developed  and,  therefore,  the  said  land  should  be  released  from  acquisition. Mr Sanghi, learned counsel appearing for some  of the appellants urged that the appellant concerned had  developed  a  sports  complex  providing  modern  amenities  therein and if the same is demolished it would be a great  national  waste.  It  was,  therefore,  urged  that  such  complexes and built-up areas should be deleted from the  acquisition. It may be pointed out that in the master plan  the  land  indicated  in  green  colour  is  reserved  for  recreational facilities. The recreational facilities are  also  part  of  the  planned  development  of  Delhi  and  it  cannot be disputed that recreational amenities are also  part of the life of the people and an important feature of  a developed society. Therefore, no legitimate objection  can be made in the acquisition of such land which is shown  in  green  colour.  So  far  as  the  structures  and  constructions made on the land are concerned there is no  material to show that they were made before the issuance  of notification under Section 4 of the Act. It is also not  clear  whether  such  constructions  were  raised  with  or  without  necessary  sanction/approval  of  the  competent  authority.  No  grievance  therefore  can  legitimately  be  raised in that behalf as the same would be regarded as  unauthorised and made at the risk of the landowners. Here  a reference of a decision of this Court in the case of  State of U.P. v.  Pista Devi may be made with advantage,  para 7 of which reads as under: (SCC p. 258, para 7)

“It was next contended that in the large extent of land  acquired  which  was  about  412  acres  there  were  some  buildings here and there and so the acquisition of these  parts of the land on which buildings were situated was  unjustified since those portions were not either waste or  arable lands which could be dealt with under Section 17(1)  of the Act. This contention has not been considered by the  High Court. We do not, however, find any substance in it.  The Government was not acquiring any property which was  substantially covered by buildings. It acquired about 412  acres of land on the outskirts of Meerut city which was  described as arable land by the Collector. It may be true  that here and there there were a few super-structures. In  a case of this nature where a large extent of land is  being acquired for planned development of the urban area  it would not be proper to leave the small portions over  which some superstructures have been constructed out of  the development scheme. In such a situation where there is  real urgency it would be difficult to apply Section 5-A of  the Act in the case of few bits of land on which some

structures are standing and to exempt the rest of the  property from its application.”

In the present case also a large extent of land measuring  thousands of acres has been acquired and, therefore, it  would not be proper to leave out some small portions here  and  there  over  which  some  structures  are  said  to  be  constructed out of the planned development of Delhi. We  may,  however,  add  here  that  during  the  course  of  the  arguments Shri Goswami, learned counsel appearing for the  respondents-State  made  a  statement  that  the  Government  will consider each of the structures and take a decision  in that respect. We, therefore, leave this issue to the  discretion of the respondent.”

[Emphasis added]

15. By taking cue from the observations made by the High Court  

in last portion of paragraph 182 of its judgment and the statement  

made by the State’s counsel before this Court, which finds mention  

in the last part of para 21 of the judgment reported in (1999) 1 SCC  

15,  a  representation  was  made  on  behalf  of  appellant  no.1  on  

3.10.1997 to various functionaries of the Government and DDA for  

release of the land under Section 48(1) of the Act on the ground  

that several parcels of the acquired land have already been released  

in favour of Hamdard Public School, St. Xavier School, Sahabad State  

Extension Welfare Association, Village Pul Pehlad Ten Mehrauli and  

Sahabad Daulatpur.  Another representation was made on 3.6.1999 for  

release  of  the  land  covered  by  the  sports  complex.   These  

representations were considered in the meeting held in the office of  

the then Minister for Urban Development which was attended among  

others by the President of Shanti Sports Club and Vice Chairman of  

DDA and a decision is said to have been taken to de-notify the land  

in question and for regularization thereof in favour of appellant  

No.1.  The President of appellant No.1 is said to have been asked to

discuss the matter with the official of the DDA for working out the  

terms of regularization.  On 8.6.1999, the Private Secretary to the  

then  Urban  Development  Minister  sought  a  report  from  the  

Commissioner of Planning, Delhi Development Authority in order to  

enable the Hon’ble Minister to take appropriate decision.  On the  

same day, the concerned Minister recorded the following note in the  

file:-

“Extensive construction has taken place.  This must be  with full cooperation of the public servants concerned.

In accordance with the settled policy, no demolition can  or will be ordered.  At the last meeting, I indicated that  suitable  terms  of  regularization  be  settled  by  negotiations.  I would leave this now to my successor.”

16. The issue was then considered by the successor Minister in  

the Urban Development Department, who finally decided on 14.7.1999  

that  the  land  covered  by  the  sports  complex  cannot  be  released  

because the development on the land was made after completion of the  

acquisition proceedings and making of the award and also because the  

land  was  needed  for  ‘Vasant  Kunj  Residential  Project’.   This  

decision  was  communicated  to  the  appellants  vide  letter  dated  

9.6.2000, which reads as under:-

“No.J-13039/1/95/DDIB, Vol-II Government of India,  

Ministry of Urban Development & Poverty Alleviation, (Delhi Division)

Nirman Bhawan, New Delhi.

Dated 9th June, 2000 To

Shri Satish Khosla, President, Shanti Sports Club, Shanti Sports Complex, Vasant Kung, New Delhi-110 070.

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

Sir,

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

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

3. This issues with approval of the competent authority.

Yours faithfully, Sd/-

(R.C. Nayak) Under Secretary (DDVA)”

17. The appellants challenged the aforementioned decision of the  

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

grounds:

1. That  on  8th June,  1999,  the  then  Minister  for  Urban  

Development had taken final decision for de-notification of  

the land and regularization thereof in favour of appellant  

No.1  and  his  successor  could  not  have  overturned  that

decision.

2. The  decision  contained  in  letter  dated  June  9,  2000  is  

totally  devoid  of  reasons  inasmuch  as  while  refusing  to  

release the land in question in favour of appellant No.1, the  

Government did not take into account the fact that a huge  

sports complex had been built by spending substantial amount  

and demolition thereof would be injurious to vast section of  

the people which was benefited by the facilities available in  

the sports complex.

3. That similar representations made for release of land were  

entertained and accepted by the Government, but without any  

rhyme and reason, the appellants were discriminated and in  

this manner, their right to equality guaranteed under Article  

14 of the Constitution has been violated.

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

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

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

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

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

that the representation was finally rejected on 14.7.1999 because  

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

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

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

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

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

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

direction for release of their land.

19. In  a  separate  counter  affidavit  filed  on  behalf  of  DDA,  

details  of  various  litigious  ventures  undertaken  by  the  writ  

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

pleaded that the petitioners are not entitled for relief because  

they appear to have entered into some transaction with the land  

owners in violation of the negative mandate contained in Section 3  

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

because by taking advantage of interim order passed in Writ Petition  

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

counter affidavit it was averred that the construction was made in  

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

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

in question is partly residential and partly rural; that residential  

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

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

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

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

nurseries,  wireless  and  transmission,  forest  and  extractive  

industries and LNP are permitted.

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

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

dismissed both the writ petitions after threadbare consideration of  

various issues raised by the parties.  The Division Bench referred  

to  the  notings  recorded  in  the  file  in  the  context  of  

representations made by the appellants including note dated 8.6.1999  

recorded  by  the  then  Minister  for  Urban  Development  leaving  the

matter to his successor and observed:

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

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

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

raised in violation of various statutory provisions.  The Division  

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

area in question was shown partly residential and partly rural and  

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

recreational purposes is unauthorized.  The Division Bench observed  

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

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

recreational  and  for  that  purpose  master  plan  would   require

amendment in accordance with Section 11(A) of the Delhi Development  

Act,  1957,  which  provides  for  issuance  of  a  notice  inviting  

objections and suggestions with respect to the proposed modification  

and consideration thereof by DDA and Central Government.  

22. The Division Bench also considered the argument that as per  

the lay out plan of the Vasant Kunj, only 11 bighas 14 biswas was  

required for the housing scheme and the petitioners are prepared to  

part  with  that  portion  of  the  land  and  rejected  the  same  by  

recording the following observations:-

“……….Respondent no.5 in his counter affidavit dated August  5, 2000 has clearly stated that the land is required for  development schemes of the DDA. It is pointed out that  because of the illegal construction made by the petitions  during the operation of the restraint orders the housing  scheme of the DDA has been held up resulting in loss to  the public. The affidavit also alludes to the fact that  the land for peripheral road in Sector D-7 and land meant  for primary school and dispensary has been encroached upon  by  the  petitions.  According  to  the  affidavit,  the  permitted land use in the area is as follows:-

(1) Partly residential.

(2) Partly for rural use.

The  affidavit  goes  on  to  state  that  the  Technical  Committee of the DDA has mooted a proposal for change of  land use from rural use to 'residential use', keeping in  view  the  need  of  lakhs  of  applicants  who  are  on  the  waiting list for allotment of flats. The recommendation of  the Technical Committee is stated to have been accepted by  the  DDA  and  a  resolution  has  been  passed  recommending  change  of  user  of  23.08  hectares  of  land  behind  D-6,  Vasant Kunj from rural to residential use. In view of the  categorical stand of the DDA that the land is needed for  housing project, the argument of the petitioners that only  11 bighas and 14 biswas was required for residential use  fails. It has been noticed by the Supreme Court in Murari  vs. Union of India (supra) that there is inflow of more

than one lakh people every year to the city. It is also  noted  that  Delhi  is  an  ever  expanding  cosmopolitan,  commercial  and  industrial  city  where  millions  of  multifarious, national and international activities take  place. The Supreme Court also noticed that the city is  confronted with serious housing problems. As a sequitur,  it  was  found  that  planned  development  of  Delhi  is  a  continuous and unending process. Therefore, we cannot find  fault with the decision of the Government declining to  release the land from acquisition.”

23. In the concluding part of its order, the Division Bench took  

cognizance of written statement filed by Satish Khosla, President of  

Club in Suit No.3064/1996 titled as M/s Eli Lilly Ranbaxy Limited  

and others v. Satish Khosla wherein, the plaintiff had sought a  

decree  of  permanent  injunction,  restraining  the  defendant  from  

letting out garden for functions and parties during the currency of  

lease agreement entered by and between M/s Eli Lilly Ranbaxy Limited  

and Shri Satish Khosla in respect of cottage No.6.  The Division  

Bench noted that in paragraphs 4, 6 and 11 of the written statement,  

the  defendant  had  unequivocally  given  out  that  the  premises  are  

being used not only for sporting activities but for wedding parties,  

birthday  parties  and  other  festive  occasions  and  cottages  

constructed in the premises were being given to the affluent parties  

like  the  plaintiff,  several  diplomats  including  Deputy  High  

Commissioner of Pakistan, Ambassador of Kazakastan, that huge rent  

and other charges were being collected by the defendant from the  

plaintiff which ran into lacs of rupees and opined that the claim of  

the petitioner that the complex was being used for recreation of the  

members only was fallacious.

24. On the issue of discrimination, the Division Bench held that  

even if some other lands have been de-notified under Section 48(1),  

the same would be contrary to the purpose of acquisition and one  

wrong cannot justify another wrong.

25. Shri Mukul Rohtagi, learned senior counsel appearing for the  

appellants argued with his usual vehemence that the decision taken  

by  the  then  Minister  for  Urban  Development  on  8.6.1999  for  

regularization of the construction made on the land in question was  

final and his successor was not justified in reviewing/reversing the  

same.  He submitted that the Government is bound to respect the  

decision taken by the then Minister in favour of the appellant and  

mere change of portfolio or absence of formal notification under  

Section 48(1) of the Act cannot denude the earlier decision of its  

sanctity.  Shri Rohtagi emphasized that if the decision taken by one  

Minister  is  overruled  or  overturned  by  his  successor,  the  

credibility of the Government will become questionable.  Learned  

senior counsel further argued that even if the note recorded in the  

file by the then Minister for Urban Development on 8.6.1999 is not  

treated as a decision taken by the Government under Section 48(1) of  

the Act, rejection of the appellants representations is liable to be  

quashed on the ground of arbitrariness and non-application of mind.  

Shri Rohtagi made a pointed reference to the observations contained  

in para 182 of the judgment of the Full Bench in Roshanara Begum v.  

Union  of  India  (supra)  and  the  statement  made  by  the  counsel  

appearing on behalf of the State before this Court in Murari v.  

Union of India (supra) that the Government will consider each of the

structure and take a decision in that respect and argued that the  

appellants prayer for withdrawal from acquisition could not have  

been  rejected  on  the  specious  grounds  that  development  has  been  

carried  out  after  acquisition  of  the  land  or  that  the  same  is  

required for Vasant Kunj Residential Project, more so, when power  

under that section had already been exercised in favour of Hamdard  

Public School, St. Xavier School, Shahbad Estate Extension Welfare  

Association, Scindia Potteries  and others.  Learned counsel pointed  

out that the sports complex constructed at the site has a cricket  

ground,  tennis  stadium,  badminton  courts,  swimming  pool,  table  

tennis room, squash court where the people can play different games  

and sports under the watchful eyes of expert coaches.  He submitted  

that  the  facilities  available  at  the  sports  complex  are  of  

international  standard,  which  can  be  used  for  various  purposes  

including the impending Commonwealth Games and nobody is going to be  

benefited by demolition of the complex.  Shri Rohtagi also referred  

to the guidelines issued by the Government of India, Ministry of  

Urban Affairs & Employment, Department of Urban Development vide  

letter No.K-13011/17/96-DDIB dated 5.3.1989 and submitted that on  

the  one  hand  the  Government  is  encouraging  public  private  

cooperation  in  development  of  the  land  for  activities  like  

construction  of  schools,  shopping  complexes,  community  centers,  

ration  shops,  hospitals  and  dispensaries,  the  sports  complex  

constructed by the appellants by spending crores of rupees is sought  

to be demolished after a gap of more than 25 years.  Learned counsel  

submitted  that  there  is  no  sports  club  in  Vasant  Kunj  and  the  

appellants are willing to pay market price or offer half of the land

for accomplishment of the residential project for which the land is  

sought to be acquired.   

26. Ms. Indira Jaising, learned Additional Solicitor General and  

Shri  A.  Sharan,  learned  senior  advocate,  appearing  for  the  DDA  

emphatically  submitted  that  this  Court  should  not  grant  any  

indulgence to the appellants because they constructed the so called  

sports complex knowing fully well that the land in question had  

already been acquired.  Ms. Jaising submitted that the appellants  

had no business to raise construction on the acquired land because  

they do not have any title over it.  She referred to Section 3 of  

the 1972 Act and argued that in the face of unequivocal prohibition  

against transfer of the acquired land, the appellants could not have  

constructed the building and that too without obtaining sanction or  

permission from any competent authority.

27. In the light of the submissions made by the learned counsel  

for the parties, we shall now consider whether note dated 8.6.1999  

recorded by the then Minister for Urban Development can be treated  

as a decision of the Government to withdraw from the acquisition of  

land in question in terms of Section 48(1) of the Act, which lays  

down  that  except  in  the  case  provided  for  in  Section  36,  the  

Government shall be at liberty to withdraw from the acquisition of  

any land of which possession has not been taken.  Although, the  

plain language of Section 48(1) does not give any indication of the  

manner or mode in which the power/discretion to withdraw from the  

acquisition of any land is required to be exercised, having regard

to the scheme of Parts II and VII of the 1894 Act, which postulates  

publication of notification under Section 4(1), declaration under  

Section 6 and agreement under Section 42 in the official gazette as  

a condition for valid acquisition of the land for any public purpose  

or for a company, it is reasonable to take the view that withdrawal  

from the acquisition, which may adversely affect the public purpose  

for  which,  or  the  company  on  whose  behalf  the  acquisition  is  

proposed, can be done only by issuing a notification in the official  

gazette.  The decision to acquire the land for a public purpose is  

preceded by consideration of the matter at various levels of the  

Government.  The revenue authorities conduct survey for determining  

the  location  and  status  of  the  land  and  feasibility  of  its  

acquisition for a public purpose. The final decision taken by the  

competent authority is then published in the official gazette in the  

form  of  a  notification  issued  under  Section  4(1)  of  the  Act.  

Likewise, declaration made under Section 6 of the Act is published  

in the official gazette.  The publication of notifications under  

Section  4(1)  has  two-fold  objectives.   In  the  first  place,  it  

enables the land owner(s) to lodge objections against the proposed  

acquisition.  Secondly, it forewarns the owners and other interested  

persons not to change the character of the land and, at the same  

time, make them aware that if they enter into any transaction with  

respect to the land proposed to be acquired, they will do so at  

their own peril.  When the land is acquired on behalf of a company,  

consent of the appropriate government is a must.  The company is  

also required to execute an agreement in terms of Section 41 of the  

Act which is then published in the official gazette in terms of

Section 42 thereof.  As a necessary concomitant, it must be held  

that the exercise of power by the government under Section 48(1) of  

the Act must be made known to the public at large so that those  

interested in accomplishment of the public purpose for which the  

land  is  acquired  or  the  concerned  company  may  question  such  

withdrawal by making representation to the higher authorities or by  

seeking courts intervention.  If the decision of the Government to  

withdraw from the acquisition of land is kept secret and is not  

published in the official gazette, there is every likelihood that  

unscrupulous land owners, their agents and wheeler-dealers may pull  

strings  in  the  power  corridors  and  clandestinely  get  the  land  

released from acquisition and thereby defeat the public purpose for  

which the land is acquired.   Similarly, the company on whose behalf  

the land is acquired may suffer incalculable harm by unpublished  

decision of the Government to withdraw from the acquisition.  

28. The requirement of issuing a notification for exercise of  

power  under  Section  48(1)  of  the  Act  to  withdraw  from  the  

acquisition of the land can also be inferred from the judgments of  

this  Court  in  Municipal  Committee,  Bhatinda  v.  Land  Acquisition  

Collector and others (1993) 3 SCC 24 (para 8), U.P. State Sugar  

Corporation Ltd. v. State of U.P. and others (1995) Supp 3 SCC 538  

(para 3), State of Maharashtra and another v. Umashankar Rajabhau  

and others (1996) 1 SCC 299 (para 3) and State of T.N. and others v.  

L. Krishnan and others (1996) 7 SCC 450 (para 7).  In Larsen &  

Toubro Ltd. v. State of Gujarat and others (1998) 4 SCC 387, the  

Court considered the question whether the power under Section 48(1)

of the Act can be exercised by the Government without notifying the  

factum of withdrawal to the beneficiary of the acquisition.  It was  

argued that in contrast to Sections 4 and 6, Section 48(1) of the  

Act does not contemplate issue of any notification and withdrawal  

from the acquisition can be done by an order simpliciter.   It was  

further argued that power under Section 21 of the General Clauses  

Act  can  be  exercised  for  withdrawing  notifications  issued  under  

Sections  4  and  6.    While  rejecting  the  argument,  the  Court  

observed:

“….. When Sections 4 and 6 notifications are issued, much  has been done towards the acquisition process and that  process  cannot  be  reversed  merely  by  rescinding  those  notifications. Rather it is Section 48 under which, after  withdrawal from acquisition is made, compensation due for  any  damage  suffered  by  the  owner  during  the  course  of  acquisition proceedings is determined and given to him. It  is, therefore, implicit that withdrawal from acquisition  has to be notified.

31.  Principles  of  law  are,  therefore,  well  settled.  A  notification in the Official Gazette is required to be  issued if the State Government decides to withdraw from  the acquisition under Section 48 of the Act of any land of  which possession has not been taken. An owner need not be  given any notice of the intention of the State Government  to withdraw from the acquisition and the State Government  is  at liberty  to do  so. Rights  of the  owner are  well  protected by sub-section (2) of Section 48 of the Act and  if  he  suffered  any  damage  in  consequence  of  the  acquisition proceedings, he is to be compensated and sub- section  (3)  of  Section  48  provides  as  to  how  such  compensation is to be determined. There is, therefore, no  difficulty when it is the owner whose land is withdrawn  from acquisition is concerned. However, in the case of a  company, opportunity has to be given to it to show cause  against any order which the State Government proposes to  make withdrawing from the acquisition. Reasons for this  are not far to seek. After notification under Section 4 is  issued, when it appears to the State Government that the  land in any locality is needed for a company, any person  interested in such land which has been notified can file  objections  under  Section  5-A(1)  of  the  Act.  Such

objections are to be made to the Collector in writing and  who  after  giving  the  objector  an  opportunity  of  being  heard  and  after  hearing  of  such  objections  and  after  making  such  further  enquiry,  if  any,  as  the  Collector  thinks  necessary,  is  to  make  a  report  to  the  State  Government  for  its  decision.  Then  the  decision  of  the  State Government on the objections is final. Before the  applicability  of  other  provisions  in  the  process  of  acquisition, in the case of a company, previous consent of  the State Government is required under Section 39 of the  Act nor (sic) unless the company shall have executed the  agreement as provided in Section 41 of the Act. Before  giving such consent, Section 40 contemplates a previous  enquiry. Then compliance with Rules 3 and 4 of the Land  Acquisition (Company) Rules, 1963 is mandatorily required.  After the stage of Sections 40 and 41 is reached, the  agreement so entered into by the company with the State  Government is to be published in the Official Gazette.  This is Section 42 of the Act which provides that the  agreement on its publication would have the same effect as  if it had formed part of the Act. After having done all  this, the State Government cannot unilaterally and without  notice  to  the  company  withdraw  from  acquisition.  Opportunity has to be given to the company to show cause  against the proposed action of the State Government to  withdraw from acquisition. A declaration under Section 6  of the Act is made by notification only after formalities  under Part VII of the Act which contains Sections 39 to 42  have been complied and the report of the Collector under  Section 5-A(2) of the Act is before the State Government  who consents to acquire the land on its satisfaction that  it  is  needed  for  the  company.  A  valuable  right,  thus,  accrues to the company to oppose the proposed decision of  the  State  Government  withdrawing  from  acquisition.  The  State Government may have sound reasons to withdraw from  acquisition but those must be made known to the company  which  may  have  equally  sound  reasons  or  perhaps  more,  which might persuade the State Government to reverse its  decision withdrawing from acquisition. In this view of the  matter it has to be held that Yadi (memo) dated 11-4-1991  and Yadi (memo) dated 3-5-1991 were issued without notice  to the appellant (L&T Ltd.) and are, thus, not legal.”

(emphasis added)

29. The issue deserves to be considered from another angle.  All  

executive actions of the Government of India and the Government of a  

State are required to be taken in the name of the President or the  

Governor of the concerned State, as the case may be [Articles 77(1)  

and 166(1)].  Orders and other instruments made and executed in the

name of the President or the Governor of a State, as the case may  

be,  are  required  to  be  authenticated  in  such  manner  as  may  be  

specified in rules to be made by the President or the Governor, as  

the case may be [Articles 77(2) and 166(2)].  Article 77(3) lays  

down  that  the  President  shall  make  rules  for  more  convenient  

transaction of the business of the Government of India, and for the  

allocation among Ministers of the said business.  Likewise, Article  

166(3) lays down that the Governor shall make rules for the more  

convenient  transaction  of  the  business  of  the  Government  of  the  

State, and for the allocation among Ministers of the said business  

insofar as it is not business with respect to which the Governor is  

by or under this Constitution required to act in his discretion.  

This means that unless an order is expressed in the name of the  

President  or  the  Governor  and  is  authenticated  in  the  manner  

prescribed by the rules, the same cannot be treated as an order on  

behalf of the Government.  A noting recorded in the file is merely a  

noting  simpliciter  and  nothing  more.   It  merely  represents  

expression of opinion by the particular individual.  By no stretch  

of imagination, such noting can be treated as a decision of the  

Government.  Even if the competent authority records its opinion in  

the file on the merits of the matter under consideration, the same  

cannot  be  termed  as  a  decision  of  the  Government  unless  it  is  

sanctified and acted upon by issuing an order in accordance with  

Article 77(1) and (2) or Article 166(1) and (2).  The noting in the  

file or even a decision gets culminated into an order affecting  

right of the parties only when it is expressed in the name of the  

President or the Governor, as the case may be, and authenticated in

the manner provided in Article 77(2) or Article 166(2).  A noting or  

even  a  decision  recorded  in  the  file  can  always  be  

reviewed/reversed/overruled or overturned and the court cannot take  

cognizance of the earlier noting or decision for exercise of the  

power of judicial review.

30. In State of Punjab v. Sodhi Sukhdev Singh AIR 1961 SC 493,  

this Court considered the question whether a provisional decision  

taken by the Council of Ministers to reinstate an employee could be  

made  basis  for  filing  an  action  for  issue  of  a  mandamus  for  

reinstatement and held:

"………. We are unable to understand this argument. Even if  the  Council  of  Ministers  had  provisionally  decided  to  reinstate  the  respondent  that  would  not  prevent  the  Council  from  reconsidering  the  matter  and  coming  to  a  contrary conclusion later on, until a final decision is  reached by them and is communicated to the Rajpramukh in  the form of advice and acted upon by him by issuing an  order in that behalf to the respondent."   

31. A  somewhat  similar  question  was  considered  by  the  

Constitution Bench in Bachhittar Singh v. The State of Punjab (1962)  

Supp. 3 SCR 713, in the backdrop of the argument that once the  

Revenue Minister of PEPSU had recorded a note in the file that the  

punishment imposed on the respondent be reduced from dismissal to  

that of reversion, the same could not be changed/reviewed/overruled  

by the Chief Minister.  This Court proceeded on the assumption that  

the note recorded by the Revenue Minister of PEPSU in the file was

an  order,  referred  to  the  provisions  of  Article  166  of  the  

Constitution and held:

“Merely writing something on the file does not amount to  an  order.  Before  something  amounts  to  an  order  of  the  State Government two things are necessary. The order has  to be expressed in the name of the Governor as required by  clause (1) of Art.166 and then it has to be communicated.  As  already  indicated,  no  formal  order  modifying  the  decision of the Revenue Secretary was ever made. Until  such an order is drawn up the State Government cannot, in  our opinion, be regarded as bound by what was stated in  the  file.  As  along  as  the  matter  rested  with  him  the  Revenue  Minister  could  well  score  out  his  remarks  or  minutes on the file and write fresh ones.  

The  business  of  State  is  a  complicated  one  and  has  necessarily to be conducted through the agency of a large  number  of  officials  and  authorities.  The  constitution,  therefore,  requires  and  so  did  the  Rules  of  Business  framed by the Rajpramukh of PEPSU provide, that the action  must be taken by the authority concerned in the name of  the Rajpramukh. It is not till this formality is observed  that the action can be regarded as that of the State or  here,  by  the  Rajpramukh.  We  may  further  observe  that,  constitutionally speaking, the Minister is no more than an  adviser and that the head of the State, the Governor or  Rajpramukh  (Till  the  abolition  of  that  office  by  the  Amendment of the Constitution in 1956), is to act with the  aid and advice of his Council of Ministers. Therefore,  until such advice is accepted by the Governor whatever the  Minister or the Council of Ministers may say in regard to  a  particular  matter  does  not  become  the  action  of  the  State  until  the  advice  of  the  Council  of  Ministers  is  accepted  or  deemed  to  be  accepted  by  the  Head  of  the  State. Indeed, it is possible that after expressing one  opinion about a particular matter at a particular stage a  Minister or the Council of Ministers may express quite a  different opinion, one which may be completely opposed to  the earlier opinion. Which of them can be regarded as the  'order' of the State Government ? Therefore to make the  opinion amount to a decision of the Government it must be  communicated to the person concerned. In this connection  we may quote the following from the judgment of this Court  in the State of Punjab v. Sodhi Sukhdev Singh.

"Mr. Gopal Singh attempted to argue that before the  final order was passed the Council of Ministers had  decided to accept the respondent's representation and  to reinstate him, and that, according to him, the

respondent seeks to prove by calling the two original  orders. We are unable to understand this argument.  Even if the Council of Ministers had provisionally  decided to reinstate the respondent that would not  prevent the Council from reconsidering the matter and  coming to a contrary conclusion later on, until a  final decision is reached by them and is communicated  to the Rajpramukh in the form of advice and acted  upon by him by issuing an order in that behalf to the  respondent."  

Thus  it  is  of  the  essence  that  the  order  has  to  be  communicated to the person who would be affected by that  order before the State and that person can be bound by  that order.  For, until the order is communicated to the  person affected by it, it would be open to the Council of  Ministers to consider the matter over and over again and,  therefore,  till  its  communication  the  order  cannot  be  regarded as anything more than provisional in character.  

We are, therefore, of the opinion that the remarks or the  order of the Revenue Minister, PEPSU are of no avail to  the appellant.”

[emphasis added]

32. In State of Bihar and others v. Kripalu Shankar and others  

(1987) 3 SCC 34, a two-Judge Bench while considering the question  

whether  notings  recorded  in  the  file  would  constitute  civil  or  

criminal contempt within the meaning of Section 2(b) and (c) of the  

Contempt of Courts Act observed as under:-

“14.  Now,  the  functioning  of  Government  in  a  State  is  governed by Article 166 of the Constitution, which lays  down that there shall be a council of ministers with the  Chief Minister at the head, to aid and advise the Governor  in  the  exercise  of  his  functions  except  where  he  is  required to exercise his functions under the Constitution,  in his discretion. Article 166 provides for the conduct of  Government business. It is useful to quote this article:

166 (1) All executive action of the government of a  State shall be expressed to be taken in the name of  the Governor.

(2) Orders and other instruments made and executed in  the name of the Governor shall be authenticated in

such manner as may be specified in rules to be made  by  the  Governor,  and  the  validity  of  an  order  or  instrument  which  is  so  authenticated  shall  not  be  called in question on the ground that it is not an  order or instrument made or executed by the Governor.

(3)  The  Governor  shall  make  rules  for  the  more  convenient  transaction  of  the  business  of  the  government of the State, and for the allocation among  Ministers of the said business insofar as it is not  business with respect to which the Governor is by or  under  this  Constitution  required  to  act  in  his  discretion.

15. Article 166(1) requires that all executive action of  the State Government shall be expressed to be taken in the  name of the Governor. This clause relates to cases where  the executive action has to be expressed in the shape of a  formal order or notification. It prescribes the mode in  which an executive action has to be expressed. Noting by  an official in the departmental file will not, therefore,  come within this article nor even noting by a Minister.  Every executive decision need not be as laid down under  Article 166(1) but when it takes the form of an order it  has to comply with Article 166(1). Article 166(2) states  that orders and other instruments made and executed under  Article  166(1),  shall  be  authenticated  in  the  manner  prescribed.  While  clause  (1)  relates  to  the  mode  of  expression, clause (2) lays down the manner in which the  order is to be authenticated and clause (3) relates to the  making  of  the  rules  by  the  Governor  for  the  more  convenient transaction of the business of the Government.  A study of this article, therefore, makes it clear that  the  notings  in  a  file  get  culminated  into  an  order  affecting right of parties only when it reaches the head  of the department and is expressed in the name of the  Governor, authenticated in the manner provided in Article  166(2).”

33. In Rajasthan Housing Board v. Shri Kishan (1993) 2 SCC 84,  

this Court made a detailed reference to the records and affidavit  

filed on behalf of the Rajasthan Housing Board and held:

“From the above material, it is clear that there was no  final decision at any time to de-notify the said lands. A  tentative decision was no doubt taken in February 1990 but  before it could be implemented the Government thought it  necessary to ascertain in views of the Housing Board and  to find out as to what the Board had done upon the land,  what structures it had raised and what amount it had spent  so that the Board could be compensated while delivering

the possession back to the Housing Society. Before this  could be done there was a change in the Government and the  said tentative decision was reversed. In this view of the  matter, it is not necessary for us to go into the question  whether there was a communication of the ‘decision’ of the  Government to the petitioner. The communication must be of  a final decision and not of a provisional or tentative  decision.”

34. The  issue  was  recently  considered  in  Sethi  Auto  Service  

Station and another v. Delhi Development Authority and others (2009)  

1 SCC 180.  In that case, the appellant had claimed relocation of  

two  petrol  pumps  which  had  become  non-profitable  on  account  of  

construction of 8 lane express highway between Delhi and Gurgaon.  

The  appellants  relied  on  the  notings  recorded  by  the  technical  

committee headed by the Vice Chairman, DDA.  It was urged that the  

technical committee had recommended relocation of the petrol pumps,  

it  was  not  open  to  DDA  to  do  a  volte  face and  reject  the  

representation of the appellants.  On behalf of the respondents, it  

was urged that mere notings and proposal recorded in the files of  

DDA did not create any right in favour of the appellants and the  

final decision taken by DDA against relocation of petrol pumps was  

consistent with the policy in vogue.  This Court approved the High  

Court’s refusal to interfere with DDA’s decision and observed:

“It is trite to state that notings in a departmental file  do not have the sanction of law to be an effective order.  A noting by an officer is an expression of his viewpoint  on  the  subject.  It  is  no  more  than  an  opinion  by  an  officer for internal use and consideration of the other  officials of the department and for the benefit of the  final  decision-making  authority.  Needless  to  add  that  internal  notings  are  not  meant  for  outside  exposure.  Notings in the file culminate into an executable order,  affecting the rights of the parties, only when it reaches  the  final  decision-making  authority  in  the  department,  gets his approval and the final order is communicated to  the person concerned.”

35. In C.W.P. No.325/1982 - Ram Phal v. Union of India, which  

was decided by the Full Bench of the High Court along with other  

cases, vide Roshanara Begum v. Union of India, an application was  

moved  by  the  petitioners  with  the  prayer  that  the  acquisition  

proceedings may be quashed because the Central Government has issued  

an  order  under  Section  48(1)  of  the  Act  for  withdrawal  of  the  

acquisition proceedings in respect of the land which was subject  

matter of the writ petition. On behalf of the Central Government, it  

was urged that no order has been made by the Central Government for  

withdrawing  from  acquisition  of  the  land  in  question  and  

communication regarding withdrawal was sent due to misreading of  

orders made in the file.  Counsel representing the Union of India  

went to the extent of arguing that if the court was to infer that  

any such order has been made by the Central Government, then the  

same be treated as non est and declared as illegal and void because  

the land was being acquired for planned development of Delhi.  It  

was argued that before an order under Section 48 could come into  

play, the same is required to be published in the official gazette  

in  the  same  manner  in  which  notification  under  Section  4  and  

declaration under Section 6, are published.  The Full Bench adverted  

to Section 48(1) of the Act and observed:

“Section 48 of the Act lays down that Government shall be  at liberty to withdraw from the acquisition of any land of  which possession has not been taken. The original record  in which the Minister concerned had made the order was  produced before us which we have perused and as a matter  of fact, the learned counsel for the petitioner has placed  on  record  the  photocopies  of  the  notings  on  which  the

order of the Minister has been accorded. It is evident  that if this Court is to come to the conclusion on reading  the said record that in fact no order has been made by the  Minister  concerned  which  amounts  to  withdrawing  from  acquisition, mere communication of the misconstrued order  by the officials would not have the effect of an order of  the Government withdrawing from the acquisition.”

36. The  Full  Bench  then  examined  the  notings  in  the  file,  

referred  to  Section  21  of  the  General  Clauses  Act,  1897  and  

concluded:

“157. Section 48 by itself does not require publication of  such an order in the Official Gazette. As a matter of  fact, there is no repugnancy between the provisions of  Section  48 of  the Act  as read  with Section  21 of  the  General  Clauses  Act.  The  purpose  of  issuance  of  publication  of  notifications  and  declarations  under  Sections 4 and 6 of the Act in Official Gazette are that  public at large should become aware of the factum that the  land so notified is to be acquired for public purpose so  that people at large should not suffer any monetary loss  or any other inconveniences in entering into any deals in  respect  of  such  land,  subject-matter  of  compulsory  acquisition. As an analogy of the purpose enshrined in  notification issued under Section 4 and declaration issued  under Section 6 for their publication in Official Gazette  is also, in our view, linked to the order which is made  under  Section  48  of  the  Act  for  withdrawing  from  such  acquisition and unless the same is also published in the  manner  as  the  original  notifications,  the  said  object  could not be achieved i.e. of giving public notice to the  public at large.”

37. As a result of the above discussion, we hold that the noting  

recorded in the official files by the officers of the Government at  

different levels and even the Ministers do not become decision of  

the  Government  unless  the  same  is  sanctified  and  acted  upon  by  

issuing an order in the name of the President or Governor, as the  

case may, authenticated in the manner provided in Articles 77(2) and  

166(2) and is communicated to the affected persons.  The notings

and/or decisions recorded in the file do not confer any right or  

adversely affect the right of any person and the same can neither be  

challenged in a court nor made basis for seeking relief.  Even if  

the competent authority records noting in the file, which indicates  

that some decision has been taken by the concerned authority, the  

same can always be reviewed by the same authority or reversed or  

over-turned  or  overruled  by  higher  functionary/authority  in  the  

Government.

38. Reverting to the case in hand, we find that representation  

made  on  behalf  of  appellant  No.1  was  examined  by  different  

functionaries of the Government and DDA.  On 8.6.1999, the then  

Minister for Urban Development recorded a note in the file that  

extensive  construction  has  taken  place  and  this  must  have  been  

possible with the cooperation of the concerned officers and opined  

that no demolition can or will be ordered as per the policy.  He  

then recorded that suitable terms for regularization be settled by  

negotiations  and  left  the  matter  there  for  consideration  by  his  

successor.  That noting was never translated into an order nor the  

same  was  published  in  the  official  gazette  in  the  form  of  a  

notification.  It was not even communicated to the appellants or  

DDA.  The reason for this is not far to seek.  The Minister had  

himself  left  the  matter  for  consideration  and  decision  by  his  

successor.   The  latter  finally  decided  on  14.7.1999  that  the  

appellants  request  for  de-notification  of  the  land  cannot  be  

accepted  because  the  development  was  carried  out  after  its  

acquisition  and  also  because  the  land  is  required  for  a  public

purpose, i.e, Vasant Kunj Residential Project, which was held up due  

to prolonged litigation.  This being the position, the appellants  

cannot rely upon the note recorded by the then Minister on 8.6.1999  

for pleading before the Court that the Government had taken decision  

to withdraw from the acquisition of land in question in terms of  

Section 48(1) of the Act.  

39. Before leaving this part of the discussion, we consider it  

necessary to observe that there have been several cases of exercise  

of  power  under  Section  48(1)  of  the  Act  for  extraneous  

considerations defeating the very purpose of acquisition.  Two such  

instances have been considered by this Court in Chandra Bansi Singh  

v. State of Bihar (1984) 4 SCC 316 and Rajasthan Housing Board v.  

Sri Kishan (supra).  The facts of Chandra Bansi Singh’s case were  

that on 19.8.1974, the Government of Bihar issued notification under  

Section 4 for acquisition of 1034.94 acres of land in village Digha  

for the purpose of construction of houses by the Bihar State Housing  

Board.  After consideration of objections, declaration under Section  

6  was  issued  and  published  on  20.2.1976.   On  8.11.1976,  a  

representation was made by one Mr. Ram Avtar Shastri, Member of  

Parliament for withdrawing the acquisition proceedings.  The same  

was rejected in December, 1976.  However, before compensation could  

be disbursed to the land owners, general elections were announced  

and, therefore, the matter was deferred and put in cold storage.  On  

24.5.1980, 4.03 acres land belonging to Pandey families was released  

from acquisition.  In the same year, a writ petition was filed in  

the  High  Court  challenging  release  of  land  in  favour  of  Pandey

families but the same was withdrawn.  In May 1981, another writ  

petition  was filed  on the  same subject  and it  was pleaded  that  

release of land in favour of Pandey families is violative of Article  

14 of the Constitution.   The State Government supported the release  

of land in favour of Pandey families by asserting that they had put  

up buildings with boundary walls in the entire area covered by 4.03  

acres  and  that  it  would  have  been  difficult  for  government  to  

demolish the construction.  This was controverted by the petitioner,  

who produced several photographs to show that no huge buildings or  

houses were constructed and only small hutment had been put up on  

the land.  After considering the entire record, this Court ruled  

that  release of  land in  favour of  Pandey families  was pure  and  

simple  act  of  favouritism  without  there  being  any  legal  or  

constitutional justification for the same and declared the action of  

the  State  Government  to  be  violative  of  Article  14  of  the  

Constitution.  The Court also declared that the entire acquisition  

will be deemed to be valid and the land released to Pandey families  

would form part of the acquisition initiated vide notification dated  

19.8.1974.   

40. The facts of Sri Kishan’s case were that 2570 bighas of land  

(approximately equal to 1580 crores) was acquired for the benefit of  

the Rajasthan Housing Board by publication of notification under  

Section 4(1) read with Section 17(4) of the Act.  The learned Single  

Judge  of  the  High  Court  dismissed  the  writ  petitions  involving  

challenge to the acquisition proceedings.  On appeals filed by the  

land  owners,  Judges  constituting  the  Division  Bench  expressed  

divergent  opinions.   Thereupon,  the  matter  was  referred  to  the

larger Bench.  By a majority judgment, the larger Bench quashed the  

notification issued under Section 17(4) and declaration issued under  

Section 6.  During the pendency of appeals before this Court, a writ  

petition  was  filed  by  New  Pink  City  Grah  Nirman  Sahkari  Sangh.  

Therein  it  was  pleaded  that  by  virtue  of  the  decision  of  the  

Minister-in-charge,  Urban  Development  Department  and  the  Chief  

Minister, the State Government must be deemed to have withdrawn from  

the acquisition within the meaning of Section 48(1) of the Act.  

This Court noted that the society, which claims to have purchased  

525 bighas of land from khatedars, represented the Government to de-

notify the land.  The then Minister-in-charge, Urban Development  

Department recorded a decision in the file on July 20, 1984 that the  

lands  be  released,  but  his  decision  was  overruled  by  the  Chief  

Minister.  After about five years, the society again represented for  

de-notification of the land.  The Minister for Urban Development  

made recommendation in favour of the society.  This time, the Chief  

Minister agreed with the Minister by observing that the land of the  

society was regularised according to the decision of the Cabinet.  

Thereafter,  Deputy  Secretary,  Urban  Development  and  Housing  

Department wrote a letter to the Secretary of the Housing Board that  

the Government has decided to release the land of the society.  A  

copy of the letter was marked to the society.  During the pendency  

of writ petition before this Court, an additional affidavit of the  

Secretary,  Rajasthan  Housing  Board  was  filed  with  a  categorical  

assertion  that  at  no  point  of  time  any  notification  was  issued  

withdrawing from the acquisition and the Beri Commission, which was  

constituted  to  look  into  the  illegalities  and  irregularities

committed by functionaries and officials of the previous Government,  

recorded a categorical finding that the decision to de-acquire the  

land of the petitioner – society was in contravention of the earlier  

decision of the Cabinet and was also contrary to law and against  

public interest.  This Court held that the notings recorded by the  

Minister and Chief Minister for release of land in favour of the  

society, were totally unjustified.

41. The next question which needs consideration is whether the  

decision  contained  in  letter  dated  9.6.2000  is  liable  to  be  

nullified on the ground of arbitrariness and violation of Article 14  

of the Constitution.  The plea of the appellants is that even though  

the construction of the sports complex and other buildings may not  

be in conformity with law, the Government is duty-bound to treat  

them  at  par  with  others  like  Hamdard  Public  School,  St.  Xavier  

School,  Shahbad  Estate  Extension  Welfare  Association,  Scindia  

Potteries etc., whose land was released from acquisition despite the  

fact that constructions were made after issue of notification under  

Section 4(1) and declaration under Section 6 of the Act and, in some  

cases, even after the award was made.  Their further plea is that in  

view of the observations contained in the last part of para 182 of  

the judgment of the Full Bench in Roshanara Bgum v. Union of India  

(supra) and statement made by the counsel appearing on behalf of the  

State, which finds mention in para 21 of the judgment of this Court  

in Murari v. Union of India (supra), the representations made by  

them for release of the land could not have been rejected on the  

grounds that the construction has been raised after the acquisition

of land and the acquired land is needed for Vasant Kunj Housing  

Project.

42. In our opinion, the Government’s decision not to withdraw  

from the acquisition of land in question or de-notify the acquired  

land, does not suffer from the vice of discrimination or arbitrary  

exercise of power or non application of mind.  With due deference to  

the Full Bench of the High Court which disposed of the batch of writ  

petitions and miscellaneous applications, the observations contained  

in the last part of paragraph 182 of the judgment suggesting that  

the petitioner/applicant can make representation for release of the  

land and the concerned authorities can examine whether the sports  

complex  could  serve  the  purpose  of  acquiring  the  land  for  the  

particular  scheme  or  the  scheme  can  be  modified  or  amended  in  

respect of the land in question were nothing more than pious hope  

and the Government rightly did not take them seriously because in  

the same paragraph the Full Bench unequivocally ruled that the land  

is required for residential scheme of Vasant Kunj and the sports  

complex built by the applicant was not in consonance with the public  

purpose  for  which  the  land  was  earmarked  in  the  scheme.   The  

statement made by the counsel representing the State before this  

Court which finds mention in paragraph 21 of the judgment in Murari  

v. Union of India (supra) was neither here nor there.  It did not  

amount  to  a  commitment  on  behalf  of  the  Government  that  

representations made for release of land will receive favourable  

consideration.  In any case, once this Court had made it clear in  

Murari  v.  Union  of  India  (supra)  that  in  a  matter  involving

acquisition of thousands of acres of land, it would not be proper to  

leave  out  some  small  portions  here  and  there  over  which  some  

construction may have been made, the decision of the Government not  

to withdraw from the acquisition of the land in question cannot be  

faulted.   

43. The appellants’ plea that the Government ought to have de-

notified the land covered by the sports complex because the same has  

been built by spending crores of rupees and is being used by a large  

section of people sounds attractive, but, after having given serious  

thought to the entire matter,  we are convinced that the Government  

rightly refused to exercise discretion under Section 48(1) of the  

Act for de-notifying the acquired land and the High Court did not  

commit  any error  whatsoever by  refusing to  fall in  the trap  of  

alluring argument that demolition of the sports complex built by  

spending substantial amount will be a waste of national wealth and  

nobody will be benefited by it.  The appellants have not denied the  

fact that the land on which the sports complex has been constructed  

was  acquired  by  the  Government  by  issuing  notification  dated  

23.1.1965 under Section 4(1) of the Act, which culminated in the  

making of award dated 22.12.1980.  It is also not their case that  

the  construction  activity  was  started  prior  to  initiation  of  

acquisition proceedings. Rather, their admitted stance is that they  

came in possession of the land between 1990-1993, i.e., more than 10  

years after finalization of the acquisition proceedings.  This being  

the position, the appellants cannot plead equity and seek court’s  

intervention for protection of the unauthorised constructions raised

by them.  It is trite to say that once the land is acquired by  

following due process of law, the same cannot be transferred by the  

land owner to another person and that any such transfer is void and  

is not binding on the State.  A transferee of the acquired land can,  

at best, step into the shoes of the land-owner and lodge claim for  

compensation – Gian Chand v. Gopala and others (1995) 2 SCC 528,  

Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain  

and others (1997) 1 SCC 37, Yadu Nandan Garg v. State of Rajasthan  

and others JT (1995) 8 S.C. 179 and Jaipur Development Authority v.  

Mahavir Housing Coop. Society, Jaipur and others (1996) 11 SCC 229.

44. The  appellants  have  another  unsurmountable  hurdle  in  the  

form  of  Section  3  of  the  1972  Act,  which  contains  prohibition  

against  transfer  of  the  acquired  land.   That  section  reads  as  

under:-

“Prohibition  on  transfer  of  lands  acquired  by  Central  Government.–– No person shall purport to transfer by sale,  mortgage,  gift,  lease  or  otherwise  any  land  or  part  thereof situated in the Union territory of Delhi, which  has been acquired by the Central Government under the Land  Acquisition Act, 1984 or under any other law providing for  acquisition of land for a public purpose.”

Section 4 which contains provision for regulation of transfer of  

lands which are under acquisition also reads as under:-

“Regulation  on  transfer  of  lands  in  relation  to  which  acquisition proceedings have been initiated. – No person  shall, except with the previous permission in writing of  the competent authority, transfer or purport to transfer  by sale, mortgage, gift, lease or otherwise any land or  part thereof situated in the Union territory of Delhi,  which is proposed to be acquired in connection with the

Scheme  and  in  relation  to  which  a  declaration  to  the  effect that such land or part thereof  is needed for a  public purpose having been made by the Central Government  under section 6 of the Land Acquisition Act, 1894, (1 of  1894) the Central Government has not withdrawn form the  acquisition under section 48 of that Act.”

45. The distinction between the above reproduced two provisions  

is that while Section 3 contains an absolute prohibition on transfer  

of the acquired land by sale, mortgage, gift, lease or otherwise,  

Section 4 declares that no person shall, except with the previous  

permission  in  writing  of  the  competent  authority,  transfer  or  

purport to transfer by sale etc. of any land or part thereof, which  

is proposed to be acquired in connection with the scheme and in  

relation to which a declaration to the effect that such land or part  

thereof is needed for a public purpose has been made by the Central  

Government and the Central Government has not withdrawn  from the  

acquisition under Section 48(1).   

46. The present case falls within the ambit of Section 3 of the  

1972 Act.  The land owners and Shri Satish Khosla must have been  

aware of the prohibition on transfer of the acquired land, but by  

taking advantage of the stay order passed by the High Court in Writ  

Petition  No.1753/1980,  they  appear  to  have  entered  into  some  

clandestine  transaction  pursuant  to  which  Shri  Satish  Khosla  

acquired possession of the land and proceeded to build the sports  

complex and commercial facilities to which reference has been made  

in  the  order  of  the  Division  Bench.   We  have  described  the  

transaction as clandestine because the appellants are conspicuously  

silent as to how Shri Satish Khosla came in possession of land in

question after 35 years of initiation of the acquisition proceedings  

and 10 years of finalization thereof. During the course of hearing,  

Shri  Mukul  Rohtagi,  learned  senior  counsel  appearing  for  the  

appellants  did  make  a  statement  that  his  client  were  put  in  

possession in furtherance of an agreement of sale, but no document  

has been produced in support of this statement.  Therefore, it is  

not possible to take cognizance of the so-called agreement of sale.  

In any case, even if such a transaction did take place, the same  

will have to be treated as void in view of the express prohibition  

contained in Section 3 of the 1972 Act.

47. Although,  the  then  Minister  for  Urban  Development,  who  

recorded  note  dated  8.6.1999,  was  extremely  magnanimous  to  the  

appellants when he wrote that the extensive construction must have  

been made with full cooperation of public servants concerned, but  

having carefully examined the entire record, we have no hesitation  

to observe that the construction of this magnitude could not have  

been possible, but for the active connivance of the concerned public  

servants who turned blind eye to the huge structure being built on  

the acquired land without any sanctioned plan.  We are amazed to  

note that after having secured some sort of transfer of the acquired  

land in stark violation of the prohibition contained in Section 3 of  

the  1972  Act,  the  appellants  could  raise  massive  structure  

comprising  cricket  ground,  tennis  stadium,  badminton  courts,  

swimming pool, table tennis room, squash court, etc. and cottages  

with modern facilities without even submitting building plans for  

sanction by any competent authority and  without being noticed by

any  of  the  authorities  entrusted  with  the  duty  of  checking  

illegal/unauthorised construction.  This mystery may perhaps never  

be solved because the officers responsible for ignoring the blatant  

violation of Section 3 of the 1972 Act, Delhi Development Authority  

Act and Building Rules, Regulations and By-laws must have either  

retired or moved to higher positions in the administration where  

they will be able to block any inquiry in the matter.  Be that as it  

may, such illegal constructions cannot be protected by the court by  

nullifying the decision taken by the Government not to withdraw from  

the acquisition of the land in question.

48. At this stage, we may also take cognizance of the commercial  

activities  being  undertaken  in  what  has  been  described  by  the  

appellants as sports complex simpliciter.  The nature and magnitude  

of the commercial activities may never have been revealed but for  

the fact that the officer representing the respondents could bring  

to  the  High  Court’s  notice  the  written  statement  filed  by  Shri  

Satish Khosla in Suit No. 3064/1996 – M/s. Eli Lilly Ranbaxy Ltd.  

and others v. Satish Khosla.  In that suit, the plaintiff had sought  

a  decree  of  permanent  injunction  restraining  the  defendant  from  

letting out the garden for parties and functions during the currency  

of lease agreement in respect of cottage no. 6.  The contents of  

paras  4,  6  and  11  of  the  written  statement,  which  have  been  

extracted in the impugned order of the Division Bench of the High  

Court, read as under:-

“4. Para no. 4 is denied.  It is pertinent to note  that the Cottage in question is situated in the Shanti  Sports  Club and  is one  of the  7 cottages  in the  said  Sports Club.  Shanti Sports Club, of which the defendant  is  the  Chairman,  came  into  existence  in  1989  and  the  sports facilities of the said Club are being utilized by  its members as well as others.  The said Club has amongst  others a cricket ground, six tennis courts, swimming pool,  squash  courts,  billiards  rooms  and  a  host  of  other  facilities for use for its members.  The Club has large  beautifully manicured lawn appealing to the eye. Since the  very inception of the Club, its beautiful lawns are hired  for  wedding  parties,  birth-day  parties  and  for  other  festive occasions. These wedding parties have been held on  the lawns of the Club since 1991, and are the very life  and soul of the Club apart from its sports activities. In  fact,  the  aforementioned  wedding  parties  and  other  functions which are held on the lawns are the major source  of  revenue  for  the  Club.  The  club  has  more  than  1500  members and about 200-300 frequent the club every day.

6. Para 6 is denied. The contents of this para are  absolutely  false  to  the  knowledge  of  the  plaintiffs  inasmuch as the plaintiffs all along knew that the garden  in  between  the  two  Cottages  was  let  out  on  hire  for  marriage and other private parties. The defendant denies  any verbal assurance was given to the plaintiffs that the  garden was to be used for the families residing in two  cottages and not for any other purpose. The lawn/garden in  question in between the two cottages is of more than 3000  sq.  yards  in  size  and  it  was  not  hired  out  to  the  plaintiff.

11.  The  averments  made  in  para  11  are  denied.  It  is  submitted that the plaintiffs have filed the present suit  only to harass the defendant. It is pertinent to note that  in  the  other  Cottages  in  the  Club  several  Diplomats  including Deputy High Commissioner of Pakistan, Ambassador  of  Kazakastan  and  other  dignitaries  are  staying  for  several years without any complaint. It is denied that the  plaintiffs  are  entitled  to  a  decree  of  permanent  injunction restraining the defendant from hiring out the  garden for functions and parties during the tenure of the  alleged lease agreement. The revenue generated from hiring  out the garden for functions and parties is significant  revenue  and  is  necessary  for  the  proper  and  efficient  running of the Club and these functions and parties are  the very life and soul of the Club.

The  aforesaid  averments  made  in  the  written  statement  filed  by  Shri  Satish  Khosla  in  the  above  noted  suit

clearly reveal that the cottages at the club and its lawns  are  being  used  for  commercial  and  rental  purposes.  In  respect of cottage No. 6 alone the club was charging large  amounts  as  per  below  under  various  agreements.  These  details are as follows:-

1. According to the lease agreement by and between the  club  and  M/s.Eli  Lilly  Ranbaxy  Ltd.  the  latter  was  required to pay a rental of Rs.60,000/- p.m. to the former  during the first year of the lease.

2. The rent was liable to be increased by 5% after the  first years, 10% over the last rent paid after second year  and every year thereafter.

3. Agreement stipulated payment of advance rent in the sum  of Rs.4,50,000/- by M/s. Eli Lilly Ranbaxy Ltd. to the  Club.

4. Under maintenance and service agreement in respect of  the  said  premises  M/s.  Eli  Lilly  Ranbaxy  Ltd.  were  required to pay Rs.40,000/- p.m. to the Club.

5. The maintenance charges of the premises were liable to  be increased by 5% over the last charge paid after the  first year, and increase of 10% over the last charge paid  after the second year and every year thereafter.

6. Under an agreement for security services, for the same  cottage,  the  aforesaid  lessee  was  required  to  pay  Rs.30,000/- to the club and these charges were liable to  be increased by 5% after first year and 10% after the  second year and every year thereafter.

7.  Under  an  agreement  styled  as  'hire  agreement',  the  lessee  was  required  to  pay  to  the  club  a  sum  of  Rs.70,000/- p.m. for the use of the fittings and fixtures  installed in the cottage.

8. The lessee was also liable to pay to the club hire  charges of Rs.7,50,000/- as advance for the fittings and  fixtures installed in the cottage.”

49. From what we have noted above, it is crystal clear that the  

appellants have been undertaking large scale commercial activities  

in the complex and their so-called love for sports has substantial  

flavor of commerce.

50. The plea of discrimination and violation of Article 14 of  

the Constitution put forward by the appellants is totally devoid of  

substance because they did not produce any evidence before the High  

Court and none has been produced before this Court to show that  

their land is identically placed qua the lands on which Hamdard  

Public School, St. Xavier School, Scindia Potteries, etc. exist.  In  

the  representations  made  to  different  functionaries  of  the  

Government and DDA, the appellants did claim that other parcels of  

the land have been de-notified and before the High Court a copy of  

notification dated 6.9.1996 issued under Section 48(1) was produced,  

but  the  said  assertion  and  notification  were  not  sufficient  for  

recording a finding that their case is identical to those whose land  

had  been  denotified.   The  burden  to  prove  the  charge  of  

discrimination and violation of Article 14 was on the appellants.  

It was for them to produce concrete evidence before the court to  

show that their case was identical to other persons whose land had  

been  released  from  acquisition  and  the  reasons  given  by  the  

Government  for  refusing  to  release  their  land  are  irrelevant  or  

extraneous.  Vague and bald assertions made in the writ petition  

cannot be made basis for recording a finding that the appellants  

have been subjected to invidious or hostile discrimination.  That  

apart, we are prima facie of the view that the Government’s decision

to withdraw from the acquisition of some parcels of land in favour  

of some individuals was not in public interest.  Such decisions had,  

to  some  extent,  resulted  in  defeating  the  object  of  planned  

development of Delhi on which considerable emphasis has been laid by  

the Full Bench of the High Court and this Court.  This being the  

position, Article 14 cannot be invoked by the appellants for seeking  

a direction to the respondents to withdraw from the acquisition of  

the land in question.  Article 14 of the Constitution declares that  

the State shall not deny to any person equality before the law or  

the equal protection of the laws within the territory of India.  The  

concept of equality enshrined in that Article is a positive concept.  

The Court can command the State to give equal treatment to similarly  

situated persons, but cannot issue a mandate that the State should  

commit illegality or pass wrong order because in another case such  

an illegality has been committed or wrong order has been passed.  If  

any illegality or irregularity has been committed in favour of an  

individual  or  a  group  of  individuals,  others  cannot  invoke  the  

jurisdiction of the High Court or of this Court and seek a direction  

that  the  same  irregularity  or  illegality  be  committed  in  their  

favour by the State or its agencies/instrumentalities.  In other  

words, Article 14 cannot be invoked for perpetuating irregularities  

or  illegalities.   In  Chandigarh  Administration  v.  Jagjit  Singh  

(1995) 1 SCC 745, this Court made a lucid exposition of law on this  

subject.  The facts of that case were that the respondents, who had  

given  the  highest  bid  for  338  sq.  yds.  Plot  in  Section  31A,  

Chandigarh  defaulted  in  paying  the  price  in  accordance  with  the  

terms and conditions of allotment.  After giving him opportunity of

showing cause, the Estate Officer cancelled the lease of the plot.  

The appeal and the revision filed by him were dismissed by the Chief  

Administrator  and  Chief  Commissioner,  Chandigarh  respectively.  

Thereafter,  the  respondent  applied  for  refund  of  the  amount  

deposited by him.  His request was accepted and the entire amount  

paid by him was refunded.  He then filed a petition for review of  

the order passed by the Chief Commissioner, which was dismissed.  

However, the officer concerned entertained the second review and  

directed that the plot be restored to the respondent.  The latter  

did not avail benefit of this unusual order and started litigation  

by filing writ petition in the High Court, which was dismissed on  

March 18, 1991.  Thereafter, the respondent again approached the  

Estate Officer with the request to settle his case in accordance  

with  the  policy  of  the  Government  to  restore  the  plots  to  the  

defaulters by charging forfeiture amount of 5%.  His request was  

rejected by the Estate Officer.  He then filed another writ petition  

before the High Court, which was allowed only on the ground that in  

another case pertaining to Smt. Prakash Rani, the Administrator had  

restored the plot despite dismissal of the writ petition filed by  

her.   While  reversing  the  order  of  the  High  Court,  this  Court  

observed as under:-

“We are of the opinion that the basis or the principle, if  it can be called one, on which the writ petition has been  allowed  by  the  High  Court  is  unsustainable  in  law  and  indefensible in principle. Since we have come across many  such instances, we think it necessary to deal with such  pleas at a little length.  Generally speaking, the mere  fact that the respondent-authority has passed a particular  order in the case of another person similarly situated can  never be the ground for issuing a writ in favour of the  petitioner on the plea of discrimination. The order in

favour of the other person might be legal and valid or it  might not be. That has to be investigated first before it  can  be  directed  to  be  followed  in  the  case  of  the  petitioner. If the order in favour of the other person is  found to be contrary to law or not warranted in the facts  and circumstances of his case, it is obvious that such  illegal or unwarranted order cannot be made the basis of  issuing  a  writ  compelling  the  respondent-authority  to  repeat  the  illegality  or  to  pass  another  unwarranted  order  . The extraordinary and discretionary power of the    High Court cannot be exercised for such a purpose. Merely  because  the  respondent-authority  has  passed  one  illegal/unwarranted order, it does not entitle the High  Court to compel the authority to repeat that illegality  over again and again. The illegal/unwarranted action must  be corrected, if it can be done according to law — indeed,  wherever  it  is  possible,  the  Court  should  direct  the  appropriate  authority  to  correct  such  wrong  orders  in  accordance with law — but even if it cannot be corrected,  it is difficult to see how it can be made a basis for its  repetition. By refusing to direct the respondent-authority  to repeat the illegality, the Court is not condoning the  earlier  illegal  act/order  nor  can  such  illegal  order  constitute  the  basis  for  a  legitimate  complaint  of  discrimination.  Giving  effect  to  such  pleas  would  be  prejudicial  to  the  interests  of  law  and  will  do  incalculable mischief to public interest. It will be a  negation of law and the rule of law. Of course, if in case  the order in favour of the other person is found to be a  lawful and justified one it can be followed and a similar  relief can be given to the petitioner if it is found that  the petitioners’ case is similar to the other persons’  case. But then why examine another person’s case in his  absence rather than examining the case of the petitioner  who is present before the Court and seeking the relief. Is  it  not  more  appropriate  and  convenient  to  examine  the  entitlement  of  the  petitioner  before  the  Court  to  the  relief asked for in the facts and circumstances of his  case than to enquire into the correctness of the order  made or action taken in another person’s case, which other  person is not before the case nor is his case. In our  considered opinion, such a course — barring exceptional  situations — would neither be advisable nor desirable. In  other words, the High Court cannot ignore the law and the  well-accepted  norms  governing  the  writ  jurisdiction  and  say that because in one case a particular order has been  passed or a particular action has been taken, the same  must be repeated irrespective of the fact whether such an  order or action is contrary to law or otherwise. Each case  must be decided on its own merits, factual and legal, in  accordance with relevant legal principles. The orders and  actions  of  the  authorities  cannot  be  equated  to  the  judgments of the Supreme Court and High Courts nor can  they  be  elevated  to  the  level  of  the  precedents,  as

understood in the judicial world.”  

[emphasis added]

51. Similar  is  the  ratio  of  the  judgments  in  Narain  Das  v.  

Improvement Trust, Amritsar (1973) 2 SCC 265, Gursharan Singh v. New  

Delhi  Municipal  Committee  (1996)  2  SCC  459,  Secretary,  Jaipur  

Development Authority v. Daulat Mal Jain (supra), Yadu Nandan Garg  

v. State of Rajasthan and others (supra), State of Haryana v. Ram  

Kumar Mann [(1997) 3 SCC 321, Faridabad CT. Scan Centre v. D.G.  

Health Services [(1997) 7 SCC 752], Style (Dress land) v. Union  

Territory, Chandigarh [(1999) 7 SCC 89], State of Bihar v. Kameshwar  

Prasad  Singh  (2000)  9  SCC  94,  Union  of  India  v.  International  

Trading Co. (2003) 5 SCC 437, Ekta Sakthi Foundation v. Govt. of NCT  

of Delhi (2006) 10 SCC 337, Sanjay Kumar Munjal v. Chairman, UPSC  

(2006) 8 SCC 42,  K.K. Bhalla v. State of M.P. and others (2006) 3  

SCC  581,  National  Institute  of  Technology  v.  Chandra  Sekhar  

Chaudhary (2007) 1 SCC 93, Vice Chancellor, M.D. University, Rohtak  

v. Jahan Singh (2007) 5 SCC 77, State of Kerala and others v. K.  

Prasad and another (2007) 7 SCC 140, Punjab State Electricity Board  

and others v. Gurmail Singh (2008) 7 SCC 245 and Panchi Devi v.  

State of Rajasthan and others (2009) 2 SCC 589.

52. Before  concluding,  we  consider  it  necessary  to  enter  a  

caveat.  In all developed countries, great emphasis has been  

laid on the planned development of cities and urban areas.  The  

object  of  planned  development  has  been  achieved  by  rigorous  

enforcement of master plans prepared after careful study of complex  

issues, scientific research and rationalisation of laws.  The people

of  those  countries  have  greatly  contributed  to  the  concept  of  

planned development of cities by strictly adhering to the planning  

laws, the master plan etc.  They respect the laws enacted by the  

legislature for regulating planned development of the cities and  

seldom there is a complaint of violation of master plan etc. in the  

construction of buildings, residential, institutional or commercial.  

In  contrast,  scenario  in  the  developing  countries  like  ours  is  

substantially different.  Though, the competent legislatures have,  

from time to time, enacted laws for ensuring planned development of  

the cities and urban areas, enforcement thereof has been extremely  

poor and the people have violated the master plans, zoning plans and  

building  regulations  and  bye-laws  with  impunity.   In  last  four  

decades,  almost  all  cities,  big  or  small,  have  seen  unplanned  

growth.  In the 21st century, the menace of illegal and unauthorized  

constructions and encroachments has acquired monstrous proportions  

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

affluent  people  and  those  having  support  of  the  political  and  

executive  apparatus  of  the  State  have  constructed  buildings,  

commercial complexes, multiplexes, malls etc. in blatant violation  

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

development plans and even the sanctioned building plans.  In most  

of the cases of illegal or unauthorized constructions, the officers  

of the municipal and other regulatory bodies turn blind eye either  

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

extraneous reasons.  Those who construct buildings in violation of  

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

directly or indirectly abet such violations are totally unmindful of

the  grave  consequences  of  their  actions  and/or  omissions  on  the  

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

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

belonging to this class do not realize that the constructions made  

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

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

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

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

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

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

traffic  congestion  affects  the  health  of  the  road  users.   The  

pedestrians and people belonging to weaker sections of the society,  

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

victims of pollution.  They suffer from skin diseases of different  

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

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

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

pollution  and  adverse  impact  on  the  environment  due  to  traffic  

congestion  on  the  roads  and  chaotic  conditions  created  due  to  

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

time,  taken  cognizance  of  buildings  constructed  in  violation  of  

municipal and other laws and emphasized that no compromise should be  

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

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

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

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

1974 (2) SCC 506, Dr. G.N. Khajuria v. Delhi Development Authority

1995 (5) SCC 762, M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu 1999  

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

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

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

53. Unfortunately, despite repeated judgments by the this Court  

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

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

respect  for  regulatory  mechanism  envisaged  in  the  municipal  and  

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

plans,  sanctioned  plans  etc.,  have  received  encouragement  and  

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

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

action for ensuring rigorous compliance of laws relating to planned  

development of the cities and urban areas and issued directions for  

demolition of the illegal/unauthorized constructions, those in power  

have  come  forward  to  protect  the  wrong  doers  either  by  issuing  

administrative orders or enacting laws for regularization of illegal  

and  unauthorized  constructions  in  the  name  of  compassion  and  

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

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

that the executive and political apparatus of the State take serious  

view of the menace of illegal and unauthorized constructions and  

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

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

similar chaotic conditions.

54. In  the  result,  the  appeals  are  dismissed.   However,  by  

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

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

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

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

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

affidavit is filed on behalf of the appellants by an authorised  

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

November, 2009 and during this period no encumbrances whatsoever  

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

compensation  will  be  claimed  for  the  construction  already  made.  

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

concerned authorities of DDA shall be entitled to take possession of  

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

Contempt Petition Nos. 252-253 of 2001

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

Hence, the contempt petitions are dismissed.

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

......................J.       [G.S. SINGHVI]

New Delhi August 25, 2009.