Delhi High Court
Samir Kohli & Ors. vs Union Of India & Others on 13 April, 2012
Author: S.Ravindra Bhat
Bench: S. Ravindra Bhat, S.P. Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 01.02.2012
Decided on : 13.04.2012
+ W.P.(C) 4489/1995
SAMIR KOHLI & ORS. ..... Petitioners
Through : Dr. Venkataramani, Sr. Advocate with Sh.
Aljo. K. Joseph and Ms. Meenakshi Arora, Advocates,
for Petitioner Nos. 1 to 4.
Sh. Amit Gupta and Sh. Sabin Rana, Advocates, for
Petitioner No.5.
Versus
Union of India & Others ... Respondents
Through : Sh. Jatan Singh, Advocate, for UOI.
Dr. Surat Singh with Ms. Pratibha Chopra, Sh. Gagan Deep Gupta and Sh. Abhishek Mishra, Advocates, for Resp. No. 6.
Sh. Puneet Taneja and Sh. Amrit Anand, Advocates, for Resp. Nos. 8, 9 and 10.
Ms. Avnish Ahlawat and Sh. Nitesh Kumar Singh, Advocates, for D.O.E. Sh. Pawan Mathur, Advocate with Sh. Tejpal Singh, Asst. Director (CS) and Sh. H.K. Arya, Asstt. Director (CS).
WP(C) No.10136/2009
Reserved on : 06.02.2012
Decided on : 13.04.2012
PRATIBHA CHOPRA ...... Petitioner
Through : Dr. Surat Singh, Advocate with Mr. Abhishek Mishra, Advocate Versus GOVT. OF NCT OF DELHI & ORS. ....... Respondents Through : Ms. Avnish Ahlawat, Advocate for DOE.
WP(C) No.4489/1995 Page 1 CORAM: MR. JUSTICE S. RAVINDRA BHAT MR. JUSTICE S.P. GARG MR. JUSTICE S.RAVINDRA BHAT %
1. The writ petitioners, in these proceedings, under Article 226 of the Constitution of India, seek this Court to direct the Central Government and the Delhi Development Authority (hereafter referred to as "DDA"), to develop and carve-out 127 plots out of the land earmarked for public facilities, but rendered surplus in terms of the norms fixed under the Delhi Master Plan, 2001. After the Court issued Show Cause Notice in the Writ Petition, it transpired that the Central Government had directed withdrawal of its earlier direction by Order dated 07.01.1998. Therefore, the writ petitioners sought for amendment of the pleadings, to include the quashing of the decision dated 07.01.1998 whereby the Central Government had withdrawn the earlier direction to the DDA, on 12.01.1994. A Division Bench of this Court, however, by its order dated 27.04.1998 dismissed the amendment application and also rejected the Writ Petition, stating that the basis for the claim did not subsist since the Central Government had withdrawn its earlier directions to the DDA.
2. The writ petitioners had approached the Supreme Court, feeling aggrieved by the rejection of their petition. By order dated 21.09.1998, the Supreme Court allowed the Special Leave Petition and required that the present petition be restored to the file and be heard on merits.
3. The brief facts necessary for deciding this case are that the Kohat Enclave Cooperative Group Housing Society was allotted 50 acres of land in 1966 for development of a residential scheme; initially it had 500 members. This Society had requested for allotment of land. This request was granted by the DDA and WP(C) No.4489/1995 Page 2 on 12.02.1975, the Society's lay-out plan for development of 500 plots was sanctioned. The writ petitioners- who claim to be subsequently added members- contend that the membership at that point of time was 860 and that several members were in the waiting list. On 20.08.1975, a Memorandum of Agreement was entered between the Society's President (for the purpose of development of land), after sanction of lay-out plans etc.), and the DDA. The Society concededly paid ` 23,28,495/-. Consequent to this event, on 12.05.1978, a Perpetual Lease Deed was executed by the Government of India in favour of the Society, for a total area of 107667.15 sq. yards. In terms of Clause 5(a) and 18, members of the Society were sub-lessees of their plots. It was alleged that on 13.12.1977, when the issue of allotment of the available plots to the members of the society was being considered by the Registrar of Cooperative Societies, (hereafter "the Registrar", one of the respondents in these proceedings and referred to as such), apparently, directions were issued by the Registrar on 13.12.1977, under Rule 77 of the Delhi Cooperative Societies Rules, which allegedly lifted the embargo on the society to allot its available plots as per guidelines issued by the DDA and the Registrar.
4. The writ petitioners contend that in 1990, it was found that after allotment of available plots by the Society to its members and after making provisions for social infrastructure in accordance with the existing Master Plan - MPD-91, having regard to the new MPD 2001, "excess" vacant land of 8.5 acres became available to the Society from the area already marked for social infrastructure, including schools, local Shopping Centre etc. It is contended that a representation was made to the Lt. Governor for permission to convert the said 8.5 acres into residential plots for the 127 waitlisted members. The representation mentioned that surplus vacant land was approximately six acres. A similar representation was made, again to the Lieutenant Governor, on WP(C) No.4489/1995 Page 3 29.04.1991. However, the representation was rejected by the DDA on 20.02.1992.
5. It was stated that the DDA's rejection was not deemed final because the matter engaged the attention of the Central Government, which by its letter dated 10.09.1993 required the examination of the case afresh and called for the records. It is in these circumstances that on 09.06.1994, the Central Government directed DDA not to dispose of the alleged surplus land, till final decision is taken.
6. The writ petitioners submit that the request made for conversion of land- use was not unique and that similar requests had been acceded in regard to other societies in the past. They relied upon a noting of the Central Government that so long as additional allotment of land was not requested for, the proposal for conversion of excess or surplus land in the Society could be granted. By the order dated 12.09.1994, the Central Government, exercising power under Section 41(3) of the Delhi Development Authority Act, 1957 (hereafter "1957 Act"), directed the DDA to refuse the society's lay-out plan and enable it to utilize for residential purposes - roughly 8.5 acres of land which were found to be surplus. The relevant part of that direction is as follows:
"3. Shri P.P. Malhotra, President of the Society, vide letter dated 23.8.93, represented to the Minister of Urban Development that DDA has approved amendments in the cases of some societies and land meant for institutional and other such purposes, as per the original approved layout plan had been converted into the residential use. He requested that the society may be granted permission to use its surplus land for carving out residential plots for their long-waiting 127 members.
4. The Master Plan for Delhi-2001 aims at redensification even in cooperative housing societies and, consequently, norms for institutional use such as schools, circulatory spaces etc. have been curtailed. If the entire 50 acres land of the Society is to be laid out according to MPD-
WP(C) No.4489/1995 Page 4 2001 norms, roughly 8.5 acres of land would be rendered surplus and be available for residential purposes.
5. The Government have considered the case of M/s. Kohat Cooperative Housing Building Society Ltd. and are of the view that the society may be allowed to convert excess land for residential use as per norms/provisions of MPD-2001.
6. Now, therefore, the Central Government, in exercise of the powers vested under section 41(3) of the Delhi Development Act, 1957 directs DDA to approve the revised layout plan of the Society. So as to enable it to utilize for residential purpose roughly 8.5 acres of excess land found to be surplus out of land meant for schools, tot-lots, local shopping service personnel, etc. as per MPD-2001 norms to accommodate 127 members as per waiting list already submitted to the DDA subject to determination of eligibility of members by the Registrar, Cooperative Society. This is further subject to the condition that, irrespective of the waiting list DDA would not allot any additional land to the Society over and above the 50 acres already in their possession."
7. The petitioners contend that when the Society sent a revised lay-out plan, providing for additional 127 plots, the DDA rejected it. The averments also mention about a previous writ proceeding, being W.P. 4548/2011, opposing the conversion of land which had been earlier earmarked for two higher secondary schools and local shopping complex. In addition, it was stated that some civil suits were filed by waitlisted members for declaration and permanent injunction; they also sought a consequential decree that the society should be restrained from holding elections. Apparently, during the pendency of the suit, the society withdrew the list of waiting members. The petitioners also refer to a letter dated 27.07.1995 from the DDA to the Central Government that the Chief Minister of the National Capital Territory of Delhi and a Member of Parliament had expressed their consent to the Central Government directions dated 12.09.1994, permitting conversion of the land and amendment of the lay-out plan. Apparently, in another set of proceedings, allottees of the society had filed a writ petition, questioning the proposed conversion of plots earmarked for WP(C) No.4489/1995 Page 5 facilities. It was, therefore, contended that in the light of these later developments, and the letters dated 12.01.1995 and 13.07.1995 by the Minister for Urban Affairs, Central Government, it was evident that the DDA was bent upon defeating the Central Government's directions.
8. The Petitioners submit that the Central Government could not have withdrawn its directions by its impugned order dated 07.01.1998, which is unsustainable in law because the Act does not provide for any review under Section 41(3). The plea of estoppel, prohibiting the Central Government from recalling its previous order dated 12.09.1994 has also been taken. It is alleged that the impugned withdrawal order is unreasoned and arbitrary. The petitioners also relied on a file noting by the then Minister, Shri Ram Jethmalani, expressing that the order dated 7-1-1998 was unsustainable and opposed to law.
9. Learned Counsel also highlighted the inconsistent positions taken by the DDA. It was pointed-out in this regard that in the counter-affidavit in response to W.P. 4548/1995, the DDA had opposed the writ petitioner's challenge and expressly stated that the Central Government's previous directions under Section 41(3), dated 12.09.1994 had been carried-out and implemented. As opposed to this, in the counter affidavit, in the present case, i.e., W.P. 4489/1996, the DDA submitted that the Central Government's directions were flawed. This latter stand, argued the writ petitioners, was opposed to the scheme of the 1957 Act, because the DDA being a subordinate authority, did not have the locus standi to question the Central Government's orders. A similar contradiction appeared on the record in the Union of India's affidavit in W.P. 4548/1994 filed on 09.05.1997 when it supported its direction to the DDA, to accept the Society's proposal for conversion of the excess lands. It is argued that the rationale for withdrawal of the earlier direction dated 12.09.1994 through the impugned judgment dated 09.01.1998 is not only unconvincing but WP(C) No.4489/1995 Page 6 mechanical and does not amount to any reason. The writ petitioners submit that once a decision was taken to permit conversion of the excess lands and allotment of 127 residential plots, the Central Government had exhausted its powers and could not have reviewed the matter. Besides this, submitted the Petitioners, a subsequent development took place; the society's management was restored pursuant to an order of the Division Bench in another writ petition, requiring the holding of elections. Also, the question of additional membership of the 127 persons was finally settled by an award, of one Shri Rajesh Mishra, nominated by the Registrar of Co-operative Societies, dated 24-3-2005. By the award, it was held that the said 127 individuals were entitled to be treated as members of the society.
10. It was argued that the stand of the Central Government and the DDA with regard to ownership of the 7.87 acres of land is without authority of law and factual foundation. Learned Counsel submitted that on a fair construction of the various provisions of the agreement and lease deed, the entire land allotted to the Society vested in it. If the vacant land meant for social infrastructure and public amenities such as schools were to be worked-out on the basis of the norms admittedly brought into force later through MPD-2001, six acres of land were available with the Society for development and creation of residential plots to cater to the growing needs of its members and also for allotment to others waiting for a long time. It was argued that the Central Government, while issuing the directions on 12.09.1994 was satisfied about the calculations regarding use of this land submitted on behalf of the Society through an architect. There was no change in these circumstances, necessitating re-think; and on the contrary, the DDA had no explanation with respect to how it determined that 3.36 acres of land was deficient vis-à-vis public utilities and infrastructure on an application of the new norms. As a result, the Central Government even otherwise on the merits could not have recalled its previous WP(C) No.4489/1995 Page 7 decision which created an entitlement in favor of the society, dated 12.09.1994.
11. It was urged by the Petitioners' Counsel that having once exercised the power under Section 41 (3), and issued a direction to the DDA, on 12-9-1994, the Central Government could not have resorted to that power again, for annulling its previous decision. It was argued that the decision of the Central Government was in a quasi judicial supervisory capacity, and resulted in creation of entitlements in favour of the Society. Therefore, once such power was exercised, the Central Government could not invoke it again. Counsel relied on the decision reported as Indian National Congress v Institute of Social Welfare 2002 (5) SCC 685, particularly the following observations:
"..where there are two or more parties contesting each others claim and the statutory authority is required to adjudicate the rival claims between the parties, such a statutory authority was held to be quasi-judicial and decision rendered by it as a quasi-judicial order. Thus, where there is a lis or two contesting parties making rival claims and the statutory authority under the statutory provision is required to decide such a dispute, in the absence of any other attributes of a quasi-judicial authority, such a statutory authority is quasi-judicial authority.
But there are cases where there is no lis or two contending parties before a statutory authority yet such a statutory authority has been held to be quasi-judicial and decision rendered by it as a quasi-judicial decision when such a statutory authority is required to act judicially. In R. v. Dublin Corpn. ((1878) 2 IR R 371) it was held thus :
"In this connection the term judicial does not necessarily mean acts of a Judge or legal tribunal sitting for the determination of matters of law, but for purpose of this question, a judicial act seems to be an act done by competent authority upon consideration of facts and circumstances and imposing liability or affecting the rights. And if there be a body empowered by law to enquire into facts, makes estimates to impose a rate on a district, it would seem to me that the acts of such a body involving such consequence would be judicial acts."
WP(C) No.4489/1995 Page 8
.............. ............. ...............
The legal principles laying down when an act of a statutory authority would be a quasi-judicial act, which emerge from the aforestated decisions are these :
Where (a) a statutory authority empowered under a statute to do any act
(b) which would prejudicially affect the subject (c) although there is no lis or two contending parties and the contest is between the authority and the subject and (d) the statutory authority is required to act judicially under the statute, the decision of the said authority is quasi-judicial."
12. It was argued that in a recent decision, reported as Manohar Lal (dead) v Ugrasen (dead) 2010 (11) SCC 557, the Supreme Court had occasion to deal with provisions that were in pari materia with Sections 41 (1) and 41 (3) of the DDA Act; it was held that an order once made in exercise of the power under Section 41 (3) could not be varied or modified. Reliance was placed on the following observations of the Supreme Court:
"34. The instant case requires to be examined in the light of the aforesaid certain legal propositions. Section 41 of the U.P. Urban Planning and Development Act, 1973 reads as under: "41. Control by State Government-(1) The Authority, the Chairman or the Vice-Chairman shall carry out such directions as may be issued to it from time to time by the State Government for the efficient administration of this Act. (2) .......................................... (3) The State Government may, at any time, either on its own motion or on application made to it in this behalf, call for the records of any case disposed of or order passed by the authority or Chairman for the purpose of satisfying itself as to the legality or propriety of any order passed or direction issued and may pass such order or issue such direction in relation thereto as it may think fit:
Provided that the State Government shall not pass an order prejudicial to any person without affording such person a reasonable opportunity of being heard. (4) ......................................"
35. Clause (1) thereof empowers the State Government to issue general directions which are necessary to properly enforce the provisions of the Act. Clause (3) thereof make it crystal clear that the State Government is a revisional authority. Therefore, the scheme of the Act makes it clear WP(C) No.4489/1995 Page 9 that if a person is aggrieved by an order of the authority, he can prefer an appeal before the Appellate Authority i.e. Divisional Commissioner and the person aggrieved of that order may file Revision Application before the State Government. However, the State Government cannot pass an order without giving opportunity of hearing to the person, who may be adversely affected.
36. In the instant case, it is the revisional authority which has issued direction to GDA to make allotment in favour of both the parties. Orders had been passed without hearing the other party. The authority, i.e. GDA did not have the opportunity to examine the case of either of the said parties. The High Court erred in holding that Clause (1) of Section 41 empowers the State Government to deal with the application of an individual. The State Government can take only policy decisions as to how the statutory provisions would be enforced but cannot deal with an individual application. Revisional authority can exercise its jurisdiction provided there is an order passed by the lower authority under the Act as it can examine only legality or propriety of the order passed or direction issued by the authority therein.
37. In view thereof, we are of the considered opinion that there was no occasion for the State Government to entertain the applications of the said parties for allotment of land directly and issue directions to GDA for allotment of land in their favour."
13. The petitioners' Counsel urged that the structure of the enactment, i.e the 1957 Act, peculiarly vested the authority concerned, i.e the Central Government, with the power to issue general directions under Section 41 (1); however, the power under Section 41 (3) was specific to particular cases only. The consequences which flowed from this conscious legislative choice were two fold. One, the decision or determination taken in exercise of power in a specific case, under Section 41 (3) was unalterable, as it amounted to vesting a right in favour of the party for whose benefit the direction is issued. That determination cannot be made in any manner, except as has been expressly provided. Two, the existence of a specific power under Section 41 (3) to issue directions in specific cases, negated the power to recall or alter a decision once taken, under that provision, by invoking the general power, under Section 41 WP(C) No.4489/1995 Page 10 (1). Reliance was placed on the H.W.R. Wade's Administrative Law (Eighth Edition, Oxford University Press, pages 235-238), and the judgment of Vaisey J in Re 56 Denton Road, Twickenham 1953 (Ch) 51,that:
"... the plaintiff's Counsel offered for my acceptance the following proposition: that where Parliament confers upon a body such as the War Damage Commission the duty of deciding or determining any question, the deciding or determining of which affects the rights of the subject, such decision or determination made and communicated in terms which are not expressly preliminary or provisional is final and conclusive, and cannot in the absence of express statutory power or the consent of the person or persons affected be altered or withdrawn by that body. I accept that proposition as well founded and applicable to the present case."
Counsel elaborated the submission by saying that the Central Government's decision, once taken creates an irrevocable right in favour of the beneficiary, in terms of Section 41 (3), which cannot be upset.
14. Counsel relied on the decision reported as Gadde Venkateswara Rao vs. State of AP AIR 1966 SC 828, to say that when the government or an authority is conferred specific power of supervision, in the absence of a special provision, authorising review, the department or agency is not competent to review its decision. Reliance was also placed on the decision reported as Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji AIR 1970 SC 1273, particularly the following proposition:
"It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication."
In a similar vein, the decision of the Supreme Court in Dr. Kashinath G. Jalmi v. The Speaker 1993 (2) SCC 703 was pressed into service, to say that without a statutory authority, an administrative, quasi judicial or public agency cannot exercise the power of review, by implication, unless a specific provision exists in that regard. The judgment in H.C. Suman v Rehabilitation Ministry Employees Co-operative House Building Society Ltd 1991 (4) SCC 485 to the WP(C) No.4489/1995 Page 11 effect that a quasi judicial power, once exercised becomes final, and cannot be reviewed unless the authority concerned has specific power to do so, was relied on; likewise the decision in Kuntesh v Management, H.K. Mahavidyalaya AIR 1987 SC 2176 was relied on. In that judgment, it was held that "..a quasi judicial authority cannot review its own order unless the power of review is expressly conferred on it by the statute..."
15. It was next argued that the nature of power under Section 41 (3) was such that the Central Government's decision, once taken, rendered it functus officio; it ceased to have jurisdiction to deal with the matter, or arrive at a different conclusion, in view of the limited nature of the provision itself. Being a supervisory power, and a quasi judicial one, the Central Government could not treat it as an administrative matter, and keep revisiting the issue, and modifying or altering its decisions. In this regard, reliance was placed on the judgment reported as State Bank of India v S. N. Goyal 2008 (8) SCC 92.
16. It was argued that the DDA, being a subordinate authority, under the 1957 Act, could not question the decision of the Central Government, or refuse to obey it, in view of Section 41 of the Act, and Section 41 (3) in particular. Reliance was placed on the decisions reported as Abhishek Kumar v State of Haryana 2006 (12) SCC 44 and State of Kerala v Kurian Abraham 2008 (3) SCC 582.
17. The last submission of the Petitioners was that even if it were assumed for arguments' sake that a power to recall or pass a fresh order existed, there was no material discernable from the records, justifying such exercise of power. It was argued in this context that the reasons for every decision are to be seen from the order in question, and cannot be improved upon by the authority, which is precluded from furnishing such reasons through affidavits in Court, when the issue arises. Reliance was placed on the decision reported as WP(C) No.4489/1995 Page 12 Mohinder Singh Gill v. Chief Election Commissioner, New Delhi (1978) 1 SCC
405. Respondents' stand
18. The Society had been superseded and had been placed under the control of an Administrator. The Administrator through a counter-affidavit filed sometime in 2000, stated that there was no waitlisted members' list and that the data reports for 1994-1995 onwards also supported this aspect. The Administrator also contended that the General Body of the Society had neither passed a Resolution to nearly 127 members in 1988 nor had it empowered its Committee to take any steps. The Administrator stated that this mandate had to be fulfilled under Rule 24(ii) of the Delhi Cooperative Societies Act, 1973. It is also contended that as all residential plots had been allotted as early as in 1978 to its members, there was no spare land. Notice inviting applications for enrolling waitlisted members was not issued, and none of the applications allegedly submitted in 1987-88 for enrolment as waitlisted members were accompanied by declarations that the applicant was not a member of any other cooperative society, as required by law. These irregularities were highlighted. It was mentioned that 36 individuals who had applied for waitlisted membership had not even signed the applications despite that their names have appeared in the list. Rule 30(ii) of the Rules is also cited to say that the application had not been disposed of within the time stipulated by law and that lastly, the Registrar of Cooperative Societies by orders dated 14.07.1992 and 15.07.1992 had cancelled, a list of 21 senior most wait listed members. The membership of other waitlist members had been cancelled on 13.12.1991. The Administrator's affidavit also revealed that two office bearers of the Society had allegedly played fraud on the Central Government and successfully ensured a direction for conversion of the land when in fact 7.87 acres of land earmarked for WP(C) No.4489/1995 Page 13 infrastructure which were claimed to be excess or surplus, had been allotted by the DDA to Directorate of Education (DoE) as early as in 1984 for which the Directorate made payment of ` 23,62,801/- through letter dated 05.01.1985.
19. The DDA in its counter affidavit, and submissions, contends that the land developed by the Society pursuant to the rights conferred in terms of the agreement dated 20.08.1975 was never in respect of 500 residential plots comprising 107,667.15 sq. yards. The entire remaining area was never owned by the society; consequently the area claimed as surplus was never part of the lease. Reliance is also placed upon the lease deed entered into by the Society with the President. DDA contends that the members who were allegedly enrolled subsequently cannot now maintain writ petition for permission to use other areas since it was never allotted to the Society. The DDA, however, submits that the basic terms of the writ petition, i.e. that with changes in the development and enforcement of a new planning norm, i.e. MPD-2001; corresponding alterations to existing lay-out plans cannot be made. It was submitted that such an interpretation is impermissible because lay-out plans in respect of Societies and residential areas, previously sanctioned under the old MPD would continue to be governed by the old norms.
20. It has been specifically stated that "the question of approval of revised lay-out plan, if permissible under the building bye-laws and Master Plan of Delhi, would have arisen only after the said six acres of land had been allotted to the Respondent No.5 Society. The said lands have never been allotted and payment in respect thereto never been received. Therefore, considering the revised lay-out plan does not arise."
21. In the DDA's submissions made during the hearing, it relied on the letter dated 05.09.1995 from the Central Government seeking clarification on the issue of surplus land. In that letter, the Central Government adverted to the WP(C) No.4489/1995 Page 14 DDA's position that there was deficiency of 3.36 acres in the provision of facility by the Society even in the original plan; an aspect which was not pointed-out by the DDA earlier. Therefore, clarification was sought from the DDA about the conclusions arrived at by it. To this, submitted DDA, a letter was issued on 19.09.1995, stating that 30% area in the Kohat Cooperative Group Housing Society was reserved for facilities in the originally approved lay-out plan. It was submitted that even if the MPD-2001 norms were applied, as contended by the Society, there was no question of a surplus area but in fact the earlier approved plan fell short by 3.6 acres.
22. It was submitted that after due consideration of all the relevant aspects, including the applicability of new norms to existing societies, whether any land was in fact surplus, having regard to the express terms of the agreement of 1975 and the lease deed of 1978 as well as the application of mind with regard to the MPD-2001 norms, the Central Government felt that its previous direction under Section 41(3) required re-examination and if necessary, needed to be recalled. In these circumstances, the Central Government issued a Show Cause Notice to the Society - which then was under the management of Administrator. The notice was served on the Administrator; which was dated 04.12.1997. The relevant extract of the notice is as follows:
"To, The Administrator Kohat Coop. House Bld. Society Ltd., Kohat Enclave, Pitampura, Delhi-110 034.
Subject: Show-cause notice regarding withdrawal of directions under Section 41(3) of the Delhi Development Act 1957 in respect of permission to Kohat Coop. House Building Society to utilize stated surplus land to carve out residential plots.
WP(C) No.4489/1995 Page 15
Sir,
As you are aware the Central Govt. in exercise of the powers vested under section 41(3) of the Delhi Development Act, 1957 directed Delhi Development Authority to approve the revised lay-out plan of the Kohat Cooperative House Building Society Ltd. so as to enable it to utilize for residential purpose roughly 8.5 acres of excess land found to be surplus out of land meant for schools, tot-lots, local shopping service personnel etc. as per MPD 2001 norms to accommodate 127 members as per waiting list submitted to the DDA subject to determination of eligibility of members by the Registrar, Cooperative Societies.
2. DDA has reported that the facility area provided in the original approved plan of the Society was already short by 3.36 acres and the Society had based its representation regarding the availability of surplus land on a faulty appreciation of MPD-2001. The MPD-2001 stipulates that an average area of 9.55 sq. mtr. Is required for community facilities per person. Hence, the contention of the Society that under the terms of MPD-2001, surplus area is available is based on mis-reading of the norms. As per MPD-2001, the norms which were approved prior to the enforcement of this plan are deemed to have been approved under this plans. Further, the Registrar, Cooperative Societies, Govt. of Delhi has clarified that the waiting list at the time it had purchased the land from DDA and constructed the flats thereon.
It is, therefore, suggested that the DDA may like to consult this office before considering such proposals. If necessary a meeting may be arranged before taking a policy decision which will have far reaching consequences.
XXXXXXXX"
It was submitted that the show cause notice was evident of the party likely to be affected, i.e. the Society, being given an opportunity to be heard so as to enable consideration of its views. In this context, it was argued - based on the Union of India's affidavit, that the subsequent Minister's file noting (that of Shri Ram Jethmalani) did not result in any consequential order; the letter was enclosed by an OSD, to a Member of Parliament. According to the respondents' submission, WP(C) No.4489/1995 Page 16 such OSD is not an authorized person under the Rules of Business, and there was indeed no directive from the minster, to withdraw the second - impugned order dated 7.1.1998.
23. The DDA's Counsel relied upon a judgment of the Division Bench of this Court in Panchsheel Cooperative House Building Society v. DDA (LPA 375/2003), where it was held that even if the entire land for a Society's lay-out is handed over to it for development, in terms of the lease deed and the documents which pertain to the society, the latter would not be entitled to claim refund of any payment of the premium or towards the sums spent for development of land which is not allotted to it, but which forms part of the public amenities in the colony. The Society would be entitled only to the residential portions of the layout or the colony, for allotment to its members. This decision, it was submitted - was approved and applied in Preet Nagar Cooperative House Building Society v. Preet Nagar Residents' Welfare Association (C.W. 1264/2003) (decided on 17.08.2007). In the latter decision it was held that while the entire land may be handed-over to a Society for development, the lessor or DDA's discretion is not fettered, in the matter of allotment of land earmarked for community services to bodies or agencies other than the society.
24. The DDA, therefore, emphasized that the basic argument of the Society and the writ petitioners, i.e. that there was surplus land which belonged to the Society, had no legal sanctity. DDA lastly contended that there was no change in circumstances, so far as the lack of entitlement to the society to develop the so called excess land was concerned, and the arbitrator's award of 2005 in no way altered this
25. The Directorate of Education, GNCTD had been impleaded as party respondents during the pendency of the proceedings. This respondents' contention was that the DDA had allotted 7.87 acres of the land claimed or WP(C) No.4489/1995 Page 17 alleged by the writ petitioners to be excess and surplus and belonging to it - as far back as in 1992. It refers to allotment letter dated 04.02.1984 in that regard and also submits that an amount of ` 23,62,601/- was paid towards cost of the land to the DDA. The Directorate of Education also argues that out of the 7.87 acres so allotted, 3.937 acres of land earmarked to the school had been handed over to it but possession of the remaining four acres had not been handed-over. It refers to an interim order availed pursuant to the liberty granted by the Court on 15.09.2005 as well as photographs. The Govt. of NCT of Delhi states that even the 3.9 acres of land handed-over by it could not be utilized fully on account of another interim order permitting limited use dated 24.04.2006, as a result of which the imminent and urgent need of the residents of the locality could be met with by the said use of the 3.9 acres of land - half of what had been paid to by DDA, by putting-up temporary constructions through porta- cabins, from which a primary school is being operated for the last six years. Another writ petition - (WP 10136/2009 Pratibha Chopra v Govt of NCT & Ors) seeks a direction from the Court that the land for which the Department of Education, Govt. of NCT of Delhi had made payments, ought to be handed over to it; besides urging the same submissions as in the case of the DDA and the Govt. of NCT, Counsel for this petitioner also stressed that even under the new Development Code for MPD 2001, there is no surplus or excess land as contended by the petitioners, and the society.
26. From the above discussion, it is evident that the following issues arise for consideration of this Court:
(a) Whether the power of the Central Government under Section 41 of the Act is quasi-judicial in nature;
(b) Whether it is open to the Central Government to recall its previous directions, having regard to the terms of Section 41 of the 1957 Act.
WP(C) No.4489/1995 Page 18
(c) Whether the land in question allotted to the Society belonged to it or could be dealt with by the DDA, as contended by the latter.
(d) Whether there was non-application of mind in respect of the impugned order dated 7-1-1998.
Analysis and Findings Point No.1: Nature of power under Section 41 (3) of the 1957 Act - quasi judicial or judicial
27. In A.K. Kraipak v Union of India (AIR 1970 SC 150) the Supreme Court clarified what would be quasi judicial acts, and what would be administrative acts:
"The dividing line between an administrative power and a quasi- judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi- judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised."
(emphasis supplied) In State of Orissa v. Dr.(Miss) Binapani Dei (1967) 2 SCR 625 it was observed that:
"Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry..."
28. The scheme of the 1957 Act shows that the dominant object was the creation of DDA in order to secure the planned development of Delhi (as can be WP(C) No.4489/1995 Page 19 seen under Section 3(1)). This is to be achieved by the preparation of Master Plan under Section 7(1) and Zonal Development Plans under Section 8(1). Under Section 3(3) (a) the Administrator of the Union Territory of Delhi shall be the Chairman ex officio (of DDA). Under Section 6, DDA is under a duty to promote and secure the planned development of Delhi. The Master Plan, enjoined under Section 7(2)(a) defines the various zones into which Delhi may be divided for the purpose of development and indicates the manner in which the land in each zone is proposed to be used (whether by the carrying out thereon of development or otherwise) and the stages by which any such development shall be carried out; and by clause (b) serves as a basic pattern of framework within which the zonal development plans of the various zones may be prepared. Section 12(1) provides that as soon as may be after the commencement of this Act, the Central Government may, by notification in the Official Gazette, declare any area in Delhi to be a development area for the purposes of this Act. After the commencement of the Act, Section 12(3) enjoins that no development of land shall be undertaken or carried out in any area by any person or body (including a department of Government) unless, broadly, the DDA's consent is obtained. The task of preparing the plans - Master, as well as zonal, is that of the DDA. The only rider to the exercise of this power is that the DDA has to notify draft Master Plan, to enable the citizens' to place their views. It has to consult the Central Government also on this aspect. Once a Master Plan or zonal development plan is brought into force, the DDA has exclusive power and responsibility to oversee its enforcement and implementation. It is in this context that the power under Section 41 has been given to the Central Government. That provision reads as follows:
"41. Control by Central Government (1) The Authority shall carry out such directions as may be issued to it from time to time by the Central Government for the efficient administrative of this Act.
WP(C) No.4489/1995 Page 20 (2) If in, or in connection with, the exercise of its powers and discharge of its functions by the Authority under this Act, any dispute arises between the Authority and the Central Government the decision of the Central Government on such dispute shall be final. (3) The Central Government may, at any time, either on its own motion, or on application made to it in this behalf, call for the records of any case disposed of or order passed by the Authority for the purpose of satisfying itself as to the legality or propriety of any order passed or direction issued and may pass such order or issue such direction in relation thereto as it may think fit:
Provided that the Central Government shall not pass any order prejudicial to any person without affording such person a unreasonable opportunity of being heard."
A previous Division Bench ruling of this Court, in Delhi Auto & General Finance v Union of India (WP. No. 3879/2003, decided on 4-3-2005) discussed the scope of the provision in the following manner:
"A reading of the above provision shows that each subsection covers different fields. The first subsection empowers the Central Government to issue directions to DDA for the efficient administration of the Act. This power is general in nature. Similar provisions are found in several enactments that create statutory bodies or corporations. It is in line with the general scheme of the enactment whereby various actions such as formulation of plans, be they master or as zonal development plans, modification of layout plans, framing of regulations under the Act, etc. have to be with the approval of the Central Government. This subsection only serves to underline the control of the Central Government on the DDA. The second subsection emphasizes this idea further; it provides that if there is a dispute about any issue between the Central Government and DDA, the decision of the Central Government is final.
39. The third sub-section provides that the Central Government has the power to call for the records of any case disposed of, or order passed by the DDA, to satisfy itself as to the legality or propriety of any decision, and pass an order or issue a direction in that regard. If an order adverse to anyone is to be passed, it has to be done after giving notice and opportunity of hearing.
WP(C) No.4489/1995 Page 21
40. The first two sub-sections establish supervisory control of the Central Government over the DDA. Apart from other provisions in the Act, such as Sections 9, 10, 11-A, 12, 21 etc. which deal with specific matters, in our opinion, the Central Government, is vested with residual supervisory powers to exercise overall control and supervision, which it does in regard to general policy matters "for efficient administration" of the Act.
41. A reading of the third sub-section, on the other hand, points at a difference in the quality and character of power conferred. It is akin to revisional power, where the Central Government can review or reverse decisions of DDA. Statutes vesting such power of revision is known; Courts have dealt with the nature of such powers. It has been generally held that such power of statutory revision has to be liberally construed. Thus, where the revisional authority is empowered to call for the record suo motu and then exercise power, it has been held that the authority would not be acting beyond jurisdiction if it makes further inquiry, on the basis of materials, while determining legality or propriety of the inferior authority's order (See State of Kerala v. Abdulla AIR 1965 SC 1585; Swastik Oil Mills v. Munshi AIR 1968 SC 843; Ghulam Qadir v. Special Tribunal, 2002 (1) SCC 33). It is thus apparent that unlike the generality of the power under Section 41(1), the power under Section 41(3) is specific. It enables the Central Government to reach at orders or policies made or formulated in relation to individuals. The proviso enacts a caveat; if any person is to be adversely affected by the reversal of a decision or order (made by the DDA) he has to be given a hearing.
42. The above analysis would show that Section 41(1) and (2) deal with power of the Central Government to give directions to the DDA. Section 41(3), on the other hand, empowers the former to review the decisions of DDA, and reverse or modify them."
The Petitioners' submission was that the phraseology adopted by Section 41 (3) pointed to the content of that provision, being essentially quasi judicial. Reliance was placed on the Supreme Court ruling in Indian National Congress (supra) in this regard. As observed by the decision in Delhi Auto (supra) the power is essentially supervisory. If one views the structure of Section 41, it is clear that sub-section (1) empowers the Central Government to generally direct the DDA in regard to matters under the Act. This would in most cases extend to broad WP(C) No.4489/1995 Page 22 policy making concerns, where zoning, prioritization of areas of planning, use of land or other resources, etc are involved. Sub-section (2) confers primacy on the views of the Central Government. This provision is essential, because in its absence, it can be argued that DDA would have the last word in all matters that fall within its domain. Sub-section (3) clarifies that any decision or order of the DDA, in any case, can be reversed, or modified by the Central Government after calling for the records. Although cast in specific supervisory phraseology, one cannot help discerning an overlap between this provision and Section 41 (2); in a sense, this provision also enables decided cases to be reviewed or modified, in exercise of the dominant power of the Central Government, under Section 41 (2).
29. The question whether the power under Section 41 (3) is quasi-judicial or not has to be contextualized in the overall setting of the provision. DDA in its myriad functions, as policy maker, town planner, agency for implementation of housing and other building policies, is obliged to decide various issues. Most of these are not judicial, or quasi judicial; they are certainly administrative in nature and require application of mind to the relevant considerations. Thus, for instance, if the DDA has to decide whether a class of services ought to be permitted within a residential locality, it would have to first see the relevant provisions of the Master Plan; it would also consider the impact of its decisions, on the amenities existing in the area, and the likely additional pressures which they would be subjected to, etc. However, the interested parties cannot claim as a matter of right that their proposals ought to be accepted, or that the DDA should give each of them, a hearing, and issue a reasoned order. Now, in a given case, concerning an individual or a collective, such as a co-operative society, the same considerations would apply. If the DDA consequently, forms an opinion in such individual cases, those decisions would not stand on a different footing from the larger policy paradigm with which Sections 41 (1) and 41 (2) are WP(C) No.4489/1995 Page 23 concerned. Unless it is shown that the decision in an individual case is likely to result in an adverse consequence to the party concerned (i.e for instance change of plot user in a lay-out plan, in the case of a plot owner or plot-allottee from commercial to residential, etc) the decision cannot be considered "quasi judicial". Even so, the safeguard, to allay all apprehensions, is enacted through the proviso to Section 41 (3) that an order which can result in an adverse consequence to a party, should be preceded by notice to her (or him).
30. There is another way of looking at the matter. If one views the power of the Central Government in the overall setting of a law that essentially deals with town planning, the "dispute" between DDA and the Central Government is a unique one; it is as to the policy that the former has to adopt. Thus, the view of the latter is given primacy. In amplification of this power, it is clarified, by Section 41 (3) that the Central Government can reverse decisions of DDA, in pending or closed cases. In such an eventuality, the DDA would be the "aggrieved party" so to speak. If the logic of a dispute, to be decided by the Central Government in a "quasi judicial" capacity is to be accepted, it would lead to startling results. Town planning would be chaotic, and paralysed; every decision of the DDA, which implicates "a case" would be reviewable under Section 41 (3) and the DDA as well as the concerned party would have to be heard; the Central Government would then have to issue detailed reasoned orders. This would bog the entire process of planning and implementation of the Master and other plans in a modern, and efficient manner - a result surely not intended by Parliament. It is thus held that the power under Section 41 (3) of the Act is a supervisory one, and not "quasi-judicial" in the sense traditionally understood. However, there can be no doubt that whatever be the character of the order, it would be reviewable under Article 226 of the Constitution, in terms of the settled authorities, on the basis of established public law principles, to the extent such orders are reviewable.
WP(C) No.4489/1995 Page 24 Question No. (b) Is it open to the Central Government to recall its previous directions, having regard to the terms of Section 41 of the 1957 Act
31. The next submission of the Petitioners was that in the absence of any statutory grant, it was impermissible for the Central Government to have issued the impugned order, dated 7-1-1998, recalling the previous order made by it on 12-9-1994. Central to this submission is reliance on the proposition that in the absence of a specific power, a statutory or quasi judicial tribunal cannot review or alter its decision. Reliance is placed upon the decisions in Manohar Lal, Gadde Venkateswara Rao, Patel Narshi Thakershi, and Re 56 Denton Road, Twickenham, to say that power under Section 41 (3) could be exercised only once, and the order or decision, once made, cannot be recalled or reviewed.
32. There is no doubt that in the decisions relied upon, there are observations saying that sans a statutory empowerment, an authority does not possess the power to review or recall its earlier order. The question is, whether the power under Section 41 falls in that category which renders the decision of the body concerned, i.e. the Central Government, irrevocable. As held earlier, the power under Section 41 is not judicial or quasi judicial in nature; it is undoubtedly supervisory, and gives the Central Government final say in regard to all aspects under the 1957 Act- primacy is accorded to its decision, over that of the DDA. In a sense, it is an oversight power, with the Central Government as the overall decision maker about the various policy issues under the Act- both broad policies and individual ones. It is akin to regulatory power. In the decision reported as U. P. Power Corporation Ltd., Appellant V. National Thermal Power Corporation Ltd , (C.A. No. 1110 of 2007 etc, decided on 3-3-2009 by the Supreme Court) it was held that:
"But, indisputably, the regulatory provisions are required to be applied having regard to the nature, textual context and situational context of each statute and case concerned. The power to regulate may include the power to grant or refuse to grant the licence or to require taking out a WP(C) No.4489/1995 Page 25 licence and may also include the power to tax or exempt from taxation. It implies a power to prescribe and enforce all such proper and reasonable rules and regulations as may be deemed necessary to conduct the business in a proper and orderly manner. It also includes the authority to prescribe the reasonable rules, regulations or conditions subject to which the business may be permitted or may be conducted. [Deepak Theatre v. State of Punjab 1992 Supp. (1) SCC 684 at 687]. Even otherwise the power of regulation conferred upon an authority with the obligations and functions that go with it and are incidental to it are not spent or exhausted with the grant of permission. [State of U.P. v. Maharaja Dharmander Prasad Singh (1989) 2 SCC 505] In that sense, the power of Central Commission stricto sensu is not a judicial power."
33. Earlier, in State of U.P. v. Maharaja Dharmander Prasad Singh (1989) 2 SCC 505, the Supreme Court had rejected the contention of absence of review power being an impediment for the reconsideration of a previous decision, and stated as follows:
"53. It is erroneous to equate the powers under Sections 14 and 15 of the Act with judicial power which, in the absence of express provisions, could not enable the review of a judicial order after its exercise on the principle of functus officio. In Sardul Singh v. District Food and Supplies Controller, Patiala a statutory order, promulgated under Section 3 of the Essential Commodities Act, 1955, contained a provision enabling the cancellation of a "permit" under certain circumstances. The contention was that Section 3 of the parent "Act" itself did not delegate to the subordinate legislative authority to make such a provision for cancellation and, therefore, the provision for cancellation in the subordinate legislature was ultra vires. There was no provision in the Act expressly conferring the power to make a provision for cancellation of the permit. Section 3(2)(d) of the parent Act merely enabled the government to make orders "for regulating by licenses, permits or otherwise, the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity" and Section 3(2)(j) merely enabled government to make orders for incidental and supplementary matters (emphasis supplied). The question arose whether provisions for cancellation of the permits envisaged in para 10 of the particular statutory order could be said to be relatable to or justified as a matter WP(C) No.4489/1995 Page 26 incidental or supplementary to regulation. This Court held that the power to cancel was an "incidental and supplementary matter."
The argument strenuously made by the Petitioners was rejected more pointedly in R.R. Verma v Union of India 1980 (3) SCC 402, by the Supreme Court, in the following terms:
"The principle that the power to review must be conferred by statute either specifically or by necessary implication is not applicable to decisions purely of an administrative nature. It is applicable to quasi judicial powers vested in it by the statute. To extend the principle to pure administrative decisions would indeed lead to untoward and startling results. Surely, any government must be free to alter its policy or its decision in administrative matters. If they are to carry on their daily administration they cannot be hidebound by the rules and restrictions of judicial procedure though of course they are bound to obey all statutory requirements and also observe the principles of natural justice where rights of parties may be affected. If administrative decisions are reviewed, the decisions taken after review are subject to judicial review on all grounds on which an administrative decision may be questioned in a Court."
34. There is another dimension to the question. It is Section 21 of the General Clauses Act, 1897, which empowers every authority clothed with any statutory power, to issue orders rescinding, varying or altering previous orders or notifications. It reads as follows:
"21. Power to issue, to include power to add to, amend, vary or rescind, notifications, order, rules or bye-laws. - Where, by any Central Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any) to add to, amend, vary or rescind any notifications, orders, rule or bye-laws so issued."
In Scheduled Caste & Weaker Section Welfare Association (Regd.) & Anr v State Of Karnataka & Ors 1991 (2) SCC 604, the question was whether WP(C) No.4489/1995 Page 27 rescinding a notification which had conferred benefits to a section of citizens was permissible. The Supreme Court held that the power to do so, could be located under Section 21, but it had to be exercised in the like manner and subject to the like sanction and conditions (if any)- as it was exercised when issuing the original order. This aspect was emphasized in Kamla Prasad Khetan v. Union of India (AIR 1957 SC 676), where it was observed that:
"... the power to issue an order under any Central Act includes a power to amend the order; but this power is subject to a very important qualification and the qualification is contained in the words 'exercisable in the like manner and subject to the like sanction and conditions (if any)' ..."
This Court also notices that though the Supreme Court's ruling- in Manohar Lal was in the context of a pari materia statute, the factual backdrop was totally different. One plot was the subject matter of Court litigation between two parties. In spite of a Court injunction, restraining allotment, the State had allotted the plot. The Court noticed that the aggrieved party had contended that the allottee had not fulfilled the requisite formalities in time. On the failure of the Development Authority to give possession, the respondent had filed a writ petition, which had been allowed by the High Court. Reversing the decision, and dismissing the writ petitions, the Supreme Court, after a detailed analysis of its previous decisions, observed as follows:
"no higher authority in the hierarchy or an appellate or revisional authority can exercise the power of the statutory authority nor the superior authority can mortgage its wisdom and direct the statutory authority to act in a particular manner. If the appellate or revisional Authority takes upon itself the task of the statutory authority and passes an order, it remains unenforceable for the reason that it cannot be termed to be an order passed under the Act....
The State Government, being the revisional authority, could not entertain directly the applications by the said applicants, namely, Sh. Ugrasen and WP(C) No.4489/1995 Page 28 Sh. Manohar Lal. The action of the State Government smacks of arbitrariness and is nothing but abuse of power as the State Government deprived GDA to exercise its power under the Act, and deprived the aggrieved party to file appeal against the order of allotment. Thus, orders passed by the State Government stood vitiated. More so, it was a clear cut case of colourable exercise of power."
As is evident, far from holding that the supervisory or revisional power of the State Government carried with it no power to review, the Court held that the power of the authority of the first instance, i.e. the Ghaziabad Development Authority could not have been exercised by the revisional authority, in usurpation of the primary power.
35. In view of the above discussion, this Court holds that the lack of an express mention under the 1957 Act to review or modify a previous order under Section 41 (3) does not bar the Central Government from doing so, if the circumstances so warrant; such an order of review or modification (of the previous order) is amenable to judicial review.
Question No. (c) Whether the land in question allotted to the Society belonged to it or could be dealt with by the DDA, as contended by the latter.
36. In support of the contention that the Society did not own or was not lessee in respect of any land over and above the area of 500 plots demised to it, for the purpose of its members, the DDA had relied upon certain conditions in the Memorandum of Agreement dated 20.08.1975 and certain clauses in the Perpetual Lease Deed executed on 12.05.1978. The relevant part of the agreement (of 1975) is extracted below:
"XXXXXX XXXXXX XXXXXX
NOW THESE PRESENTS WITNESS and it is hereby agreed
between the parties as follows:-
WP(C) No.4489/1995 Page 29
I. The President hereby grants, for a period of three years
commencing from the 20th day of August one thousand nine hundred and seventy (and the time so specified shall be of the essence of the contract) a licence to the Society to enter upon the said land only for the purposes of making surveys and taking measurements and levels for preparing a lay-out plan with the necessary designs and specifications dividing the said land into streets, open spaces, plots, etc., provided however that the area of any residential plot shall not exceed 400 sq. yds. four hundred sq. yds. and, after the sanction of the lay-out plan by the proper municipal or other authority, to enter upon the said land to carry out and complete, and the Society hereby undertakes to carry out and complete, within the said period of three years, to the satisfaction of the Chief Commissioner at its cost and expense, development including metalling of streets, provision of sewers and drains, water and electric mains, amenities and other conveniences in and on the said land, in accordance with the said lay- out plan, and also in and on the land beyond and outside the said land for the proper use and enjoyment of the said land in accordance with the directions of the Chief Commissioner which he may in his absolute discretion issue in this behalf.
XXXXXX XXXXXX XXXXXX VI. The Society shall pay to the President from the 20 th day of August one thousand nine hundred and seventy an yearly licence fee of rupee one per residential plot agreed upon to be leased to the Society. Till the number of such residential plots is determined the Society shall pay in advance a sum of Rs. 500 (Rupees Five Hundred only) per annum towards such licence fee. The necessary adjustment shall be made at the time of the execution of the lease.
XXXXXX XXXXXX XXXXXX"
37. It is submitted, therefore, that right from inception there was clarity about the subject matter of the lease and what was granted to the society, i.e. the entire area of 50 acres for development and the exact dimension or area of the 500 plots it developed pursuant to the license granted through the agreement in that regard. The relevant extract of the Perpetual Lease Deed which the Society entered into with the DDA is as follows:
WP(C) No.4489/1995 Page 30
"XXXXXX XXXXXX XXXXXX
AND WHEREAS the Lessee has developed the said land accordingly and the Chief Commissioner has determined the residential plots to be demised (hereinafter called "the residential plots").
AND WHEREAS the Lessee has applied to the Lessor for the grant of a perpetual lease of the residential plots and the Lessor has on the faith of the statements and the representations made by the Lessee agreed to grant a perpetual lease of the residential plots.
NOW THIS INDENTURE WITNESSETH that, in consideration of the Lessee having developed the said land at its expense and having paid to the Lessor Rs. 1885164.39 (Rupees Eighteen Lakhs Eighty Five Thousand one hundred sixty four and paise 39 only) towards premium before the execution of these presents (the receipt whereof the Lessor hereby acknowledges) and of the rent hereinafter reserved and of the covenants on the part of the Lessee hereinafter contained, the Lessor doth hereby demise upon the Lessee ALL THOSE residential plots containing by admeasurement a total area of 107667.15 sq. yards or thereabouts situate at Pritampura area which residential plots are more particularly described in the schedule hereunder written and with boundaries thereof for greater clearness have been delineated on the lay-out plan annexed to these presents and thereon coloured red XXXXXX XXXXXX XXXXXX"
38. In the decision rendered by the Division Bench of this Court on 28.11.2003 (LPA 375/2003), Panchshila Cooperative House Building Society Ltd. v. Delhi Development Authority and Others an identical question had to be considered. The Society had sought for a direction to enjoin DDA of an office complex within the locality. It was submitted that the land did not belong to the DDA and that the Society had a right over it in view of the terms of the lease deed. The Division Bench upheld the ruling of the learned Single Judge, pertinently observing as follows:
"XXXXXX XXXXXX XXXXXX WP(C) No.4489/1995 Page 31
6. When one scans through the perpetual lease deed matter attains clarity beyond the shadow of any doubt. It is specifically provided in the lease as under:-
''AND WHEREAS the Lessee has developed the said land accordingly and the Chief Commissioner has determined the residential plots to be demise (hereinafter called ''the residential plots'') xxxxx NOW THIS INDENTURE WITNESSETH that, in consideration of the Lease having undertaken to develop the remaining land measuring 218 (Two hundred and eighteen) bighas 15 (fifteen) biswas at its own expense within one year hereof and in consideration of the Lesee having developed at its own expense the said land measuring 224 (Two hundred and twenty-four) bighas 3 (three) biswas and having paid Rs.16,51,444.00 (Rupees sixteen lakhs, fifty one thousand four hundred and forty-four only) as the premium for the said land before the execution of these presents (the receipt whereof the Lessor hereby acknowledges) and of the rent hereinafter reserved and of the covenants on the part of the Lessee ALL THOSE residential plots containing by admeasurement a total area of 1,33,594 (one lakh thirty three thousand five hundred and ninety four) square yards or thereabouts situate at village Sheikh Sarai and Shahpur Jat (Zone F.3) which residential plots are more particularly described in the schedule hereunder written and with boundaries thereof for greater clearance have been delineated on the layout plan annexed to these presents and thereon coloured red and blue.''
7. Thus, after the land was developed as per the layout plan, only the plotted area, i.e. the area developed as residential plots was given to the appellant Society. It is for this reason that area mentioned in the Lease Deed is much less than the area mentioned in the Agreement and further that the area now shown is coloured red and blue. In view of the aforesaid provisions of the Agreement and Lease Deed, the irresistible conclusion which would be drawn is that the land in question which was shown as office complex in the layout plan did not vest in the appellant Society as it was not leased out to the appellant Society. The appellant Society, therefore, would have no right on this part of the land. We, therefore, agree with the finding of the learned Single Judge that it is only residential plots which were WP(C) No.4489/1995 Page 32 leased out to the appellant Society and appellant Society would have no right over the disputed land.
8. Once this finding is arrived at all other contentions of the appellant go into pale of insignificance as the appellant Society had no right over the land. It is not open to the appellant Society to contend that DDA did not have any right over the said land and could not do constructions without permission from MCD........
XXXXXX XXXXXX XXXXXX
39. A similar reasoning was adopted by another Division Bench in Preet Nagar Co-operative House Building Society v. Preet Nagar Residents Welfare Association (supra) as follows:
"XXXXXX XXXXXX XXXXXX ......The Division Bench considered the allotment of land to housing societies, who are asked to develop it in accordance with the lay out plan proposed. The lay out plan contained many common facilities like roads, community centre, local shopping centre etc. The entire land was placed for development as per the lay out plan. Interpreting the various Clauses of the Lease Deed, the Court held that the Society is to accept a lease in respect of the residential plots and further, it would be in the discretion of the President to dispose of the remaining parts of the land in any manner and to whosoever it thinks proper and the Society shall not be entitled to claim refund of any amount or any part thereof towards premium or expended by it on the development of the land. The Court held that after the land was developed as per the lay out plan, the area developed as residential plots, was to be given to the house building society.
8. The ratio decidendii of the above judgment is that while the entire land may be handed over to the House Building Society for development, however, it does not fetter the discretion of the lessor to allot the land earmarked for community services bodies other than the House Building Society.
XXXXXX XXXXXX XXXXXX" WP(C) No.4489/1995 Page 33
40. From the above discussion, it is quite clear that the Society's claim for change of lay-out plan, on its assertion that on application of the MPD-2001 norms, 8.5 acres was "surplus" or "excess" and consequently available to it out of the allotted land is without any legal foundation. The conditions in the agreement of the perpetual lease deed specify that 50 acres handed-over to the Society for development was with the objective of development of 500 residential plots, in respect of which only the society had lease-hold rights. It is not in dispute that the Society entered into individual sub-leases with its 500 members who were allotted those residential plots. As a result, there was no land with the Society which it could lay claim to for purpose of "diversion" from the amenities approved in terms of the then prevailing Master Plan. This Court also notices that some Civil Suits had been filed by the waitlisted members, claiming that the DDA could not allot or permit construction of schools in the two plots. It is not the Society's case that either a similar suit was filed by it or that it opposed the handing-over of the plot to the extent of 3.97 acres to the Govt. of NCT of Delhi. In fact, there are no pleadings on that score, nor is there any additional material nor was the Court shown any additional material. As a result, it is held that in view of the consistent view of two Division Benches of this Court holding that where a larger area of land is given for development to a Society, its entitlement after the development is confined only to the extent of the lease, i.e. the sum total of the area of each residential plot of its members and all other lands continued to vest in the Lessor/DDA. This point is, therefore, held against the petitioners.
(d) Was there non-application of mind in respect of the impugned order dated 7-1-1998.
41. The judicial records in this case contained the relevant correspondence between the DDA and the Central Government as regards the rationale for WP(C) No.4489/1995 Page 34 issuance of the 12-9-1994 directions, and some subsequent letters pointing out as to why these two bodies re-visited the issue. For a better understanding, and greater clarity, the official files of the Ministry of Urban Development, Central Government, were called for, and produced before Court. The relevant discussion pertaining to these file notings are as below.
42. In Note 14/N dated 3.12.93, the Director recommended the Society's application. But the Secretary, in his note (13.12.1993) disagreed, stating:
"Prima facie I don't see much merit in this case. I don't think the provisions of the new Master Plan should be made applicable to the old and closed cases. In this particular case land was allotted to the Society in 1966. This house sites are allotted by the Society to the individual members of the year 1979. The matter rested there till the new Master Plan was published sometime in 91 also. One does not understand how once the Society completed its construction there could be a waiting list after 12 years or so.
2. We must get a clear opinion from the DDA as to whether the provisions of the new Master Plan could be applied to the old and closed cases. Simultaneously, we must also get a categorical answer from the DDA as to what stand they took in the case of five Societies named by the applicant at page 1/c. JS (H) could write a D.O. letter to DDA Chairman asking for a clear cut opinion as to whether they permitted extra land to be used in those five Societies and if so on what price.
3. Even if DDA had permitted use of extra land for residents of those five cases, I don't think we should perpetuate that policy since one wrong does not justify another wrong."
43. The order of Minister, Ms. Sheila Kaul to the above was as follows:
"I had discussed the matter of Kohat Co-operative House Building Society with Secretary. Despite my having given clear instructions in this case, Secretary had asked for certain clarifications from the DDA. These clarifications have not come and a period of three months has expired. It is, therefore, necessary that the file be submitted to me immediately so that I could decide about the implementation of the orders that I have already passed.
WP(C) No.4489/1995 Page 35 I would also like to be informed whether the societies, in which DDA has done conversion, are new or old ones."
44. On 12.4.94, the Minister ordered that her "previous order" of 4.1.94 to grant the Society's request should be implemented. Another detailed note was made by the Secretary giving several reasons why it would be unlawful and improper to grant the society's request. This note (dated 11.7.1994) stated among others that:
"(d) The request of the Society for change of land use from institutional to residential is violative of two important policies relating to land management in Delhi. We have repeatedly cited these policies in various fora, including Parliament, and cannot now ignore them in this case without laying ourselves open to the charge of inconsistency and worse. The first policy goes back to 1972 and provides that no additional land would be given to Cooperative House Building societies for enrolling new members.
This was obviously done to guard against new membership enrollment being done for corrupt reasons. The second policy is not to encourage plotted development so as to ensure economic and efficient use of scarce urban land. These policies are important elements of our urban land management strategy in Delhi and their review would ordinarily require consideration by the Cabinet.
(e) The Society has cited a number of precedents in support of its request. As far as I can see, there is only one confirmed case of additional land having been given. In as far back as 1971, the Iswar Nagar House Building Society was granted 50 bighas 9 biswas. By mistake, this Society developed 2 bighas 6 biswas in excess. After due consideration of the specific circumstances of the case, the lease deed was executed for 52 bighas 15 biswas. This case has no similarity to the case now under consideration and cannot serve as a valid precedence.
(f) The case has been considered twice by Lt.
Governor/Chairman, DDA and rejected. It has also been rejected in clear and unambiguous terms by UDM herself, vide page 7/N. It would be imprudent to disregard or reverse these decisions so soon WP(C) No.4489/1995 Page 36 without any new question of fact or law having emerged. To do so is likely to seriously embarrass Government.
2. From what has been said above, it can be seen that it would be unlawful, against prescribed policies and also public interest, and potentially injurious to the image of government to grant the request of the Society for permission to use the land in question for residential purposes."
45. The Minister overruled the Secretary's recommendations on 11.7.94, saying that:
"1) The issue of the waiting list and its operation is upto the R.C.S. to decide as pointed out by former MOS (UD) in his note of 15.1.1993.
2) It is wrong to imply that by allowing the change of land use Government will be going against the policy of not granting land to Group Housing Societies. No fresh grant of land, beyond the initial 50 acres granted to Kohat, is involved here.
3) The issue as to whether the land is required for a public purpose, is also misplaced. In fulfillment of an assurance to Rajya Sabha Unstarred Question No.3510 dated 20.12.1991, this Ministry has stated that in view of 26 Senior Secondary/Middle Schools around the Kohat H.B.S., there is, in fact, no shortage of schools in this area. Thus, the presumption of the DDA cannot be accepted.
4) The question as to whether the land belongs or does not belong to the Society is also immaterial. Commissioner (Planning), DDA, vide his letter of 28.4.1994, has informed that in Vasant Vihar G.H.S., such conversions were allowed since the land meant for public purposes was surplus to what was required. If that be the case, then:
(i) the viewpoint in para (e) that only in Ishwarnagar GHS has additional land been given, is misleading.
(ii) the same principle as was followed in Vasant Vihar, should be followed in the case of Kohat, irregardless of whether ultimately the common purpose land belonged to DDA or not. My orders are final.
May be implemented immediately.
Sd/
(SHEILA KAUL)
14.7.1994
WP(C) No.4489/1995 Page 37
46. After this the direction of 12-9-1994 was issued, to the DDA, under Section 41 (3). Apparently some members of the Society protested, at the Central Government's direction. A detailed note was submitted to the Minister, by the concerned Desk Officer, in the Ministry, on 26.8.94, stating among others, that:
"5. In this connection, it is submitted that from the report of the Registrar of Cooperative Societies, it is quite clear that all the original members of the Society have already been allotted land in Kohat Enclave and as on date, no eligible member in the Society has been left for allotment of plot. There were allegations of servious nature against the erstwhile Managing Committee who had earlier been writing letters to this Ministry and on the basis of those letters, Ministry have examined the request of the Society for the allotment of additional land to them. That Managing Committee has already been superseded. The Welfare Association of the residents of Kohat Enclave have already lodged their protest for such conversion of land, as discussed above.
There appears to be no need to consider at all any request for conversion of land already allotted for Schools, tot-lots, L- Shopping personnel etc to residential plot. We may however ascertain the views of the residents of the Kohat Enclave, whether they want conversion to residential plots.
Before we write to DDA, we may bring the contents of report submitted by the RCS to the notice of the UDM for her perusal/further orders.
Submitted for consideration please."
47. The Union Minister by her order of 2.9.94 observed that all the concerns expressed in the note were considered and discussed by her and that her previous order to accede to the Society's representation ought to be implemented. The matter continued to engage the attention of the DDA and the Central Government, even after the direction under Section 41 (3) was issued. A WP(C) No.4489/1995 Page 38 letter dated 27.7.1995 was written to the Central Government, by the Chairman, DDA, which is as follows: -
XXX XXX XXX "4. The matter was again examined within the DDA and it was brought out that the facility area provided in the originally approved plan was already short by 3.36 acres and, further, the Society had based its representation on a faulty appreciation of MPD-2001. After a detailed examination of the various types of land available in the Society for disposal, it was being examined to allot land meant for service personnel, whose overall land use is residential, for allotment to the Society for constructing flats. This area accounts for approximately 2% of the total available land. Such a proposal will need approval of the Authority/Govt. and will have its application on other similarly placed Societies. Moreover, this adjustment can only be made after meeting the existing shortfall in the facility area of Kohat Society."
XXX XXX XXX
48. The minister had apparently seen the subsequent file notings; her Private Secretary noted that "Minister has seen this. She expressed surprise that DDA has now pointed out that there is a deficiency of 3.4 acres in the provision of the facilities by the Society even as per the original Master Plan. This point was not raised by the DDA earlier. It was their case that all lands earmarked for services and facilities vested in the DDA and not the Society."
The Minister, therefore, sought clarifications from DDA how it reached its conclusions. Consequently, the letter dated 05.09.1995 from the Central Government sought clarification on the issue of surplus land. In that letter, the Central Government adverted to the DDA's position that there was deficiency of 3.36 acres in the provision of facility by the Society even in the original plan; an aspect which was not pointed-out by the DDA earlier. Therefore, clarification was sought from the DDA about the conclusions arrived at by it.
WP(C) No.4489/1995 Page 39 To this, a reply was given (by DDA) on 19.09.1995, stating that 30% area in the Kohat Cooperative Group Housing Society was reserved for facility in the originally approved lay-out plan. It was stated that even if the MPD-2001 norms were applied, as contended by the Society, there was no question of a surplus area but in fact the earlier approved plan fell short by 3.6 acres.
Soon after receiving the letter of DDA, a file noting was prepared the next day, i.e. 20-9-1995, which reads inter alia, as follows:
"..5. DDA has now intimated that the facility area provided in the approved plan of the society was in accordance with the rules available at the time. It has further been stated that the MPD-2001 stipulates provisions of an average area of 9.55 sq. metres per person for community facilities. It was on the basis of this norm, that it was conveyed that the facility area which was provided in the earlier approved plan falls short by 3.36 acres. The contention of the society that surplus area is available, is based on a mis-reading of the norms of MPD-2001...."
This noting was approved by all officers; the Minster concerned observed, on 29-9-1995 that:
"Prima facie the society has no case to ask for re-classification of the land in question. However, before a final decision is taken to withdraw our earlier directions, it will be better to have information on the following points:
1. Outcome of the writ petition that was filed by some original allottees.
2. Comments of the Society on the observations of DDA about faulty appreciation of MPD-2001.
3. Response of the society about the rejection of their claim of waiting list by the Registrar of Housing Societies.
4. Is there any legal provision to initiate action against non-existing submission of waiting list?"
49. The file reveals that considerable discussion took place after the above opinion of the Minister. The next file noting of the Minister is on 10-4-1996; he expressed grave concern how there was no formal policy within the Government to deal with such requests, and stressed the need for evolving a WP(C) No.4489/1995 Page 40 policy, emphasizing, particularly, that even for a society to request re- classification on the basis of a new norm, it had to show compliance with the pre-existing norms, under which the original plan had been sanctioned.
50. The file notings further reveal that the decision to withdraw the direction was taken sometime, in 1997, and also intimated to this Court in the Union of India's affidavit of 23-4-1997. Later, this Court asked the Central Government to take a final decision, and report the matter. In these circumstances, the show cause notice was issued to the Society -which was being managed by an Administrator, on 14-12-1997, seeking a response about the proposal to withdraw the previous direction (of 12-9-1994). The file noting of the Director (DD) dated 29-12-1997 reveals that no reply had been received on behalf of the society. Apart from noticing the erroneous basis for calculation of excess lands, and recounting the DDA's statement that sufficient land for amenities had not been provided, this noting also indicated that the Registrar of Government of NCT of Delhi had expressed opposition to implementing the directions, on the ground that most of the housing societies had been allotted lands in the 1970s and at that time, the list of members had been "frozen" and that the societies were not supposed to maintain waiting lists. Therefore, allowing them more land by enrolment of new members could lead to favoritism and nepotism within the society. The matter was discussed with the Minister on 7-1-1998; he directed the Secretary Ministry of Urban Development to take steps to withdraw the earlier direction dated 12-9-1994.
51. The previous somewhat lengthy analysis would reveal that considerable discussion took place at almost all levels of the Central Government, right from Desk Officer, to the Secretary about whether to withdraw the direction dated 12-9-1994 or not. The file was considered by the Minister after 12-9-1994, several times. Ultimately, it was felt that it would be unwise not to interfere, and WP(C) No.4489/1995 Page 41 withdraw the directions; therefore, the show cause notice of 14-12-1997 was issued to the Society.
52. The charge of non-application of mind, in this Court's opinion, is devoid of merit and therefore, insubstantial. The reasons cited by the DDA - and accepted by the Central Government, to withdraw its earlier direction - were mainly that the society did not own the land; that superimposition of new Master Plan norms to "release" lands earmarked for amenities for the purpose of residential plots would lead to pressure on amenities (one noting stated as much); absence of any clear cut policy; the fact that according to norms, 3.36 acres land for amenities was deficit, in the Society, are all relevant. In addition, the reservation expressed that in most cases, housing societies which had allotted lands in the 1970s had frozen their list of members, and allowing them to enroll members or permit new members to be allotted new residential plots, developed especially for that purpose by changing the layout plans, would be an unwholesome idea, cannot be brushed aside as irrelevant or not germane to the issue.
53. It is entrenched in our judicial system that judicial review of executive or legislative action is limited to examination whether the impugned decision is tainted, the Court's role is confined to seeing if it is illegal, the result of non- application of mind, irrational (in the sense that no reasonable man would have arrived at such decision) or the result of mala fides. The Court does not adjudicate or weigh the merits of a policy decision, unless the executive decision is one which no reasonable man can subscribe to.
54. Having regard to the above background, this Court finds meritless the Petitioner's contention that the withdrawal of the direction, through the impugned order dated 7-1-1998, is tainted by non-application of mind.
55. The Central Government, in this case, also took care to ensure that the party which at best had an expectation about the layout plan change resulting in WP(C) No.4489/1995 Page 42 some benefit, i.e. the society was afforded an opportunity to present its views; therefore, a show cause notice in that regard was issued on 14-12-1997. No reply was however, forthcoming. It may be noticed at this stage that the society, or the petitioners had no vested or indefeasible right. At best they could be said to have an "expectation" that in the event the directions of the Central Government were affirmed, they could possibly hope that after development of plot, fresh allotments were feasible. In Sethi Auto Service Station v. DDA (2009) 1 SCC 180, the Supreme Court, after considering the previous rulings on the scope of the principle of legitimate expectation, in public law, observed that:
".................. the golden thread running through all these decisions is that a case for applicability of the doctrine of legitimate expectation, now accepted in the subjective sense as part of our legal jurisprudence, arises when an administrative body by reason of a representation or by past practice or conduct aroused an expectation which it would be within its powers to fulfil unless some overriding public interest comes in the way. However, a person who bases his claim on the doctrine of legitimate expectation, in the first instance, has to satisfy that he has relied on the said representation and the denial of that expectation has worked to his detriment. The Court could interfere only if the decision taken by the authority was found to be arbitrary, unreasonable or in gross abuse of power or in violation of principles of natural justice and not taken in public interest. But a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles."
56. The plea of estoppel, similarly, is insubstantial. Estoppel is enforceable only when it does not run into conflict with law, and the person setting it up, proves that the representation by the public authority or agency led him to alter his circumstance irrevocably to his prejudice. No such facts were either pleaded or urged. The approval through the order dated 12-9-1994, did not result in any tangible, let alone substantial steps on the part of the petitioner, or any member of the society which were of an irreversible character. Consequently, the plea of estoppel fails.
WP(C) No.4489/1995 Page 43
57. Apart from the above reasons, which are dispositive of the Petitioners' claims, the Court is of the view that the contention regarding change in norms as the result of a new Master Plan resulting in new rights, and "freeing" lands for development, in terms of such "relaxed" norms, in localities which are developed and existing, is too startling a proposition to be accepted. Such an interpretation would result open spaces and public utility areas - if designedly kept open or yet to be developed, being altered. Planning then would be in a constant state of flux, and every colony- possibly the use of every public amenity area - having to be reviewed to accommodate unceasing demands from societies and developers, a completely undesirable development. It would most probably also change the character of the city, and result in further concretization, posing greater problems for provision of facilities and services like sewage, water supply, electricity, etc.
58. This Court is not unmindful of the fact that the DDA had allotted 7.87 acres of the land in question for development of schools in the locality. A series of legal proceedings, culminating in the present one - has ensured that the land was not entirely handed over; even the interim order made in 2005 in this case, conditionally permits the Government to use only a part of the land - 3.98 acres by putting up "porta cabins" or temporary structures for a school. The Government of NCT had even paid the consideration assessed for the allotment- over ` 23 lakhs, long ago in 1992. Today, some sections of the society who claim to support the petition- and the petitioners have successfully stalled the realization of our most cherished goal - the right to education for well over 16 years, through this petition. In fact, an entire generation of school going children - (if the schools had been constructed and allowed to function, the children born in 1994-1995 would have been graduating from 12th grade by now) in the vicinity have been deprived of this benefit. This is virtually an intolerable, and un-restitutive situation.
WP(C) No.4489/1995 Page 44
59. In view of the above discussion, WP (C) No.4489/1995 has to fail with costs, quantified at ` 1,50,000/- payable by the petitioners in equal proportion (of ` 30,000/- by each Petitioner), within four weeks, to the Govt. Of NCT, which shall ensure that the same is used for infrastructure development of the school it seeks to build. A compliance affidavit shall be filed in the present case within five weeks. List the matter formally for this purpose, before Court, on 14-5-2012. WP (C) 4489/ 1995 is dismissed in the above terms. WP (C) No.10136/2009 is also disposed of, in view of the judgment in WP (C) No.4489/1995. However, parties are left to bear their costs in this petition (W.P.(C) No.10136/2009).
S. RAVINDRA BHAT
(JUDGE)
April 13, 2012 S.P. GARG
(JUDGE)
WP(C) No.4489/1995 Page 45