Full Judgment Text
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CASE NO.:
Appeal (civil) 4908 of 2002
PETITIONER:
M/s. D.L.F. Qutab Enclave Complex Educational Charitable Trust
RESPONDENT:
Vs.
State of Haryana and Ors.
DATE OF JUDGMENT: 17/02/2003
BENCH:
S.B. Sinha & AR. Lakshmanan.
JUDGMENT:
J U D G M E N T
WITH
CIVIL APPEALS NOS. 4909, 4910 AND 4911 OF 2002
S.B. SINHA, J:
Interpretation of Section 3(3)(a)(iv) of the Haryana Development and
Regulation of Urban Areas Act, 1975 (hereinafter called and referred to for
the sake of brevity as ’the said Act’) falls for consideration in these appeals
which arise out of a judgment and order of the Punjab and Haryana High
Court dated 7.3.2001 passed in C.W.P. No.7245 of 1997 filed by the
appellant of Civil Appeal No. 4908 of 2002.
M/s. DLF Universal Ltd. (DLF) is a public limited company
registered and incorporated under the Indian Companies Act. It purchased
free-hold lands at Gurgaon in the State of Haryana for setting up a colony
known as DLF Qutab Enclave Complex. It applied for and was granted
licence in terms of the provisions of the said Act.
M/s. DLF Universal Limited and other group of companies created
DLF Qutab Enclave Complex Educational Charitable Trust (Trust) wherefor
85 sites were earmarked for constructions of schools/ community buildings
in the complexes. The said sites vested in the Trust by reason of a deed. The
Trust entered into agreements of lease with Gunjan Nikunj Educational
Institute (P) Ltd., Mr. A.H. Handa, New Ekta Educational Society, Satish
Mohindra and Sukhjeet Kaur Mann (hereinafter referred to as ’fourth
parties’).
Three of the lessees from the Trust, namely, New Ekta Educational
Society, Satish Mohindra and Sukhjeet Kaur Mann applied for approval and
were granted building plans by the 2nd respondent herein.
On or about 9.2.1994 the 2nd Respondent issued a letter to the DLF
directing it to ensure that no other fourth party right is created on community
site, in respect whereof third party interest was created prior to 7.8.1991.
The said cut off date was fixed purported to be on the basis of the resolution
taken in a meeting held under the Chairmanship of the then Chief Minister
of the State of Haryana wherein a resolution was adopted to the effect that
no further third party right could be created. The State of Haryana by a
letter dated 25.10.1994 issued instructions as regards transferring
community sites to third and fourth parties and raising constructions
thereupon which are broadly classified into three heads:
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I. Where community sites are still in the ownership of the colonizers
II. Sites where colonizers have created third party rights before
7.8.1991
III. Cases where the licensee has created fourth party right on
community sites.
The said instructions were followed by another addenda in terms of a
letter dated 13.2.1996 stating that the time schedule of three years for
construction on community buildings would also apply to all sites where
third and fourth party rights have been created before 7.8.1991 and in
respect thereof, the remaining conditions of letter dated 25.10.1994 shall be
applicable. The legality or validity of the directions contained in the said
two letters dated 25.10.94 and 13.2.96 were the subject matter of the writ
petition filed by the Trust in Punjab and Haryana High Court marked as
Civil Writ Petition No. 7245 of 1997.
It appears that a proposal was mooted in the said proceeding as to
whether the dispute between the parties could be amicably resolved and
pursuant thereto or in furtherance thereof by an order dated 21.9.2001 the
Trust was given an opportunity by the High Court to obtain and file
affidavits of the parties in whose favour licences had been granted for
construction and running of the schools.
Allegedly, the respondents No. 1 and 2 pursuant to the observations
made by the High Court held meetings with all concerned an d found the
said proposal to be acceptable.
Thereafter affidavits were filed by the concerned fourth parties stating
that they would abide by the conditions of the licence issued in favour of
DLF as also the rules and regulations and instructions issued by the First and
Second Respondents. In the said affidavits it was further affirmed that
schools would be built within the time specified by the Respondents.
The High Court by an order dated 13.12.2000 recorded that the
parties had nearly reached a consensus and draft agreement was directed to
be put up for its consideration.
However, the learned Advocate General for the State of Haryana on or
about 16.2.2001 appeared and stated before the High Court that it was not
possible for the State to accept the said proposal and requested that the Writ
Petition be decided on merits.
The Writ Petition by reason of the impugned judgment was dismissed
holding:
(i) The petitioner is a duplicate of the licensee. It has been created to
fiddle with figures. A consuming avarice and not charity is the
cause for its creation.
(ii) The Act and the Rules do not permit the licensee to transfer sites
without the permission of the competent authority. The action of
the respondents in refusing to recognize the transfers cannot be
said to be illegal.
(iii) The impugned circulars are not arbitrary, illegal or unfair. These
do not impinge upon the protection of Article 14 of the
Constitution.
(iv) The failure of the Authority to act or the mere silence of the State
cannot be a ground for the court to put its seal of approval on deeds
which do not have the sanction of the Statute and the Rules.
Mr. Harish Salve, the learned senior counsel appearing on behalf of
appellant in Civil Appeal No. 4909 of 2002 would submit that the said Act,
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the Rules framed thereunder or the conditions of licence do not provide for
imposition of any embargo on transfer of the lands, in question, to third
parties by DLF and as such the impugned judgment is not sustainable. The
learned counsel would contend that by reason of the said Act only grant of
licence as regards regulation of user of land is contemplated and the
restrictions imposed thereunder must be held to be operative qua the terms
and conditions of licence and not qua the owners of the properties. Mr.
Salve would urge that so long the user of the land conforms to the provisions
of the Act, Rules or the terms and conditions of the licence, no restriction on
exercise the right of the owner to transfer the land can be imposed having
regard to absence of a statutory provision in relation thereto. He would
argue that the question as to whether the Trust was an entity independent of
DLF is wholly irrelevant or not inasmuch as even assuming that it is so,
having regard to the terms and conditions of licence as the third parties and
the fourth parties are claiming interest through the owner, they would also be
bound thereby. In that view of the matter and particularly having regard to
the fact that the fourth parties by way of affidavits had undertaken to abide
by the terms and conditions of the licence granted pursuant to or in
furtherance of the said Act and the Rules framed thereunder, the purport and
object for which Town Planning Act has been enacted would not be violated.
It was argued that conversely if it be held that the DLF was entitled to
transfer those lands to the third parties, the profits accrued by reason of the
transactions of the Charitable Trust lose relevance for a decision upon the
validity of the refusal of the Government to sanction the building plans. The
learned counsel would submit that having regard to the expression
’development works’ meaning ’internal and external development works’,
used in the statute, no fetter on transfer of lands can be inferred, as long as
lands reserved for construction of schools, hospitals, community centers etc.
are used for the said purpose. By reason of the provision contained in
Section 3(3) of the Act, it was submitted, the licensee was merely obligated
to construct or get constructed schools, hospitals, community centers etc.
and thus, in terms thereof no prohibition has been imposed as regard transfer
thereof to an institution or an individual so as enable them to undertake
construction of schools, hospitals and community centers at their own cost.
Drawing our attention to the instructions dated 9.2.1994 issued by the
Director, Town & Country Planning impugned in the writ petition, the
learned counsel would submit that the same merely shows that an executive
decision in relation thereto was taken which was not backed by any statute
or statutory rule and as such the same should have been declared ultra vires
by the High Court.
Mr. M.L. Verma, the learned counsel appearing on behalf of the
appellant in Civil Appeal No. 4908 submitted that in the facts and
circumstances of this case the High Court should not have made adverse
comments as regard the functioning of the Trust.
The learned counsel appearing on behalf of the appellants in Civil
Appeal No. 4910 and 4911 would inter alia submit that keeping in view the
fact that the Trust issued advertisements which were published in various
newspapers in the year 1991 declaring availability of educational sites in the
colony in question, it cannot be said, that the respondents No. 1 and 2 were
not in the know thereof. It was submitted that the appellants upon due
enquiry satisfied themselves about the title of the DLF whereafter only they
purchased the lands in question bona fide and for valuable considerations
within the knowledge of the State of Haryana and as at no point of time the
State of Haryana objected thereto, the purported impugned directions issued
in the year 1994 and 1996 could not have given retrospective effect and
retrospective operation with effect from 7.8.1991.
Mr. Mahendra Anand, the learned counsel appearing on behalf of the
Respondent Nos. 1 and 2 would, on the other hand, submit that although
there does not exist any express bar on transfer of lands by the owners
thereof by creating third party or fourth party interest, the same must be
inferred having regard to the scheme of the said Act. The learned counsel
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would contend such a scheme would appear not only from the interpretation
clauses of the Act but also from Section 7 thereof as also the rules framed
thereunder and the licences granted pursuant thereto or in furtherance
thereof. According to the learned counsel having regard to the scheme of
the act, the Court should apply the rule of purposive construction so as to
hold that the licensee itself was bound to construct schools, hospitals,
community centres etc. at its own cost. It was submitted that if the State can
take over the lands without payment of any compensation, it must
necessarily be held that it has also the concomitant right to keep control
thereover which would include imposing restriction on transfer of the said
land. The owner of the land by necessary implication, the learned counsel
would urge, was not entitled to exercise any right over the property and its
right to use the same was restricted to get constructions raised through a
third party wherefor also it has itself to incur costs. Mr. Anand would
contend that the extent of regulation can further be judged by the fact that a
colonizer is not entitled to enter into a profitable venture, the reasonable
profit being restricted to 15% by the Legislature and thus in the event the
owner could create third party and fourth party interests, the same would
defeat the very purpose and object of town planning.
The said Act was enacted to regulate the use of land in order to
prevent ill plant and haphazard urbanization in or around towns in the State
of Haryana. It came into force with effect from 16th November, 1971 except
Section 10 thereof which came into force on 30th January, 1975 when the
State Act received the assent of the Governor of State of Haryana.
’Colony’ has been defined in Section 2(c) of the said Act in the
following terms:
"colony" means an area of land divided or
proposed to be divided into plots or flats for
residential, commercial or industrial purposes
subject to certain restrictions specified therein."
Colonizer has been defined in Section 2(d) thereof which reads thus:
"(d) "colonizer" means an individual, company
or association or body of individuals, whether
incorporated or not, owning or acquiring or
agreeing to own or acquire, whether by purchase
or otherwise land for converting it into a colony
and to whom a licence has been granted under this
Act;"
"Development Works" in terms of Section 2(e) would mean internal
and external development works.
"External Development works" and "internal development works"
have been defined in Section 2(g) and 2(i) of the Act as under:
"(g) "external development works" include
sewerage, drains, roads and electrical works which
may have to be executed in the periphery of, or
outside, a colony for the joint benefit of two or
more colonies;
(i) "internal development works" means â\200\223
(i) metalling of roads and paving of
footpaths;
(ii) turfing and plantation with trees as
open spaces;
(iii) street lighting;
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(iv) adequate and wholesome water
supply;
(v) sewers and drains both for storm and
sullage water and necessary provision
for their treatment and disposal; and
(vi) any other work that the Director may
think necessary in the interest of
proper development of a colony;
Interpretation clauses except Section 2(g) having regard to user of
expression "means" can neither be construed liberally nor can be held to be
exhaustive ones.
It is not in dispute that DLF is a colonizer. It is further not in dispute
that licences had been granted to it for the construction of a colony. It also
stands admitted that schools, hospitals, community centers and other
community buildings were required to be constructed in the colony in terms
of the licences granted under the Act.
Section 3 of the said Act provides for application for licence and grant
thereof. Sub-section (2) of Section 3 clearly states that the Director before
granting the licence may enquire into the title of the land as also capacity of
the colonizer to develop a colony.
Such enquiry is also required to be made having regard to the plan
regarding development works to be executed in a colony and in conformity
with the development schemes of the colonies of the neighbouring areas.
In terms of sub-section (3) of Section 3 of the said Act, the Director
upon arriving at a satisfaction as regard the requirements specified in Clause
(a) to (f) would grant licence subject to the licensee’s furnishing a bank
guarantee and giving an undertaking as specified in clause (a) thereof.
The relevant provision of Section 3(3) of the said Act reads thus:
"(3) After the enquiry under sub-section (2), the
Director, by an order in writing, shall â\200\223
(a) grant a licence in the prescribed form, after
the applicant has furnished to the Director a bank
guarantee equal to twenty-five per cent of the
estimated cost of development works as certified
by the Director and has undertaken - -
(i) â\200¦..
(ii) â\200¦..
(iii) the responsibility for the maintenance and
upkeep of all roads, open spaces, public park
and public health services for a period of
five years from the date of issue of the
completion certificate unless earlier relieved
of this responsibility and thereupon to
transfer all such roads, open spaces, public
parks and public health services free of cost
to the Government or the local authority, as
the case may be;
(iv) to construct at his own cost, or get
constructed by any other institution or
individual at its cost, schools, hospitals,
community centers and other community
buildings on the land; set apart for this
purpose, or to transfer to the Government at
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any time, if so desired by Government, free
of cost the land set apart for schools,
hospitals, community centers and
community buildings, in which case the
Government shall be at liberty to transfer
such land to any person or institution as it
may deem fit.
Section 7 prohibits advertisement and transfer of plots and reads as
under:
"7. Prohibition to advertise and transfer plots. â\200\223
Save as prescribed in Section 9, no person shall â\200\223
(i) without obtaining a licence under Section 3
transfer or agree to transfer in any manner
plots in colony or make an advertisement or
receive any amount in respect thereof;
(ii) erect or re-erect any building in any colony
in respect of which a licence under Section 3
has not been granted;
(iii) erect or re-erect any building other than for
purpose of agriculture on the land sub-
divided for agriculture as defined in clause
(aa) of section 2 of this Act."
The State of Haryana in exercise of its power under Section 24 of the
said Act made the Haryana Development and Regulation of Urban Areas
Rules, 1976 (hereinafter referred to as ’the Rules’). Rule 10 provides that
the applicant for grant of a licence would be required to fulfil certain
conditions laid down therefor. Rule 11 specifies the conditions required to
be fulfilled by the applicant. Sub-rule (e) of Rule 11 is identically worded
with Section 3(3)(a)(iv) of the Act.
Licence to a colonizer is granted in form LC-IV. Condition No. (b) of
the licence again is in identical terms with Section 3(3)(a)(iv) of the said
Act.
Although the object of the said Act is laudable but does it mean that
with a view to achieve the same the regulatory provisions contained therein
should be construed as a total prohibition on transfer of land not only in
relation to those which are required for development works but also to
schools, hospitals, community centers and other community buildings, is the
core question involved in these appeals.
Construction of schools, hospitals and community centres and other
community buildings do not come within the purview of the term
’development works’. They come within the purview of the term
"Amenities". Only in relation to the development works the colonizer is
bound to pay the development charges, carry out and complete development
works. He has also the responsibility to maintain the same for a period of
five years from the date of issue of the completion certification whereafter,
the same is required to be handed over to the Government or the local
authority as the case may be, free of cost.
At the outset, we may notice that the cost of development works
indisputably is to be raised from the plot holders, but as construction of
schools, hospitals, community centres and other community buildings do not
come within the purview of the term ’development works’, the costs therefor
are not to be borne by them.
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The expression "Development Work" as noticed hereinbefore is not
synonymous with "Amenity". The expression "Amenity" has been used
only in proviso appended to Clause (v) of Section 3(3)(a) and Rule 2(b) of
the Rules. Rules are subservient to the Act, although they may be read con-
jointly with the Act, if any necessity arises therefor. Even Rule 5 specifies
the obligation of the colonizer as regard providing for the development
works. The expression "amenity" as defined in Rule 2(b) of the Rules is
wider than "development works". No principle of construction of statute
suggests that a wider expression used in the rule may be read in the Statute
employing narrower expression. Even in the rule the said expressions have
been used for different purposes. The licence, also does not postulate that all
amenities must be provided by the colonizer at its own expense. If the terms
’Development Works’ and ’Amenity’ are treated as carrying the same
meaning, the plot holders may be held to be bound to meet the costs for
construction of schools, hospitals, community centres etc. The cost of
construction in terms of the said provisions thereof is to be borne by DLF or
its nominees.
Right of transfer of land is indisputably incidental to the right of
ownership. Such a right can be curtailed or taken away only by reason of a
statute. An embargo upon the owner of the land to transfer the same in the
opinion of this Court should not be readily inferred. Section 3(3)(a)(iv) of
the Act does not expressly impose any restriction. The same is merely a part
of an undertaking. Assuming that a prohibition to transfer the land can be
read therein by necessary implication, it is interesting to note that the
consequence of violation of such undertaking has not been specified. In
other words, if a transfer is made in violation of the undertaking, the statute
does not provide that the same would be illegal or the transferee would not
derive any title by reason thereof.
The right of a transferee, however, would be subject to the building
laws or regulatory statute relating to user of the property. In terms of the
said Act, in the event the Government, takes over the plots it would be at
liberty to transfer such land to any person or institution including a local
authority as it may deem fit. Purpose of such a clause, therefore, is to ensure
that schools, hospitals, community centres and other community buildings
are established at the places reserved therefor in the sanction plan but there
does not exist any embargo as regards the person or persons who would run
and manage the same.
A regulatory act must be construed having regard to the purpose it
seeks to achieve. State as a statutory authority cannot ask for something
which is not contemplated under the Act. A statute relating to regulation of
user of land must not be construed to be a limitation prohibiting transfer of
land which does not affect its user.
The plan provides that schools, hospitals etc. would be located at
particular sites. When that purpose is satisfied, the Court in the name of
interpretation would not make a further attempt to find out who did so.
It is not in dispute that respondent Nos. 1 and 2 have sought to impose
such a ban specifically by reason of the impugned circulars issued in the
years 1994 and 1996, which in unmistakable terms go to show that even
according to them such a bar did not exist prior thereto. It is accepted that
even the concerned respondents had recognised at least three transfers. If
transfer of the sites reserved for construction of school was prohibited under
the statute, it is axiomatic that in absence of any provision contained therein,
the respondent could not exercise any power of regularizing such
transaction. A transfer prohibited by a statute would be illegal and not
irregular. Once it is held that such transfer would only be ’irregular’ which
can be cured, it would necessarily mean that there was no absolute statutory
bar in relation thereto. The building plans which were submitted on various
days in 1992 and onwards had been accepted and sanctioned. If it be held
that such transfers by the DLF Qutab were illegal, there was no occasion for
the respondents No. 1 and 2 herein to pass the building plans keeping in
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view of the fact that transferee thereof did not acquire any title whatsoever.
Such a right of transfer to third parties to raise construction having been
accepted by the respondents No. 1 and 2 prior to 1994, it does not now lie in
their mouth to contend that there existed a statutory bar. The primal
question is as to whether by reason of an executive fiat, a right to transfer
one’s own property could be curtailed? The answer to the said question
must be rendered in the negative.
Expropriatory statute, as is well known, must be strictly construed.
In terms of Section 3 of the Act, a colonizer has to construct schools,
hospitals, community centres and community buildings at its own cost or to
get the same constructed by any other institution at its cost and for the said
purpose lands have to be set apart. However, in the event the same is not
done within a reasonable time, the State would be at liberty to take over the
lands and fulfil the said objects as specified in the sanctioned plan. The
power of the Government to take over the lands must be held to be restricted
and would be applicable only in a case where community services had not
been developed. In other words, where the community services had not
been developed the question of acquisition thereof by the Government
would arise and not in any other situation.
The High Court in our opinion, committed a manifest error in holding
that despite the fact that the statute uses two different expressions as regards
cost to be incurred for construction of schools, hospitals and community
centres etc. the effect thereof would be the same. In case of licensee the
words used are ’at his own cost’ whereas in respect of the others, the words
used are ’at its cost’. When different terminologies are used by the
legislature it must be presumed that the same had been done consciously
with a view to convey different meanings. Had the intention of the
legislature been, as has been held by the High Court, that the cost for such a
construction has to be borne by the licensee irrespective of the fact as to
whether it undertakes such constructions itself or get them constructed by its
contractors, there was absolutely no reason as to why clearer terms could not
be used by the legislature. The words ’at his own cost’ refer to the licensee,
whereas in the case of his nominee being either an institution or a person, as
the case may be, the words ’at its cost’ have been used. The expression "at
his own cost" and "at its cost" must be held to have separate and distinct
meaning. They are not meant to aim at the same person.
The words ’institution’ or ’person’ evidently do not refer to a building
contractor as understood in ordinary parlance. It must be held to carry
different meanings. Indisputably, any person can get constructions made on
his own land either under his own supervision or through a contractor. For
the purpose of raising constructions through a contractor, permission of the
statutory authorities is not necessary. In that view of the matter, clearly the
legislature did not contemplate that the words ’any other institution or
individual’ refer only to a building contractor for the purpose of construction
of the buildings alone and for no other purpose.
It may be that the agreement is between DLF and the respondent No.
2 but the same would not mean that the transferees from the DLF would not
be bound by the terms and conditions of the licence as the statutory
obligations of the licensee would percolate down to its transferees as they
would be claiming interest under the licensee. In terms of the provisions of
the said Act, Rules and the condition of licence, the Director Town and
Country Planning as also the State of Haryana would be entitled to exercise
control in terms of the statutory provisions over the subsequent transferees.
Creation of third party or fourth party interest, it is axiomatic, would not by
itself take away the right of control of the State and other regulatory
measures which can be taken under the statute.
In other words, the liability of the colonizer in the matter of
construction of schools, hospitals etc. would continue in the event, he or his
transferees fail to comply the conditions of licence and he would be
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subjected to the consequences laid down therefor in Section 10 of the said
Act.
The Government in other words would continue to regulate the user
for which the site had been earmarked and upon failure of the licensee or his
transferees to comply with such statutory obligation, the Government would
be entitled to take over such land.
The question may be considered from another angle. A statutory
obligation had been placed upon the colonizer. The right of colonizer to
transfer the land would be subject to such obligation inasmuch as it cannot
transfer a right higher than it has. The right to transfer the land shall carry
with it the obligation of the owner thereof to use the land in a particular
manner as laid down in the statute as also the terms of the licence. It is also
pertinent to note that a draft rule was published on 13th December, 1991 in
terms whereof a condition was imposed in condition (e) in the licence
granted in form LC-IV to the following effect:
"No third party rights will be created without
obtaining the prior permission of the Director"
The said Amendment itself goes to show that the legislature sought to
remedy a mischief which was existing prior thereto. Such a step on the part
of the State of Haryana is also a pointer to the fact that even according to it,
prior permission therefor was not required.
Basic Rule of interpretation of Statute is that the Court shall not go
beyond the statute unless it is absolutely necessary so to do. Rule of
’purposive constructions’ would be resorted to only when the statute to
observe or when read literally it leads to manifest injustice or absurdity.
It may be true that 55% of the acquired lands were plottable but as to
whether D.L.F. has recouped its investments by transferring the plottable
land to the plot holders is a question which, in our opinion, is irrelevant for
the purpose of construction of statute. The High Court, in our opinion,
therefor, adopted a wrong approach.
It is also incorrect to contend that that sub clauses (iii) and (iv) of
Section 3(3)(a) of the Act stand on a different footing. A bare perusal of the
said provision would clearly show they are not. In terms of clause (iii), a
colonizer is responsible to maintain and upkeep of all roads, open spaces,
public parks and public health services for a period of five years from the
date of issue of the completion certificate whereas in terms of clause (iv), a
colonizer undertakes to construct schools, hospitals, community centers and
other community buildings or get the same constructed by any other
institution or individual. Sub-clauses (iii) and (iv) of Clause (a) of sub-
section (3) of Section 3 of the said Act, thus, aim at different purposes.
We do not also agree with the submission of Mr. Anand to the effect
that as regards development of community sites, the State acts as a parens
patriae. The State Act have been enacted for regulation of user of land so
that the development of a town may not haphazard. It seeks to achieve the
purposes mentioned in the preamble and no other.
In these cases, we are not concerned with the question as to whether
the provisions of the Transfer of Property Act are applicable in the State of
Haryana or not. Ownership of land jurisprudentially involves a bundle of
rights. One of such rights is the right to transfer. Such a right, being
incidental to the right of ownership; having regard to Article 300A of the
Constitution of India, cannot be taken away save by authority of law.
We may now consider the decisions whereupon Mr. Anand placed
strong reliance.
In Charan Lal Sahu Vs. Union of India [(1990) 1 SCC 613] this Court
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was considering the provision of Bhopal Gas Leak Disaster (Processing of
Claims) Act, 1985. The question which arose for consideration therein was
as to whether the State has the requisite jurisdiction and power as a ’parent’
to fight litigation for the victims so as to uphold their fundamental rights. A
question as to whether the State Act is ultra vires the Constitution also arose
for consideration. The Court with a view to uphold the constitutionality of
the Act held that the Scheme of the Act suggests an obligation on the part of
the State. The court, in the fact situation obtaining therein, took recourse to
the principles of liberal interpretation holding:
"â\200¦.The freedom to search for ’the spirit of the Act’
or the quantity of the mischief at which it is aimed
(both synonymous for the intention of the
Parliament) opens up the possibility of liberal
interpretation "that delicate and important branch
of judicial power, the concession of which is
dangerous, the denial ruinous". Given this freedom
it is a rare opportunity though never to be misused
and challenge for the judges to adopt and give
meaning to the Act, articulate and inarticulate, and
thus translate the intention of the Parliament and
fulfil the object of the Act. After all, the Act was
passed to give relief to the victims who, it was
thought, were unable to establish their own rights
and fight for themselves. It is common knowledge
that the victims were poor and impoverished. How
could they survive the long ordeal of litigation and
ultimate execution of the decree or the orders
unless provisions be made for their sustenance and
maintenance, especially when they have been
deprived of the right to fight for these claims
themselves? We, therefore, read the Act
accordingly."
The said decision, therefore, was rendered in a completely different
fact situation and is not applicable to the fact of the present case.
In Shamarao V. Parulekar Vs. The District Magistrate, Thana,
Bombay and two others [(1952) 3 SCR 683] this Court was considering the
provisions of Preventive Detention Act. In that case the Court took recourse
to literal meaning. It was held that the Court should not interpret an act in
such manner which would defeat the provisions thereof whose meaning is
quite plain.
No exception to the said ratio can be taken.
In The State of Punjab Vs. Ajaib Singh and Another [(1953) 4 SCR
254] this Court was considering the constitutional validity of the provisions
of Abducted Persons (Recovery and Restoration) Act in terms whereof
police officers were entitled to take abducted person to the custody of the
officer in charge of the camp. The construction of the terms ’arrest and
detention’ came up for consideration and in that situation it was held:
"Sri Dadachanji contends that such consideration
should not weigh with the court in construing the
Constitution. We are in agreement with learned
counsel to this extent only that if the language of
the article is plain and unambiguous and admits of
only one meaning then the duty of the court is to
adopt that meaning irrespective of the
inconvenience that such a construction may
produce. If, however, two constructions are
possible, then the court must adopt that which will
ensure smooth and harmonious working of the
Constitution and eschew the other which will lead
to absurdity or give rise to practical inconvenience
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or make well established provisions of existing law
nugatory."
In Tirath Singh Vs. Bachittar Singh and Others [(1955) 2 SCR 457] an
election dispute was the subject matter of the lis. The question which arose
for consideration therein was as to whether the principles of natural justice
had to be read in the proviso appended in the Section 99(1)(a) of the Act.
Repelling such contention it was held:
"But it is a rule of interpretation well-established
that, "Where the language of a statute, in its
ordinary meaning and grammatical construction,
leads to a manifest contradiction of the apparent
purpose of the enactment, or to some
inconvenience or absurdity, hardship or injustice,
presumably not intended, a construction may be
put upon it which modifies the meaning of the
words, and even the structure of the sentence".
(Maxwell’s Interpretation of Statutes, 10th Edition,
page 229). Reading the proviso along with clause
(b) thereto, and construing it in its setting in the
section, we are of opinion that notwithstanding the
wideness of the language used, the proviso
contemplates notice only to persons who are not
parties to the petition."
In Canara Bank vs. Nuclear Power Corporation of India Ltd. & Others
[(1995) Supp. 3 SCC 81], the question which fell for consideration of this
Court was as to whether the Company Law Board performs judicial
functions that are ordinarily performed by courts under Section 9-A of the
Act and in that context it was held to be a court. The said decision cannot
be held to have any application in the instant case.
The said decisions having been rendered on the fact of the matters
involved therein and cannot be held to have any application whatsoever in
the instant case.
The question which now arises for consideration is as to whether
clause (t) of the licence agreement can be read as a restriction of the right to
transfer the community sites. Clause (t) of the licence agreement reads as
under:
(a) That the owner shall drive maximum net
profit @ 15% of the total cost of development of a
colony after making provisions of statutory taxes.
In case the net profit exceeds the 15% after
completion of the project period, surplus amount
shall either be deposited within two months in the
State Government Treasury by the owner or he
shall spend this money on further amenities/
facilities in his colony for the benefit of the
residents therein."
The cap on profit, in our opinion, is irrelevant for the purpose of
construction as regards the right of colonizer to transfer the land. Clause (t)
of the Licence, in other words, cannot be construed to put in an implied
limitation of the owner of the land to transfer its land. It is for the State of
Haryana to invoke the said clause if and when any occasion arises therefor.
Furthermore, having regard to the fact that the DLF had made its
intention to transfer the lands known through advertisements in the widely
circulated newspapers; offerees must be held to have exercised their ’due
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diligence’ at the time of acquisition of interest in the plots and in that view
of the matter such interest cannot be put in jeopardy unless it is found out
without any difficulty whatsoever that the colonizer had no right to transfer
the said land and the effect of such transfer would lead to illegality. The
fourth parties are bona fide transferees for value and thus their right of
claiming interest cannot be jeopardized by reason of executive instructions
or otherwise particularly in absence of any pleadings by the respondents No.
1 and 2 to the effect that fraud has been practised by the colonizer or the
parties colluded with one another to achieve an illegal purpose.
For the reasons aforementioned the impugned judgment cannot be
sustained which is set aside accordingly.
Before parting, however, we may observe that in the event, it is found
that the colonizer or the transferees had failed to discharge their obligations
in terms of the said Act, Rules and conditions of licence, it would be open to
the prescribed authorities to take such action against them as is permissible
in law.
For the foregoing reasons, the appeals are allowed but in the fact and
circumstances of the case, there shall be no order as to costs.