Full Judgment Text
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P. (C) 1246/2010 & CM No. 2622/2010
Reserved on: March 9, 2011
Decision on: March 25, 2011
DELHI STATE BHARAT SCOUTS AND GUIDES ..... Petitioner
Through: Mr. R. K. Saini, Advocate.
versus
LAND & DEVELOPMENT OFFICE
AND ORS. ..... Respondents
Through: Mr. Amarjit Singh Chandhiok, ASG
with Mr. Jatan Singh, CGSC,
Mr. Ritesh Kumar and Mr. Ashish Kumar
Srivastava, Advocates for R-1/L&DO.
Mr. Jayant Tripathi, Advocate for ASI.
CORAM: JUSTICE S. MURALIDHAR
1. Whether Reporters of local papers may be
allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in Digest? Yes
JUDGMENT
25.03.2011
1. The Petitioner, Delhi State Bharat Scouts and Guides, a Society
registered under the Societies Registration Act, 1860 and affiliated to the
Bharat Scouts and Guides, challenges the action of the Respondent Land
and Development Office („L&DO‟) in the Ministry of Urban Development
W.P. (C) No. 1246/2010 Page 1 of 26
(„MoUD‟), Union of India in cancelling the lease in its favour in respect of
land measuring 9.86 acres at Nizamuddin East (hereafter „the premises in
question‟), ordering re-entry therein and thereafter re-allotting the
premises in question to the Archaeological Survey of India („ASI‟),
Respondent No. 3 herein.
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2. The Petitioner states that on 26 November 1941, the Governor General
of India in Council allotted the premises in question to the Petitioner and
executed a perpetual lease deed. The lease deed described the land
admeasuring 9.86 acres as being situated to the north of Humayun‟s Tomb.
Clause 2 (7) mandated that the lessee will not without the consent of the
lessor “carry on or permit to be carried on any trade or business
whatsoever or use the same or permit the same to be used for any purpose
other than that of a camping ground or do or suffer to be done therein any
act or thing whatsoever which in the opinion of the Chief Commissioner of
Delhi may be an annoyance or disturbance to the Governor General in
Council or his tenants in the New Capital of Delhi.” Clause 2(5), inter alia,
mandated that within a year of the allotment, the Petitioner would erect on
the land a camp with a chowkidar‟s hut and a storeroom for camp
equipment with all necessary sewers drains and other appurtenances in
accordance with plans prepared and submitted in consultation with the
Archaeological Department and the consulting Architect to the
W.P. (C) No. 1246/2010 Page 2 of 26
Government of India and approved in writing by the Chief Commissioner,
Delhi. This Clause further mandated that the lessee would not, without
previous consent in writing of the Chief Commissioner of Delhi or duly
authorized officer, “erect or suffer to be erected on any part of the said
demised premises any building other than and except the chowkidar‟s hut
and a storeroom hereby covenanted to be erected.” Clause 2(8) of the
lease deed acknowledged that on the leased land there were certain
monuments which were protected monuments within the meaning of the
Ancient Monuments Preservation Act, 1904. Clause 3 gave the power to
the Chief Commissioner of Delhi in the event of any breach by the lessee
to enter the premises and to remove or demolish any alterations in or
additions to the building erected on the premises. Clause 5 mandated that
no forfeiture or any re-entry shall be affected without the permission of the
Chief Commissioner of Delhi and such re-entry will not be ordered “until
the lessor has served on the lessee a notice in writing.” Under Clause 5(b)
if the breach was capable of remedy and upon serving a notice, the lessee
was able to remove the breach, the Chief Commissioner in his discretion
would withdraw such forfeiture on such terms and conditions as thought
proper. Under Clause 6, if the demised premises or any part thereof was
required for a public purpose, it will be lawful for the lessor to re-enter the
premises and determine the compensation in lieu of concession in respect
of premium and ground rent to be paid to the lessee.
W.P. (C) No. 1246/2010 Page 3 of 26
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3. On 2 November 1964, a supplementary perpetual lease was executed
and registered whereby the Petitioner agreed to surrender a piece of land
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measuring 0.93 acre by 30 April 1963 for the construction of an approach
road to the second Yamuna Bridge. In lieu thereof two pieces of land
measuring 1.319 acres and 1.907 acres were leased to the Petitioner. The
Petitioner states that till 1989 it used the demised premises for organizing
camps, training and other activities for youth and children. In 1989, to
commemorate the birth centenary of Pandit Jawahar Lal Nehru, a cultural
programme, „Bhartiyam‟, was organized by the Government of India on
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14 November 1989. It is stated that around 6000 children participated in
the event for which the Sports Authority of India („SAI‟), erected certain
“modules” on the camping grounds for accommodating the participants of
the cultural programme. On conclusion of the Bhartiyam event, the SAI by
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a letter dated 29 November 1989 handed over to the Petitioner the
complete charge of the modules and allied infrastructure erected for the
event.
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4. The premises in question were inspected on 4 June 2001 by the L&DO
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and by a letter dated 18 June 2001 the L&DO notified the Petitioner of
certain breaches on account of misuse and unauthorized constructions.
The three instances cited were that the area was being misused for a „park
land club‟, a swimming pool and that the Petitioner was selling water at
W.P. (C) No. 1246/2010 Page 4 of 26
the rate of Rs.120/- per tank at about 15 water tanks daily. Apart from
this, 27 unauthorized constructions were listed. The Petitioner was asked
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to remedy the breaches within 30 days. In reply the Petitioner on 2 July
2001 informed the L&DO that the swimming pool was constructed by the
New Delhi Municipal Council („NDMC‟) out of funds provided by the
Lieutenant Governor of Delhi (Chief Commissioner). The modules had
been erected by the SAI for the Bhartiyam event. The Petitioner pointed
out that “the Government of India being the lessor and Government of
India having spent the amount of construction and the Government of
India being the builder the Petitioner had not raised any unauthorized
construction”. The allegation that the Petitioner had sold the water tanks at
the rate of Rs.120/- per tank was denied. The Petitioner informed the
L&DO that if the Ministry of Youth Affairs and Sports („MYAS‟) required
the swimming pool to be destroyed, the Petitioner would request them to
do so since the Petitioner had no authority to destroy government property.
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5. On 27 December 2001, the Petitioner addressed another letter to the
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L&DO furnishing a cloth mounted plan as required by a letter dated 12
November 2001. It was again reiterated that the modules, toilet blocks and
bathrooms were constructed by the MYAS under the supervision of a high
power committee constituted by the Prime Minister at the time of
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Bhartiyam in 1989. A similar letter was written on 6 February 2004 to the
W.P. (C) No. 1246/2010 Page 5 of 26
Minister MoUD requesting him to intervene in the matter and issue
appropriate orders for settling the issues.
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6. By a letter dated 8 November 2005, the L&DO informed the Petitioner
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that the premises in question had been inspected on 26 November 2005
and the following misuses were noted:
“i) 16 modules m/a 16 x 27‟-0” x 27‟-0” + 11664 sq.
ft. are being misused for Madhubala Institute.
ii) The unauthorized (U/A) construction reported vide
Item No. XVIII below known as Bajpai Hall m/a
998.43 sq. ft. is being used as Madhubala Institute.”
7. The notice also listed out 18 instances of unauthorized constructions.
The Petitioner was asked to remove the breaches within 30 days.
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8. In reply the Petitioner on 1 December 2005 informed the L&DO that
the unauthorized constructions were in fact erected by the Government of
India. It was then stated as under:
“Due to lack of funds, Delhi State Bharat Scouts &
Guides could not undertake regular repairs &
maintenance of the modules & other facilities. So the
conditions of the facilities started deteriorating.
Ultimately, Government of India, Ministry of H.R.D.
came to our help & they managed to give some
W.P. (C) No. 1246/2010 Page 6 of 26
modules to INTACH. In lieu of sharing these
modules for a specified period they agreed to
undertake repairs & maintenance of the modules &
other facilities.
When INTACH had their own building, they vacated
the modules. Then we again faced the same problem
of repair & maintenance of modules & other
facilities. Then we had to share those very modules
with Madhubala Institute affiliated to Guru Gobind
Singh University for a specified limited period with
the condition that they will repair & maintain the
modules & other facilities. If the Department feels
that this sharing is not in order & the line set by
Ministry of H.R.D., Government of India was not
proper, then we ask the Institute to vacate the
premises from the next session ensuing from June,
2006.”
9. It was further clarified that certain other unauthorized constructions
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referred to in that notice dated 8 November 2005 would be dismantled
soon but that certain other structures had been erected to provide
residential accommodation to the chowkidar, plumber, electrician and
sweeper whose services were required round the clock.
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10. By a letter dated 27 March 2006, the L&DO informed the Petitioner
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that its reply dated 1 December 2005 was not found satisfactory and that
W.P. (C) No. 1246/2010 Page 7 of 26
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the breaches pointed in the notice dated 8 November 2005 were in
violation of the lease deed. The Petitioner was given another opportunity
of removing the breaches within 30 days failing which the premises would
be re-entered in accordance with Clause 3 of the lease deed.
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11. The Petitioner then sent a legal notice dated 22 April 2006 stating
that the L&DO in consultation with the Prime Minister‟s office should
constitute a consortium of various Ministries concerning the structures
erected at the time of Bhartiyam and “decide the fate of the structures
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forever and absolutely”. This was followed by another letter dated 7
September 2006 sent by the Petitioner in response to the letter of the
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L&DO dated 5 September 2006 asking the L&DO to withdraw the order
of re-entry. In the said letter, a mention was made of the fact that there
was a Public Interest Litigation („PIL‟) pending in the Delhi High Court.
Further, in Suit No. 311 of 2004, the High Court had directed that the
status quo be maintained in relation to the premises in question. In the
meanwhile, the Monitoring Committee („MC‟) appointed by the Supreme
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Court sealed the camping ground of the Petitioner. By a letter dated 2
April 2007 addressed to the MCD, the Petitioner explained that structures
in the form of 153 modules had been erected by the Government of India
in the premises in question to accommodate the participants of the
Bhartiyam event in 1989. The Petitioner admitted that the accommodation
W.P. (C) No. 1246/2010 Page 8 of 26
had been shared with INTACH and an MoU had been entered into for that
purpose in 1982. This was since the Petitioner did not have funds to
maintain the facilities. INTACH vacated the premises in 1999. The
Petitioner admitted that it allowed the Madhubala Institute („MBICEM‟) to
share some accommodation on the condition that they would provide
support in the maintenance of modules and other facilities on the same
lines as decided in the case of INTACH by the Government of India. The
Petitioner claimed that some sharing of space is permissible in terms of
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L&DO circular dated 10 December 1999 but that the issue pertaining to
the sharing was still pending with the L&DO. The Petitioner assured the
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MCD that it would get the premises vacated from MBICEM by 30 June
2007. The Petitioner also enclosed an affidavit undertaking that it would
stop forthwith the alleged misuse and that it would not deviate from the
terms and conditions stipulated by the MC. The Petitioner prayed that the
premises be de-sealed.
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12. On 21 May 2007, the L&DO wrote to the Petitioner as under:
“Sir,
I am directed to refer to your letter No. D.S.
B.S.G./2006/09 dated 7.9.06 on the captioned subject
and to say that you are requested to remove the
breaches within 15 days of receipt of this letter or
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latest by 4 June 2007 and intimate this office so that
W.P. (C) No. 1246/2010 Page 9 of 26
further action could be taken in the matter.”
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13. On 28 May 2007, the Petitioner again assured the L&DO that the
breaches would be removed within two days but that this could only be
done after the de-sealing of the premises. The Petitioner reiterated this
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request by a separate letter dated 28 May 2007 addressed to the MCD. It
again reiterated that “the shifting of MBICEM, removal of Tents and
Furniture and compliance of orders of Land and Development Office is
only possible if the Camping Ground is de-sealed at the earliest”.
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14. A request for de-sealing was again made by the Petitioner on 22 June
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2007. Two reminders dated 29 June 2007 and 1 August 2007 were sent
to the MoUD requesting for de-sealing of the premises. The Petitioner
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wrote to the MC on 23 July 2008 and to the L&DO on 12 August 2008.
15. The Petitioner had also filed an application in Writ Petition (Civil) No.
20229-20232 of 2005 in this Court for vacation of the sealing order of the
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MC of the Supreme Court. The said application was dismissed on 27
November 2008 on the submission made by the L&DO that the property
had been re-entered and that the Petitioner‟s rights as lessee stood
forfeited. This Court observed that it was open to the Petitioner as well as
the L&DO to approach the MC for appropriate directions. Thereafter the
W.P. (C) No. 1246/2010 Page 10 of 26
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Petitioner made a detailed representation on 31 December 2008 to the
MC. The Petitioner states that it thereafter learnt that the premises in
question were allotted to the ASI, Respondent No. 3. The MC de-sealed
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the premises on 15 February 2010. However, upon de-sealing the
premises in question were handed over to the ASI. Hence this petition.
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16. On 26 February 2010, a statement was made before this Court by
counsel for the Petitioner that after the premises were de-sealed by the MC
“the Petitioner resumed possession of the premises and has been running
its office.” It was stated that the ASI was seeking to demolish the
structures in the premises without prior notice. In those circumstances, this
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Court on 26 February 2010 passed a status quo order.
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17. At a subsequent hearing on 16 April 2010, this Court clarified that the
status quo order passed by this Court would not prevent the ASI from
carrying out any maintenance work in the two monuments and the
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surrounding area. At the hearing on 13 May 2010, the Respondents
disputed that the Petitioner had resumed possession after the de-sealing of
the premises. They produced a copy of the memo drawn up at the time of
de-sealing which showed that in the presence of the officials of the
Petitioner the possession of the premises was handed over to the ASI. With
the counsel for the Petitioner contesting the position, this Court appointed
W.P. (C) No. 1246/2010 Page 11 of 26
a Court Commissioner to visit the premises and inform the Court “if after
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the de-sealing of the premises on 15 February 2010 there was any activity
undertaken by the Petitioner for running its office in the premises.”
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Pursuant to the above order dated 13 May 2010, the Court Commissioner
visited the premises and filed a detailed report along with photographs and
a video CD. The Court Commissioner concluded that there was no activity
being undertaken in the premises since a long time.
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18. On 31 August 2010, the following order was passed by this Court:
“1. Mr. Saini‟s arguments have been heard in part.
He submitted that the structures which have been
labeled by the L&DO as „unauthorised‟ have been
put up, way back in 1989, by the Government of
India for the Bhartiyam festival and that the
Petitioner could not have unilaterally removed such
structures. Without prejudice to the contentions of
the Petitioner, he submits that the Petitioner is not
opposed to the structures being removed. Further, he
states that the Petitioner will not be opposed to
giving up such of the area which is required for
preservation of the two monuments located within
the property in question.
2. The Court would like the L&DO to consider
without prejudice to its rights and contentions in the
matter, whether in the facts and circumstances of the
W.P. (C) No. 1246/2010 Page 12 of 26
case and in view of the statement made today on
behalf of the Petitioner, any alternative space can be
allotted to the Petitioner.
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3. List on 21 September 2010.”
19. However, the counsel for the L&DO informed the Court at the hearing
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on 2 December 2010 that it was not possible to allot any alternative space
to the Petitioner.
20. Mr. R. K. Saini, learned counsel appearing for the Petitioner submitted
that the L&DO has not followed the due process of law in evicting the
Petitioner unceremoniously from the premises in question. The Petitioner
had been complying with the lease conditions and operating the camp in
terms of the lease deed for over six decades. It is submitted that at the time
the premises were sealed, it was the Petitioner who was in possession
thereof. Once the premises were de-sealed, the possession of the premises
had necessarily to be handed back to the Petitioner.
21. It is submitted by Mr. Saini that under the terms of the lease deed the
giving of a prior notice about breaches was not an empty formality. It is
pointed out that in the instant case no cogent reason was given by the
L&DO for rejecting the detailed representations given by the Petitioner.
Even as per the terms of the lease, if the breaches were remediable, and in
W.P. (C) No. 1246/2010 Page 13 of 26
this case according to Petitioner they were, the L&DO ought not to have
taken the extreme step of straightway evicting the Petitioner which had
been occupying the premises as a lessee for over 60 years.
22. As regards the sub-letting of the premises to MBICEM, Mr. Saini
submitted that the said breaches had admittedly ceased with the premises
being sealed by the MC. He further pointed out that the transfer of the
premises to the ASI even before formally evicting the Petitioner showed
that this move was pre-meditated and was entirely without the authority of
law. He submitted that the plea of unauthorised construction was untenable
as it had been undertaken by the Government of India itself. He submitted
that without prior permission of the Government of India it would not have
been possible for the Petitioner to remove the said structures. Mr. Saini
placed reliance on the decisions in Bishan Das v. State of Punjab AIR
1961 SC 1570 , Express Newspapers Pvt. Ltd. v. Union of India (1986) 1
SCC 133 and State of U.P. v. Maharaja Dharmander Prasad Singh AIR
1989 SC 997.
23. Mr. A.S. Chandhiok, learned Additional Solicitor General („ASG‟)
appearing for the Union of India submitted that the notices to the Petitioner
for breach of the terms of the lease deed after repeated inspections on
W.P. (C) No. 1246/2010 Page 14 of 26
different dates were essentially on two grounds. One was for misuse on
account of sub-letting of the premises to MBICEM and second, for the
unauthorised structures. He pointed out that in the replies submitted by the
Petitioner there was no categorical denial of the factum of sub-letting.
Further, there was no indication that the misuse would be stopped. He
submitted that in fact till the sealing of the premises on the order of the
MC of the Supreme Court, MBICEM continued to occupy a portion of the
premises. It was in this context that the Respondents passed the order of
re-entry.
24. Mr. Chandhiok submitted that when the premises were de-sealed by
the Supreme Court MC, it was in the presence of the representatives of the
Petitioner. He produced a note signed by the representatives of the ASI,
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the L&DO and the Petitioner dated 15 February 2010 under which the
premises were handed over to the ASI. He pointed out that there was no
protest by the Petitioner at that stage. The Petitioner voluntarily gave up
possession of the premises. Therefore it was not open to the Petitioner to
contend that it had been forcibly evicted and that possession should be
restored to it. The learned ASG pointed out that with the re-entry order
having been passed and for valid reasons as explained hereinbefore, there
was no question of the Petitioner being put back in possession of the
premises.
W.P. (C) No. 1246/2010 Page 15 of 26
25. Mr. Chandhiok pointed out that the prayer in this writ petition was as
regards the land to the extent of 9.86 acres, whereas by way of the
supplementary lease deed the total extent of land leased to the Petitioner
was 12.56 acres. Mr. Saini submitted that this was only a technical plea
and should not come in the way of the Petitioner‟s prayer for substantive
justice.
26. The first issue to be considered is whether the Respondent L&DO has
complied with the principles of natural justice in passing the impugned
order of re-entry. Although there were breaches notified by the L&DO
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after an inspection on 10 January 1974, it appears that no action was
taken by the L&DO thereafter. What is relevant for the purposes of the
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present case is the inspection that took place on 4 June 2001 leading to
the notification of the breaches by the L&DO to the Petitioner by a letter
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dated 18 June 2001. At this stage, misuse noticed was for use of the area
for „park land club‟, for a swimming pool and the allegation that the
Petitioner was selling water @ Rs. 120/- per tank. The notice also listed
the alleged unauthorised constructions.
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27. In response to the reply of the Petitioner dated 2 July 2001, the
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L&DO by its letter dated 12 November 2001 asked the Petitioner to
submit the sanctioned building plan duly cloth mounted in order to verify
W.P. (C) No. 1246/2010 Page 16 of 26
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the construction. The Petitioner‟s reply dated 27 December 2001 pointed
out that the unauthorised structures were constructed by the Government
of India at the time of Bhartiyam in the year 1989. The swimming pool and
the open air stadium were constructed by the NDMC and Delhi
Administration respectively. The sanctioned plan was not available with
the Petitioner. The above explanation appears to have been accepted by the
L&DO and, therefore, no further action was taken thereafter. Further since
no formal order was communicated, the Petitioner wrote to the MoUD on
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6 February 2004 seeking settlement of the issues. There was no reply to
this letter.
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28. The subsequent issuance of notice dated 8 November 2005 for
breaches was consequent upon an inspection undertaken of the premises in
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question by the L&DO on 26 October 2005. From the counter affidavit, it
appears that prior to this some time in February 2003, the Ministry of
Tourism and Culture, Government of India as well as the Director General
of the ASI had informed the L&DO that the land surrounding the protected
monuments, i.e. Bada Batashewala and Chota Batashewalal, which was
leased out to the Petitioner was being used for commercial purposes in
violation of the lease conditions. The ASI had drawn up a plan for
development of the entire land surrounding Humayun‟s Tomb. The ASI
proposed that lease of the Petitioner be cancelled and the land be
W.P. (C) No. 1246/2010 Page 17 of 26
transferred to the ASI for care and maintenance and for development as a
world heritage site in an integrated and aesthetic manner. The ASI
requested the MoUD for transfer of the land measuring 9.86 acres to them
in accordance with the provisions of the Ancient Monuments and
Archaeological Sites and Remains Act, 1958 („AMASR Act‟). Further, by
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virtue of two notifications, dated 16 June 1992 and 4 July 1992, no
construction activities could be carried out within the prohibited area of
100 metres radius surrounding the Humayun‟s Tomb and no construction
within the regulated area, i.e., within a radius of 300 metres surrounding
Humayun‟s Tomb could be undertaken without prior permission of the
ASI.
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29. When the inspection was undertaken on 26 October 2005 the
breaches noticed were that 16 modules in the premises were being used by
the MBICEM. Further, the Bajpai Hall admeasuring 998.46 sq. m., which
was itself an unauthorised construction, was also being used by the
MBICEM. The other breaches related to other unauthorised constructions.
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30. The reply dated 1 December 2005 of the Petitioner to the said notice,
admitted that the Petitioner had allowed the MBICEM to use the premises
in question. There was a clear admission that this was done without prior
W.P. (C) No. 1246/2010 Page 18 of 26
permission of the lessor. The reply also did not give any assurance of
stoppage of the said misuse. The reply was in fact equivocal inasmuch as it
was stated that “if the Department feels that this sharing is not in order &
the line set by Ministry of H.R.D., Government of India was not proper,
then we can ask the Institute to vacate the premises from the next session
ensuing from June, 2006.”
31. It is not surprising, therefore, that the L&DO did not find the above
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reply to be satisfactory and required the Petitioner by the notice dated 27
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March 2006 to remove the breaches. Further, the reply dated 22 April
2006 by the Advocate for the Petitioner made no reference whatsoever to
the misuse of the premises by sub-letting it to the MBICEM. The breaches
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remained unremedied. Consequently, the re-entry order was passed on 25
May 2006.
32. Given the above exchange of correspondence where there were
sufficient notices issued to the Petitioner for removal of the breaches and it
failed to do so, no fault can be found with the order of re-entry with effect
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from 25 May 2006. It cannot be said that in arriving at the said decision
the L&DO acted in violation of any of provisions of the lease deed much
less in violation of the principles of natural justice.
W.P. (C) No. 1246/2010 Page 19 of 26
33. It appears that some of the employees of the Petitioner had filed Suit
No. 311 of 2004 in which a status quo order had been passed. On that
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ground the Petitioner on 7 September 2006 wrote to the L&DO
requesting it to “withdraw the order of re-entry and issue terms for
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withdrawal of re-entry order.” From the letter dated 7 September 2006, it
is plain that by this time the Petitioner was aware of the order of re-entry.
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The letter dated 7 September 2006 in fact refers to the L&DO‟s letter
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dated 5 September 2006. The second aspect is that this letter dated 7
September 2006 of the Petitioner also makes no reference to the misuse on
account of the MBICEM occupying the structures. The third aspect is that
despite the re-entry order the Petitioner at that stage did not chose to
challenge the order. This position obviously continued till the sealing of
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the premises by the Supreme Court‟s MC on 29 March 2007.
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34. Interestingly, the affidavit dated 2 April 2007 furnished by the
Petitioner to the MCD assures that “the alleged misuse of the above
mentioned premises will be stopped forthwith and no further extension
will be sought on any ground whatsoever nor will deviate from the terms
and conditions agreed before the monitoring committee.” The affidavit
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was furnished along with a letter of the same date, i.e. 2 April 2007,
addressed to the MCD in which the Petitioner stated: “we will get the
premises vacated from MBICEM by 30.06.07.” It is perhaps in light of the
W.P. (C) No. 1246/2010 Page 20 of 26
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above undertaking that on 21 May 2007, the L&DO again requested the
Petitioner to remove the breaches within 15 days. This led to the Petitioner
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writing on 28 May 2007 that it would remove the breaches within 15 days
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of the de-sealing of the premises. It is only by the letter dated 28 May
2007 that the Petitioner informed the MCD as under:
“As per instructions from Hon‟ble Monitoring Committee
MBICEM applied and submitted affidavit to your good office
for de-sealing the premises and also agreed to vacate the
Camping Ground within the specific period.
The Portion being used by MBICEM was de-sealed with the
condition that they will have to vacate the premises before
30.06.07. The institute is ready to shift to the new premises
but furniture and other equipment cannot be shifted because
the main gate of the Camping Ground is closed and sealed.
Copy of the letter of MBICEM is attached.”
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35. On 22 June 2007, the Petitioner wrote to the L&DO stating as under:
“…..MBICEM has vacated the 90% of the premises occupied
by them. The Bajpai Memorial Hall is completely vacated and
removed the equipment and material.
The Almeria‟s and big size furniture is yet to be removed as
the main gate of the camping ground is locked & sealed.
The MBICEM vide their letter no. MB/17-27/2006-07 dated
19.6.2007 requested the Hon‟ble Monitoring Committee to
W.P. (C) No. 1246/2010 Page 21 of 26
De-Seal the main gate for two days so that they can remove
the Almeria‟s & big furniture etc. lying there.”
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36. This was followed by another letter dated 29 June 2007 from the
Petitioner to the L&DO stating that MBICEM has completely vacated the
premises including the Bajpai Memorial Hall. There were repeated letters
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written by the Petitioner thereafter on 1 August 2007, 23 July 2008 and
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12 August 2008 to the L&DO and to the MC requesting for withdrawal of
the re-entry order and for de-sealing of the premises in question.
37. While it is true that the L&DO did not reply to the above letters, its
stand was made clear in proceedings in this Court in Writ Petition (Civil)
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No. 20229 of 2005 on 27 November 2008. While rejecting an application
being CM No. 13650 of 2008 filed by the Petitioner for de-sealing of the
premises, this Court passed the following order:
“27.11.2008
CM No. 13650 OF 2008
At this stage we are not inclined to pass any order on
this application. It appears that the property was sealed under
the orders of the Supreme Court Monitoring Committee
(SCMC) and an application has been moved by the ex-lessee
for vacating that order. The stand of the land and development
officer (Land DO) is however that as the property has been re-
entered and it no longer stands in the name of the ex-lessee,
W.P. (C) No. 1246/2010 Page 22 of 26
all rights of lessee stand forfeited, the ex-lessee is not
entitled/authorised to request for de-sealing of the premises. It
is open for the ex-lessee as well as the land DO to approach
the SCMC for appropriate directions. It is made clear that we
have not expressed any opinion on the merits of the case.
The application is rejected.”
38. Learned ASG has rightly pointed out that whatever may have been the
doubts earlier, the above order made it clear that the L&DO was not
willing to recall the re-entry order and that the property in question no
longer stood in the name of the Petitioner.
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39. The action of the L&DO in allotting the premises to the ASI on 30
November 2009 has to be seen in the above light. The Petitioner clearly
did not seek any legal remedy as regards the re-entry order prior to that
st
date. It made representations to the MC of the Supreme Court on 31
December 2008 requesting for de-sealing.
40. The relevant notings on the file leading to the de-sealing of the
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premises have been placed on record. The first is a noting of 3 July 2007
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of the office of the MC about a letter dated 19 June 2007 received from
the L&DO requesting the MC not to de-seal the premises on the request of
the Petitioner as the premises did not stand in the name of the Petitioner
W.P. (C) No. 1246/2010 Page 23 of 26
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any longer. The other is a noting of 12 February 2010 of the MC that the
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L&DO had forwarded a letter dated 10 February 2010 to the MC
requesting it to de-seal the premises north of Humayun‟s Tomb measuring
12.156 acres “for transferring the same to ASI.” The MC approved the de-
sealing of the premises “except the temporary structure in which Aap Ka
Tent House articles are lying.” The noting further is to the effect that “the
Bharat Scouts and Guides have agreed to remove their articles etc. within
two days of de-sealing (Member M/C spoke to Mr. R.S. Saini, Hon‟ble
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State Secretary of Bharat Scouts and Guides on 10 February 2010 over
telephone).” The MC further noticed that “L&DO will ensure the recovery
of misuse charges from Bharat Scouts and Guides. The premises be de-
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sealed on 12 February 2010 when ASI and L&DO officers are present.”
41. It appears, therefore, that it was with the full knowledge of the
Petitioner that de-sealing of the premises took place in the presence of the
Petitioner. Further, the Petitioner appears to have consented to the de-
sealing of the above premises in the aforementioned manner. The
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subsequent noting of 15 February 2010 when the de-sealing actually took
place also shows that it took place in the presence of the Petitioner.
42. The above developments have also to be seen in light of the
explanation given by the L&DO in its counter affidavit of the need to
W.P. (C) No. 1246/2010 Page 24 of 26
preserve the entire area surrounding the Humayun‟s Tomb free from
encroachment and misuse. Viewed in that light, it is not possible to
conclude that the action of the L&DO was arbitrary or unreasonable.
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43. The handing over of the premises to the ASI on 11 November 2009
was after the re-entry order had been passed in the circumstances
explained hereinbefore. In view of sealing of the premises by the MC
under the authorisation of the Supreme Court, it is not possible to hold that
the L&DO forcibly evicted the Petitioner. With the Petitioner having been
in possession in the above circumstances, and with the re-entry order not
having been set aside prior to the de-sealing, the handing over of the
premises after de-sealing to the ASI, in the presence of the Petitioner,
without any protest from the Petitioner, cannot be said to be illegal. There
was no obligation on the L&DO to put the Petitioner back in possession
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when the MC de-sealed the premises on 15 February 2010.
44. The fact remains that till sealing of the premises by the MC, the
breaches had not been removed. The misuse by the MBICEM was perhaps
stopped while the premises were sealed. But this was at a time when the
re-entry order had already been passed.
W.P. (C) No. 1246/2010 Page 25 of 26
45. For the aforementioned reasons, this Court does not find any merit in
this writ petition and it is dismissed as such, with no order as to costs.
S. MURALIDHAR, J
MARCH 25, 2011
ha/ak
W.P. (C) No. 1246/2010 Page 26 of 26