WP (C) 10765 of 2009 Page 1 of 41 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P(C) No.10765/2009 % Date of Decision: 13.11.2009 Shanti Sports Club …. Petitioner Through Mr.P.N.Lekhi, Sr.Advocate with Mr.Yashraj Singh Deora, Advocate. Versus UOI and Ors …. Respondents Through Mr.Ajay Verma, Advocate for the DDA/respondent no.3. Mr. Yatinder Shaudhary Advocate for respondent no.1. Mr. Shoaib Haider Advocate for Mr.N.Waziri, Standing counsel for the respondent no.2 CORAM: HON’BLE MR. JUSTICE ANIL KUMAR 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 the Digest? YES ANIL KUMAR, J. (Oral) * 1. The petitioners seek a direction to the respondents to act in accordance with the policy dated 1st May, 2008 and a Writ of Certiorari seeking quashing of letter No.F.3(75) 2008/MP/J-12/458 dated 21st August, 2009. WP (C) 10765 of 2009 Page 2 of 41 2. The grievance of the petitioners in the present writ petition is that pursuant to notification dated 1st May, 2008 inviting application from bonafide institutions for regularization, an application dated 19th June, 2008 was filed by the petitioner. Along with the application the petitioners are alleged to have submitted copies of the land ownership documents with a site plan of the area; plan and details of existing built up area; site plan; registration certificate of the society; registration documents of the society; set of building plans for record of the local body. The petitioners in their applications had allegedly disclosed that the proposed complex is one of the best and most well built having an infrastructure matching international standards. It was also asserted that the petitioners complied with all the terms and conditions for regularization as the land does not form part of the notified Ridge/Regional Park/Developed Park/River Bed/Gram Sabha or public land, lands affected by Heritage Zone and/or land required for master plan roads or other essential public facilities. Regarding the extent of buildable area it was contended that it is limited to the extent of MPD- 2021 norms and the petitioner shall be willing to pay all charges leviable such as external development charges etc and the petitioner shall make arrangement for provisions of the public/municipal services. 3. The Petitioners had applied for withdrawal of their land from acquisition which was purchased after the notifications were issued WP (C) 10765 of 2009 Page 3 of 41 under Section 4 & 6 of Land Acquisition Act and on which the construction was done without seeking any sanction or permission of any type, rather sanction and permission had not even been applied. The appeal of the petitioners for release of the land from the acquisition was pending in the Supreme Court being Civil Appeal Nos.8500- 8501/2001. The application of the petitioners was not decided. The petitioners had filed an application in respect of regularization according to the notification dated 1st May, 2008 which was disposed of by order dated 14th July, 2009 allowing the petitioners to withdraw the application with liberty to avail such remedies as could be available under law. Thereafter petitioners filed the present petition on 4th August, 2009 praying inter-alia for a direction to the respondents to act in accordance with its policy dated 1st May, 2008 and to decide the application of the petitioners for regularization. 4. The application of the petitioners dated 19th June, 2008 was dismissed by the respondent No.3 and the decision was communicated to the petitioner by letter dated 21st August, 2009. The respondent No.3 while dismissing the application held that the petitioners did not fulfil the criterion laid down in public notice dated 1st May, 2008 and the proposed road of 60 meters is an important link between the existing Nelson Mandela road and the existing M.G road in Zone J which will pass through the Shanti Sports Club and it will connect the proposed WP (C) 10765 of 2009 Page 4 of 41 commonwealth games facilities at Vasant Kunj and the proposed 239 acres of CPWD complex at Ghitorni Village for Judicial Commission/Govt. Housing etc. and the change of land use for 239 acres of CPWD land at Ghitorni village has already been notified by the Government of India on 14th July, 2009. It was also held that the petitioners are not covered under the Act and the categories mentioned in the advertisement. 5. After rejection of the application of the petitioners for regularization in accordance with policy dated 1st May, 2008, the Civil Appeals seeking de-notification of the lands of the petitioners was also dismissed by the Supreme Court by order dated 25th August, 2009. While dismissing the appeals, the counsel for the petitioners sought time to vacate the land. The Supreme Court, therefore, granted three months time to the petitioners to hand over possession of the land. Time was granted subject to condition that within two weeks from 26th August,, 2009 an affidavit of an authorized persons would be filed on behalf of petitioners undertaking that the possession of the lands will be handed over to respondent No.3 by 30th November, 2009 and during this period no encumbrances whatsoever will be created by the petitioners or their agents and that no compensation will be claimed for the construction already made. The Supreme Court had also allowed WP (C) 10765 of 2009 Page 5 of 41 respondents to take the possession with the police help in case of undertaking being not filed by the petitioners. 6. The petitioners have contended that they have given undertaking to the Supreme Court to vacate their lands by 30th November, 2009. The petitioners after giving undertaking to vacate the lands, filed the applications in the present writ petition seeking amendment on account of order dated 21st August, 2009 passed by respondent No.3 rejecting the application of the petitioners for regularization and for impleadment of Shanti (India) Pvt Ltd/petitioner no.2 which was allowed. 7. The contention of the petitioners is that rejection of the land from the acquisition notification was within the knowledge of the respondent yet the name of the petitioners' sports club was included in the list prepared by the respondent pursuant to notification dated 1st May, 2008. If the lands were not to be released from acquisition then why the respondents had entertained the application and not only entertained the application, included the name in the list of institutions which had to be regularized. According to the petitioners the public notice given by the respondents has given a fresh cause of action as the draft zonal plan also included the name of the petitioners sports club at serial No.12. WP (C) 10765 of 2009 Page 6 of 41 8. Relying on Master Plan 2021 it is contended that sports activities are an important part of the physical and social development as the sports activities have a significant effect on the community because of which the standards have been laid under Clause 13.3.1 in Table 13.7 of the Master Plan. The petitioner's sports club is stated to have three hectares of land for various activities whereas DDA's club has only one acre. According to the petitioners, the name of the petitioners sports club was included in the list for regularization for this reason, as the sports facilities available with the petitioners are more than the district sports centers, however, less than divisional sports centers as contemplated in the Master Plan. The petitioners asserted that their sports club falls in the cultural activities under Table 13.23 of the Master Plan. Their sports club has a membership of almost 720 active members and 196 honorary members and the petitioners' club provides services to all senior citizens free of charge and they also provide free coaching to under privileged children as well as children who represent at the state as well as international level tournaments. In these circumstances the petitioner had filed the writ petition on 4th August, 2009 and thereafter the representation of the petitioners to the DDA has been dismissed on 21st August, 2009 WP (C) 10765 of 2009 Page 7 of 41 9. According to the petitioners the link road, arterial roads in the zonal plan are the zonal plan roads and such roads cannot be construed as the road contemplated in the Master Plan and, therefore, the rejection of their representation without considering the pleas and contentions, is in denial of the principles of natural justice and the impugned order suffers from non application of mind. In the circumstances it is contended that the petitioners club is a bonafide occupier and their application should have been accepted especially as the petitioners had also agreed to give up the land for the construction of road. 10. The learned counsel for the petitioners has contended very vociferously that inclusion of the name of the petitioners has given legitimate expectation to them, as even DDA accepted petitioners' institution to be a bonafide institution in its order dated 21st August, 2009. According to the petitioners their land cannot be termed as public land since the possession of the land has not been taken. The learned counsel for the petitioners relied on (1993) 3 SCC 499, Union of India Vs Hindustan Development Corporation; (1993) 1 SCC 71, Food Corporation of India Vs Kamdhenu Cattle Feed; (1992) Supp 2 SCC 351, State of H.P Vs Kailash Chand Mahajan; (1994) 5 SCC 509, Madras City Wine Merchants' Association vs State of T.N; (1995) 2 SCC 326, U.P Awas Evam Vikas Parishad vs Gyan Devi; (2006) 8 SCC 38, WP (C) 10765 of 2009 Page 8 of 41 Ram Pravesh Singh and ors. Vs State of Bihar & ors.1; (2008) 10 SCC 1, Official Liquidator vs Dayanand and AIR 1953 SC 215, Ram Prasad Narayan Sahi vs State of Bihar to canvass that the petitioners can invoke the doctrine of Legitimate expectation in the facts and circumstances for regularization of their sports club. 11. The learned counsel for the petitioners has also relied on (2006) 3 SCC 434, Bombay Dyeing and Manufacturing Company Ltd v. Bombay Environmental Action Group and Ors; (2003) 3 SCC 186, Cellular Operators Association of India v. Union of India and (2009) 5 SCC 313, Bank of India v. K.Mohandas to contend as to how a judgment/order should be read and considered. The learned counsel for the petitioners Mr.Lekhi has contended that a judgment as defined in Section 2(9) of the Code of Civil Procedure means the statement given by the Judge of the grounds for a decree or order. According to him what a judgment should contain is indicated in Order 20 Rule 4(2) which says that a judgment „shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision‟. It should be a self-contained document from which it should appear as to what were the facts of the case and what was the controversy which was tried to be settled by the court and in what manner. The process of reasoning by which the court came to the ultimate conclusion and decreed the suit should be reflected clearly in the judgment. WP (C) 10765 of 2009 Page 9 of 41 12. Referring to Bombay Dyeing( supra) and Bank of India (supra), it has been contended by Mr. Lekhi that an order of the Court must be construed having regard to the context in which the same was passed. For the said purpose, the orders of the Courts are required to be read in their entirety. A judgment, it is well settled, cannot be read as a statute. It is further asserted that construction of a judgment should be made in the light of the factual matrix involved therein. What is more important is to see the issues involved therein and the context wherein the observations were made. Any observation made in a judgment, should not be read in isolation and out of context as a decision is only an authority for what is actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. 13. Learned Senior Counsel for the petitioners also asserted that the subject matter of the Supreme Court proceedings was different as regularization pursuant to inclusion of the name of the petitioners' club was not before the Apex Court and liberty was granted to the petitioners to avail any remedy available to them. According to him by denying the regularization the respondents have violated Article 14 of the Constitution of India. According to him there is no bar for the WP (C) 10765 of 2009 Page 10 of 41 petitioners to invoke Article 226 of the Constitution of India in the facts and circumstances 14. The petitioners have also contended that after draft zonal plan was submitted by the respondent no.3 including the name of the sports club of the petitioners, the respondent no.3 could not interfere and could not contend that the petitioners club is not to be included in the institutions/clubs for the regularization. According to the learned counsel, the respondents cannot be allowed to blow hot and cold. Allegation against the respondent no.3 is also of acting contrary to the requirements of section 10 of DDA Act. Since the modified draft zonal plan including the name of the club of the petitioners had been submitted, the respondent no.3 could not modify the draft zonal plan in any manner. According to him a thing must be done in the manner it is provided and not in any other manner which can be inferred from various precedents of the Supreme Court and High Court. Reliance was also placed on118 (2005) DLT 694, Kishan Chand Bhatia Vs Union of India holding that for issuing a writ of certiorari, the Court is concerned about the legality of the decision and the procedure adopted while arriving at decision. WP (C) 10765 of 2009 Page 11 of 41 15. Per contra, the learned counsel for the respondents who have appeared on advance notice has contended that merely filing an application for regularization pursuant to which the name of petitioners' sports club was included in the list of health, education, cultural or spiritual/religion Institutes falling in zone 'J' as per the public notice issued by Master Plan section on 1st May, 2008 does not give any right nor the petitioners can invoke legitimate expectations in this regard. It is contended that the note appended to the said list categorically stipulated that mere inclusion of name in the list will not qualify any legal right/land use/ownership or any other benefit/entitlement or relieve from legal proceedings/law etc. The learned Counsel Mr. Verma for respondent no.3 has asserted that there can be legitimate expectation only if there is promise, representation or an established practice and the petitioners have none. It is further contended that before invoking legitimate expectations, the petitioners has to show that they have acted on the expectations which have worked to their detriment. 16. The respondents have contended that the pleas of the petitioners for release of their lands from acquisition have already been dismissed and where similar pleas were raised which have already been declined by the Court. According to respondents the rights of the petitioners, if any, have already been extinguished and the petitioners after giving WP (C) 10765 of 2009 Page 12 of 41 undertaking to the Supreme Court to vacate the lands, are not left with any rights to claim regularization. It has already been held that the petitioners cannot invoke Article 14 of the Constitution of India to perpetuate their illegal possession. They have already delayed the execution of public purpose by resorting to all kinds of litigation. It is contended before considering the plea of legitimate expectation, the conduct of the petitioners has also to be seen. Relying on (1993) 3 SCC 499, Union of India Vs Hindustan Development Corp. it is contended that expectation cannot be same as anticipation and a pious hope even leading to a moral obligation cannot amount to a legitimate expectation. The learned counsel has pleaded that the decision not to regularize the lands of the petitioners after their pleas for release of lands were declined by the Supreme Court after a very protected litigation, is a fair and objective decision and would not entitle petitioners for any relief as sought in the present writ petition. Referring to Madras City Wine Merchants Assn Vs State of T.N, (1994) 5 SCC 509 it is stated that the legitimate expectations arise if there is an express promise given by the public authority; existence of regular practice and such an expectation is reasonable. However, if there is a change in policy or in public interest the position is altered by a rule or regulation, no question of legitimate expectation would arise. Reliance was also placed on Official Liquidator Vs Dayanand, (2008) 10 SCC1; Food Corporation of India Vs Kamdhenu Cattle Feed Industries, (1993) 1 SCC 71 that any WP (C) 10765 of 2009 Page 13 of 41 expectation which is based on sporadic or casual of random acts, or which is unreasonable, illogical or invalid cannot be legitimate expectation. In the circumstances, it is contended that the petition is an abuse of process of law and is without any merit and is liable to be dismissed. 17. I have heard the learned counsel for the parties in great detail. The contention of the learned Senior Counsel for the petitioners Mr. Lekhi that an order of the Court must be construed having regard to the context in which the same was passed cannot be disputed. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it. It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. The Supreme Court in Bharat Petroleum Corporation Ltd and Anr. v. N.R.Vairamani and Anr., AIR 2004 SC 778 had observed:- " Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's WP (C) 10765 of 2009 Page 14 of 41 theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. The following words of Lord Denning in the matter of applying precedents have become locus classicus: "Each case depends on its own facts and a close similarity between one case and Anr. is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of Anr.. To decide therefore, on which side of the line a case falls, the broad resemblance to Anr. case is not at all decisive." In Ambica Quarry Works v. State of Gujarat and Ors. MANU/SC/0049/1986 the Supreme Court observed:- "The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it." Similarly in In Bhavnagar University v. Palitana Sugar Mills Pvt Ltd (2003) 2 SC 111 (vide para 59), the Supreme observed:- " It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision." WP (C) 10765 of 2009 Page 15 of 41 In P.S.Rao Vs State, JT 2002 (3) SC 1, the Supreme Court had held as under: ". There is always a peril in treating the words of judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusion in two cases.” In Ragiq Vs State, 1980 SCC (Crl) 946 it was observed as under: “The ratio of one case cannot be mechanically applied to another case without having regard to the fact situation and circumstances obtaining in two cases.” 18. The petitioners have relied on a number of precedents in respect of various contentions raised, however, the ratios of which may not be applicable in the facts and circumstances of the petitioners' Writ petition. This however, will not be correct as far as the decision of the appeals of the petitioners declining their plea for release of their lands from acquisition. The petitioners had raised many similar pleas on which they are seeking regularization, for the purpose of release of their lands from acquisition, the decision of such pleas however, in the facts and circumstances shall be binding on the petitioners. 19. From the pleas and contentions raised by the petitioners it emerges that the petitioner No.1, Shanti Sports Club, is a society which WP (C) 10765 of 2009 Page 16 of 41 is registered under the Society's Registration Act, 1860 and the society runs a sports complex and is seeking regularization of the sports club in view of public notice dated 1st May, 2008, though their plea for release of lands from acquisition has been declined after a protected litigation. Petitioner no.2 is a company which is the owner of the land on which the sports complex is run by petitioner no.1. President of the Society and is also the director of petitioner no.2. The petitioner no.2 is alleged to have given implied consent to petitioner no.1 to seek regularization 20. On 1st May, 2008 the DDA had invited applications from the baonafide institutions rendering cultural, Religious (including spiritual), healthcare and education services which had been in existence prior to 1st January, 2006 for regularization. The notification No.F.20 (19)96-MP dated 1st May, 2008 sought the following for the purpose of consideration of the applications for regularization:- I. Certified/verified land ownership documents along-with site plan giving physical description of the land/property under reference. II. Area of land under reference. III. Plan and details of existing built up area IV. Site plan indicating the location of buildings and surrounding roads/features. V. Proof of existence of institutions and buildings before 01.01.2006. WP (C) 10765 of 2009 Page 17 of 41 VI. Registration documents of the Society VII. Set of building plans for record of the Local Body/Authority along-with certificates of structural safety and fire safety. VIII. Google map in the scale of 1:1000 as on or preceding 1.1.2006. The said notification categorically stipulated that the regularization shall be considered in respect of lands which do not form part of the notified Ridge/Regional Park/Developed Park/River Bed/Gram Sabha or public land. Lands affected by Heritage Zone required for Master plan roads or other essential public facilities etc. shall not be regularized. The terms and conditions as contemplated under the notification dated 1st May, 2008 are as under:-