D.L.F. Qutab Enclave Complex Educational Charitable Trust Vs. State of Haryana
& Ors  Insc 87 (17 February 2003)
Sinha & Ar. Lakshmanan
APPEALS NOS. 4909, 4910 AND 4911 OF 2002 S.B. SINHA, J:
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
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.
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').
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.
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.
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:
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.
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.
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
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.
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.
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
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.
Writ Petition by reason of the impugned judgment was dismissed holding:
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
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.
The impugned circulars are not arbitrary, illegal or unfair. These do not
impinge upon the protection of Article 14 of the Constitution.
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.
Salve, the learned senior counsel appearing on behalf of appellant in Civil
Appeal No. 4909 of 2002 would submit that the said Act, 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.
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.
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.
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
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.
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 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.
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.
has been defined in Section 2(c) of the said Act in the following terms:
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:
"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.
Development works" and "internal development works" have been
defined in Section 2(g) and 2(i) of the Act as under:
"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;
development works" means (i) metalling of roads and paving of footpaths;
and plantation with trees as open spaces;
and wholesome water supply;
and drains both for storm and sullage water and necessary provision for their
treatment and disposal; and
other work that the Director may think necessary in the interest of proper
development of a colony;
clauses except Section 2(g) having regard to user of expression
"means" can neither be construed liberally nor can be held to be
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.
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.
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.
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.
relevant provision of Section 3(3) of the said Act reads thus:
After the enquiry under sub-section (2), the Director, by an order in writing,
shall (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) ..
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;
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 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.
7 prohibits advertisement and transfer of plots and reads as under:
Prohibition to advertise and transfer plots.
as prescribed in Section 9, no person shall
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
or re-erect any building in any colony in respect of which a licence under
Section 3 has not been granted;
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
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.
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.
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.
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.
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
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
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
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
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.
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.
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 view of the fact that transferee thereof did
not acquire any title whatsoever.
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.
statute, as is well known, must be strictly construed.
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.
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.
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.
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.
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.
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 subjected to the
consequences laid down therefor in Section 10 of the said Act.
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.
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:
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.
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.
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
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.
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.
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.
now consider the decisions whereupon Mr. Anand placed strong reliance. 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:
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
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.
exception to the said ratio can be taken.
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:
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 or
make well established provisions of existing law nugatory." 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.
such contention it was held:
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".
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.
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.
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:
That the owner shall drive maximum net profit @ 15% of the total cost of
development of a colony after making provisions of statutory taxes.
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.
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 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
the reasons aforementioned the impugned judgment cannot be sustained which is
set aside accordingly.
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
the foregoing reasons, the appeals are allowed but in the fact and
circumstances of the case, there shall be no order as to costs.
Court in a case of this nature is not concerned with the morality of law. It is
concerned with its essence. The preamble of the act shows it is meant to
regulate use of land in certain manner. It is not concerned with the ownership.
The definition of 'owner' is an inclusive definition. It has to be construed
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
scc 613 at 692 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 the Act, articulate and inarticulate, and thus translate the
intention of the Parliament and fulfill 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.
scr 457 at 464 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
scr 254 at 264 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 or make well established provisions of existing law nugatory.
APPEAL NO. 4909 OF 2002 M/s. D.L.F. Universal Ltd. Appellants Versus State of Haryana
and Another Respondents.
APPEAL NO. 4910 OF 2002 Gunjan Nijunj Educational Institute (P) Ltd. Appellants
Versus M/s. DLF Universal Ltd. and Others Respondents.
APPEAL NO. 4911 OF 2002 A.H. Handa and Others Appellants Versus M/s. DLF
Universal Ltd. and Others Respondents.