Ramjas Foundation and
another Vs Union of India and others
JUDGMENT
G.S. Singhvi, J.
1.
This
appeal is directed against judgment dated 18.5.2001 of the Division Bench of
the Delhi High Court whereby the first appeal preferred by the appellants against
the judgment of the learned Single Judge, who declined to nullify the
acquisition of their land was dismissed.
2.
Rai
Sahib Kedar Nath, who retired as District Judge from the Punjab Judicial
Service started three schools in Kucha Ghasi Ram, Chandni Chowk,Bazar Sita Ram
and Daryaganj, Delhi between 1912 and 1916 in the memory of his father, Lala
Ramjas Mal. He purchased land measuring about 1800 big has in villages Chowkri
Mubarikabad and Sadhora Khurd,which now form part of NCR Delhi from his own
resources and by collecting money in the form of donations from other
philanthropists. In a public function held on 25.12.1916 in Ramjas School,
Kucha Ghasi Ram,Chandani Chowk, Rai Sahib Kedar Nath is said to have made an
announcement that he had created a Wakf and dedicated and donated all his
movable and immovable properties including the land in villages Chowki Mubarikabad
and Sadhora Khurd to the said school for charitable purposes, namely,
advancement and promotion of education to the public and poor students. In
1917, he formed Ramjas College Society and got the same registered under the
Societies Registration Act, 1860 as a charitable institution. The objects of
the Society were as under: "
i.
To
provide school and university education for boys and girls.
ii.
To
maintain schools, colleges, boarding houses and training institutes for
training of teachers.
iii.
To
provide means for imparting technical and industrial education in connection
with the institutions under the control of foundation.
iv.
To
provide means for imparting a sound moral and catholic religious education
free from superstitious and controversial matters and based on the Vedas and
ancient shastras.
v.
To
encourage and take part in Scientific Research of various kinds as well as in
the study translation and publication of the Sanskrit literature and
philosophy of ancient India.
vi.
To
amalgamate with the foundation any other societies having objects similar to
those or any of these of the Foundation. vii) To give loans to the
institutions aided, run managed by or under the control of the Foundation and
for the benefits of the students studying in the said institutions, aid, grants,
donations, subscribe to Government and/or semi- Government relief funds, award
scholarships, fellowships, stipends of any kind as also to take/accept donations,
gifts and charities etc."3. After some time, Rai Sahib Kedar Nath
formed a managing committee of which he was the President. On 25.6.1936, he
transferred the entire land to the Society by executing a release deed. In
1967, the name of the Society was changed from Ramjas College Society to Ramjas
Foundation and the same was registered as such.
1.
2.
3.
4.
By
notification dated 13.11.1959 issued under Section 4 of the Land Acquisition Act,
1894 (for short, `the Act'), the Chief Commissioner of Delhi proposed
acquisition of 34070 acres land including 872 big has and 17biswas land of
appellant No.1 situated at Chowkri Mubarikabad and 730bighas land situated at
Sadhora Khurd for planned development of Delhi excluding the following
categories of land: (a) Government land and evacuee land; (b) the land
already notified under Section 6 of the Land Acquisition Act for any
Government Scheme; (c) the land already notified either under Section 4 or 6
of the Land Acquisition Act, for House Building Cooperative
Societies mentioned in Annexure III; (d) the land under graveyards, tombs,
shrines and the land attached to religious institutions and Wakf property.
5.
The
objections filed on behalf of appellant No.1 under Section 5-A of the Act
through Shri Ratan Lal Gupta, Advocate were rejected by the competent
authority. Thereafter, three different notifications were issued under Section
6 of the Act.
6.
The
acquisition of land vide notification dated 13.11.1959 was challenged in large
number of petitions filed in Delhi High Court which were dismissed. The appeals
filed against the orders of the Delhi HighCourt were dismissed by this Court in
Aflatoon v. Lt. Governor of Delhi(1975) 4 SCC 285 and Lila Ram v. Union of
India (1975) 2 SCC 547.
7.
Appellant
No.1 also filed several cases in the Delhi High Court and this Court
questioning the acquisition of its land and consequential actions taken by the
respondents. The particulars of the cases filed by appellantNo.1 and their
result are detailed below: Chowkri Mubarikabad
i.
The
first writ petition bearing No.409/1968 was filed by appellantNo.1 in the Delhi
High Court for quashing notifications dated 13.11.1959and 28.2.1968 issued
under Sections 4 and 6 of the Act respectively main lyon the ground that its
land is exempted from acquisition in terms of clause(d) of notification dated
13.11.1959 because it was a Wakf property. This assertion was contested by the
respondents. They pleaded that the property in dispute is neither a Wakf nor it
can be treated as Wakf because it had not been created by a Muslim. The learned
Single Judge was of the view that the adjudication of the writ petition would
need determination of complicated questions of fact and such questions cannot
be decided under Article 226 of the Constitution. Thereupon, the counsel
appearing on behalf of appellant No.1 sought leave of the Court to withdraw the
writ petition with liberty to file a civil suit. His prayer was granted by the
Court.
ii.
Immediately
after disposal of the writ petition, appellant No.1 filed Suit No.451/1971 with
the following substantive prayer: "A decree for declaration be passed in
favour of the plaintiffs and against the defendants to the effect that since
the plaintiffs society is a charitable education institution and the land in dispute
is a wakf property or in the nature of wakf property, the same is exempt from
the purview of notification under Section 4 of the Land Acquisition Act by
virtue of clause (d) of para 2 of the Notification No.F.15(iii)/59-L.S.G
dated 13.11.1959 and the impugned notifications, acquisition notices and the proceedings
consequent thereon are void abolition, without jurisdiction, discriminatory,
arbitrary, vague, indefinite, ultra vires, against the principles of natural
justice and the provisions of the Land Acquisition Act and are liable to be
set aside and cancelled."
iii.
After
detailed consideration of the pleadings and documents produced by the parties,
the learned Single Judge dismissed the suit. Appellant No.2 -Shri Ram Kanwar
Gupta joined appellant No.1 in filing appeal against the judgment of the
learned Single Judge, which was dismissed by the Division Bench of the High
Court vide judgment dated 18.5.2001. Thereafter, notification under Section 17
of the Act was issued on 23.7.2001 and possession of the land was taken by the
Land Acquisition Collector and handed over to the Delhi Development Authority. Sadhora
Khurd
(i) W.P. No.213/1973
filed by appellant No.1 challenging the acquisition of land situated at Sadhora
Khurd was dismissed by the learned Single Judges withdrawn.
(ii) After 5
years, appellant No.1 filed CWP No.106/1978 for quashing the notifications
issued under Sections 4 and 6 and notices issued under Sections 9 and 10 of the
Act. The same was dismissed by the Division Bench of the High Court vide its
order dated 31.1.1978.
(iii) Civil Appeal
No. 2213 of 1978 filed by appellant No.1 against the order of the Division
Bench was dismissed by this Court on 13.11.1972 on the ground of delay and
blameworthy conduct of appellant No.1 -Ramjas Foundation v. Union of India
(1993) Supp 2 SCC 20.
(iv) After
dismissal of the civil appeal, the Land Acquisition Collector passed Award
No.10/94-95 dated 7.6.1994 and supplementary AwardNos.10-A/94-95, 10-B/94-95,
10-C/94-95 and 10-D/94-95 all dated11.11.1994 in respect of 718 big has 14 bis was
land situated at Sadhora Khurd and took possession of 676 big has and 8 bis was
of land.
(v) Appellant No.1
challenged the awards in CWP No.4343/1997 and prayed for quashing the action of
the respondents to take possession of the acquired land. It further prayed for
issue of a mandamus to respondents to release land by issuing notification
under Section 48 of the Act. AppellantNo.1 filed another writ petition (CWP
No.5493/1999) for grant of a declaration that land situated in village Sadhora
Khurd continues to be in its possession. By an order dated 26.4.2000, the
Division Bench of the High Court dismissed CWP No. 4343/1997 but gave a
direction to the Lt. Governor to pass appropriate order on the application made
by appellantNo.1 for de notification of the acquired land. Similar order
appears to have been passed in CWP No. 5493/1999.
(vi) In the
meanwhile, Bhagwan Dass filed CWP No.1811/1995 by way of public interest
litigation and prayed for issue of a mandamus to the respondents to take
possession of 730 big has of land and use the same as per the plan of Zone B-5.
That petition was disposed of by the Division Bench of the High Court on
26.4.2000 by taking cognizance of the statement made by the counsel appearing
for the Delhi Development Authority that a decision had been taken not to
release land of appellant No.1 from acquisition.
(vii) The orders
passed by the High Court in CWP Nos.1811/1995,4343/1997 and 5493/1999 were
challenged before this Court in S.L.P. (C)Nos.15017, 15216 and 19741 of 2000 on
several grounds including the following:
"(iii) Because
the petitioner society having been created by Rai Sahab Kedar Nath, Retired
District Judge, Punjab thereby dedicating all his movable and immovable
properties, for Charitable purposes establishing to run the schools and
colleges for public charity of education covered under and/or is waqf and
property held is or in the nature of a waqf property even if the Waqf Act may
not be applicable to such society being not attached to any specific caste
and/or religion. (iv) Because a notification issued under the provisions of
the Land Acquisition Act also being "Law" is liable to be struck down
if it is contrary to the fundamental rights guaranteed under Part III of the
Constitution of India, as in view of the decision of this Hon'ble Court in
Indian Express Newspapers Vs Union of India, reported at [1985] 1 SCC 641, para
83 at 693. (v) Because any law and/or notification under the statute i.e. the
Land Acquisition Act being discriminatory on ground of caste or religion is
liable to be declared as ultra vires of the Constitution and must be quashed
as a whole." (emphasis supplied)(viii) All the special leave petitions
were disposed by this Court on 4.2.2002in the following terms: "We have
heard Shri Shanti Bhushan, learned senior counsel, appearing for the
petitioners. We are not satisfied that this petition merits further
consideration by this Court. However, it is pointed out that in spite of the
directions issued by the High Court that the representation filed by the
petitioners before the Lt. Governor of Delhi for considering their case for de-notification
of the land in question has not been disposed of till date. If that be so we
direct that the application so filed will be disposed of within a period of
six weeks from today."(ix) In compliance of the direction given by the
High Court and this Court Lt. Governor, Delhi passed order dated 18.6.2002 and
rejected the prayer of appellant No.1 for de-notification of its land by
recording the following reasons: "I have gone through all the papers on
record and have considered the matter at length. Possession of area admeasuring
563 big has 07 bis was was taken by DDA on "as is where is" basis as
land was not physically vacant. The said area is replete with factories. The
Anand Parbat Industrial Area as it has come to be popularly known, has come up
in a haphazard and unplanned manner and has over the years, also become
degraded and decrepit. The congested and unsystematic growth of factories in
the area has turned it into a veritable public hazard. Safety considerations
are wanting. Most of the lanes are too narrow for a fire tender to enter. The
electricity distribution system is problematic. The other infrastructure and basic
services are also inadequate. Apart from being a congested and degraded cluster
of factories operating in sub- optimal conditions, the area is also hazardous
where public safety requirements warrant early remedial measures. The area is
mentioned in the Master Plan of Delhi as "Industrial". There are thus
sound and compelling reasons to effect redevelopment of the area in the overall
public interest. For this the entire land mass needs to be physically taken
over, planned, roads and lanes straightened and widened to the extent feasible
and new infrastructure laid down as per the plans. Institutional services like
fire service, electricity substations etc. will have to be properly located. A
redevelopment plan on these lines has, in fact, been prepared after consulting
the occupants. The only possible way to achieve implementation of the
redevelopment plan is through land acquisition. Without physically taking over
the entire chunk of land, laying of infrastructure as per the redevelopment
plans will not be possible. Nor is it desirable or safe to delay any longer redevelopment
of the area, which is an imminent necessity. For the aforesaid considerations,
I do not find it prudent, desirable or feasible to de-notify the said chunk of
land. De-notification of 67 big has bis was land has already been made in
favour of the petitioners who have thereby received a fair degree of
consideration from the government already. Any further de-notification will be
contrary to public interest and as such cannot be made. The
petitions/representations in this regard are hereby disposed of accordingly."(x)
Appellant No.1 challenged the order of the Lt. Governor in W.P.No.5138/2002,
which was dismissed by the Division Bench of the High Court by detailed
judgment dated 6.2.2004. S.L.P. (C) No.7026 of 2004filed against that judgment
was dismissed as withdrawn.
1.
2.
3.
4.
5.
6.
7.
8.
Shri
R. Venkataramani, learned senior counsel for the appellants reiterated the
argument made before the High Court that in view of clause(d) of notification
dated 13.11.1959, the land of the appellant was liable to be excluded from acquisition
because it was a Wakf property. Learned counsel argued that the dedication of
land by Rai Sahib Kedar Nath was for a charitable purpose and this, by itself,
is conclusive evidence of his intention to create a Wakf. Learned counsel
emphasized that dedication made by Rai Sahib Kedar Nath was without any
reservation in favour of any beneficiary as trustee or otherwise and, as such,
the land in question became part of Wakf property and argued that the same
could not be acquired in the name of planned development of Delhi. Learned
counsel invited the Court's attention to the amended definition of `Wakf'
contained in Section 3(1) of the Wakf Act, 1954 and argued that a non-Muslim
can also create Wakf.Learned senior counsel submitted that there is no injunction
under the un-codified or codified Muslim Law against dedication of property to
a charitable purpose recognized by Muslim Law by a non-Muslim or a person not
professing the Islamic faith. He further submitted that merely because Rai
Sahib Kedar Nath was a Hindu and had performed haven etc. before renouncing the
property in favour of the Society for a charitable purpose is not sufficient to
deny benefit of exemption to appellant No.1 in terms of clause (d) of
notification dated 13.11.1959. Learned counsel further argued that exemption
clause contained in notification dated 13.11.1959 should be liberally construed
in a manner which will benefit dedication made for charitable purpose
irrespective of caste and/or religion, else the impugned notification will
become discriminatory and violative of Articles 14 and 15of the Constitution.
In support of his arguments, learned counsel produced three compilations of
which one contains copies of the orders passed by the Delhi High Court, this
Court as also the one passed by the Lt. Governor of Delhi and a copy of
notification dated 4.4.2002 issued under Section 48 of the Act for release of
67 big has 14 bis was of land of village Sadhora Khurd. The second volume
contains extracts of text books and commentaries on Mohammadan Law/Muslim Law
and the third volume contains compilation of various judgments. During the
course of submissions, Shri Venkataramani produced a fresh compilation of the
list of dates incorporating therein the developments which have taken place
after filing of the special leave petition. This compilation shows that the
area in which land of appellant No.1 is situated has developed as a residential
locality and is recognized as unauthorized colony for the purpose of
regularization; that some parts of the land have also been developed as Anand
Parbat Industrial Area and the Delhi Development Authority has invited
applications and declarations from the residents/unauthorized occupants of
Anand Parbat Industrial Area for deciding the licence fee. The appellants have
also claimed that they are running 19 schools and one degree college and one Sports
and Mountaineering Institute at Chowkri Mubarikabad.
9.
Shri
Amarendra Sharan, Senior Advocate and Shri Vishnu B. Saharya, Advocate
appearing for the Delhi Development Authority and Smt.Gita Luthra, Senior
Advocate and Shri D.N. Goburdhun, Advocate appearing for the Union of India
supported the impugned judgment and argued that the appeal should be dismissed
as a frivolous piece of litigation. Learned counsel extensively referred to the
judgment in Ramjas Foundation v. Union of India (supra), order dated 4.2.2002
passed in S.L.P.(C) No. 15017/2000 and connected matters and argued that when
this Court has already negatived the plea of appellant No.1 that the property situated
at Sadhora Khurd is a Wakf property and is exempted from acquisition, the
appellants cannot resurrect the same plea in respect of the land situated at
Chowkri Mubarikabad. Learned counsel then argued that the appellants' claim for
exemption was rightly rejected by the learned Single Judge and the Division
Bench of the Delhi High Court because no evidence was produced to prove that
Rai Sahib Kedar Nath had created a Wakf and the property transferred to the
Society became a Wakf property. Shri Amarendra Sharan emphasized that
renouncement of property by RaiSahib Kedar Nath in favour of the Society formed
by him for educational purposes did not result in creation of a Wakf and the
property did not become Wakf property because the dedication made by him was preceded
by "Samarpan" and "Sankalp" which are well known concepts
of Hindu Law. Another argument of the learned senior counsel is that clause (d)
of notification dated 13.11.1959 cannot be interpreted as including every
dedication of property for charitable purpose and the expression `Wakf property'
must be given a restricted interpretation so as to include the property
attached to the Wakf created by Muslims only.
10.
We
have considered the respective submissions. In our view, the appeal deserves to
be dismissed because the appellants have not approached the Court with clean
hands. In Ramjas Foundation v. Union of India, acquisition of the land situated
at Sadhora Khurd was challenged on the ground of violation of Section 5-A of
the Act and also on the ground that land in question is exempted from
acquisition because it is a Wakf property. Another plea taken by appellant No.1
was that if the land belonging to educational and charitable institutions
established by Hindus and non-Muslims is not treated as Wakf property, then the
exemption clause (d) is liable to be declared void for violation of Article 14
of the Constitution. While rejecting the argument that the acquisition
proceedings were vitiated due to violation of Section 5-A of the Act, this
Court noted that the appellants had made a patently incorrect statement on the
issue of denial of opportunity of personal hearing and observed: "As
regards the objection of the violation of the mandatory provisions of Section
5-A of the Act in not affording an opportunity of personal hearing while
deciding such objections, we granted an opportunity to the learned Additional
Solicitor General to place material after examining the original record. We
granted this opportunity to the respondents on account of the reason that the
writ petition had been dismissed by the High Court in limine without issuing
notice to the respondents and as such the respondents had not been given any
opportunity before the High Court to place any material to refute the
allegations made by the appellants in this regard. The Additional Solicitor General
during the course of the hearing of the matter placed an order of the Land
Acquisition Collector, Delhi dated February 23, 1968 which has been taken on
record and for the purposes of identification has been marked as Annexure `X'.
A copy of the said Annexure `X' was also given to the learned counsel for the
appellants. A perusal of the aforesaid order dated March 22, 1968 clearly shows
that the Ramjas Foundation Society was represented through Shri Ratan Lal Gupta,
Advocate who was given a personal hearing. From a perusal of the aforesaid document
Annexure `X' dated February 23, 1968 it is clear that full opportunity of
hearing through counsel was afforded to the Ramjas Foundation. It has been further
mentioned in this order that the Ramjas Foundation Society was also allowed to
file fresh objections if so desired, but Shri Ratan Lal Gupta, learned Advocate
for the petitioner Society declined and stated that there was nothing more to
add in the previous objection petition. After bringing the said document
Annexure `X' to the notice of the learned counsel for the appellants, no
satisfactory explanation or argument came forward on behalf of the appellants.
The conduct of the appellants in raising the plea that no opportunity of
personal hearing was given to the appellants 16 in respect of the objections
filed under Section 5-A of the Act was totally baseless and factually incorrect
and such conduct is reprehensible. It is well settled that a person invoking an
equitable extraordinary jurisdiction of the Court under Article 226 of the
Constitution is required to come with clean hands and should not conceal the
material facts. The objection regarding not affording an opportunity of
personal hearing in respect of objections filed under Section 5-A of the Act
was one of the main planks of the grounds raised in the writ petition as well
as in the special leave petition filed before this Court and ought we know if
such ground had not been taken this Court would have entertained this appeal or
not. The appellants have taken the advantage of obtaining the stay order also
from this Court which is continuing for the last 14 years as the special leave
petition was filed in 1978 itself. It may be further noted that a common
objection petition under Section 5-A of the Act in respect of both the lands
situated in Mubarikabad as well as in Sadhurakhurd was filed on December 11,
1959 through Shri Ratan Lal Gupta, Advocate. The said objections were heard in
the presence of Shri Ratan Lal Gupta, Advocate and disposed of by one common
order Annexure `X' and we cannot believe an ipse dixit explanation made orally
during the course of arguments on behalf of the appellants that they had no
knowledge of any personal hearing being given to Shri Ratan Lal Gupta,
Advocate. It is also important to note that no such objection was taken in
respect of land in Mubarikabad." (emphasis supplied)
The Court also
criticized appellant No.1 for playing a game of hide and seek and observed: "It
may be noted that the reference with regard to suit No. 451 of 1971 decided on
March 21, 1977 is in respect of the land of petitioners situated in
Mubarikabad. It is surprising that though the opportunity was sought for filing
a fresh suit, the appellants again filed a Writ Petition No. 106 of 1978 in the
High Court on January 7, 1978 which was ultimately dismissed by the High 17Court
in limine on January 31, 1978 by a Division Bench comprising T.P.S. Chawla and
Awadh Behari, JJ. In this Writ Petition No. 106 of 1978 the appellants
conveniently omitted to mention that the permission to withdraw the Petition
No. 213 of1973 was granted on the statement of Shri M.C. Gupta that his clients
reserved the liberty to file a fresh suit and not writ. Thus no liberty was
sought or given for filing a fresh writ petition. In any case there were no
fresh ground or circumstances available to the appellants to file a fresh Writ
Petition No. 106 of 1978 on January 7, 1978 on identical grounds when the
earlier Writ Petition No. 213 of 1973 had been dismissed as withdrawn on March
30, 1977. Nothing had happened between March 30,1977 and January 7, 1978 for
giving a fresh cause of action to the appellants to file the Writ Petition No.
106 of 1978. Awadh Behari, J. had dismissed the suit No. 451 of 1971 by order
dated March 21, 1977 in regard to the lands in Mubarikabad and he was also one
of the Judges of the Division Bench who passed the impugned order dated January
31, 1978 dismissing the writ petition in limine as he was fully aware of the entire
background of this litigation. The appellants are themselvesresponsible for
creating confusion in initiating separate proceedings at different periods of
time in respect of the lands situated in Mubarikabad and Sadhurakhurd though
challenge to the acquisition proceedings was on common grounds. Learned counsel
for the appellants was unable to satisfy in respect of such conduct of hide and
seek on the part of the appellants. In case, as sought to be explained by Mr.
Tarkunde, learned senior counsel for the appellants, the appellants were
depending on the result of the civil suit filed in respect of the lands
situated in Mubarikabad there was no justification for filing the Writ Petition
No. 213 of 1973 in respect of the land situated in Sadhurakhurd as the suit was
not decided in 1973 but was in fact dismissed on March 21, 1977. We find no
justification for filing the writ petition in respect of the land situated in Sadhurakhurd
in 1973 and subsequently withdrawing the writ petition on March 30, 1977
reserving the liberty to file a fresh suit but thereafter again filing the writ
petition on January 7,1978 instead of suit." (emphasis supplied)
11.
In
S.L.P.(C) No. 15017/2000 and connected matters, appellant No.1had specifically
raised a plea that its property is exempted from acquisition because it is a
Wakf property, but failed to convince the Court to nullify the acquisition
proceedings on that ground.
12.
A
careful reading of the judgment in the Ramjas Foundation v.Union of India
(supra) and the order passed in the special leave petitions clearly shows that
even though the question whether the land belonging to appellant No.1 is
exempted from acquisition in terms of clause (d) of notification dated
13.11.1959 was not decided in the first case and the appeal was dismissed
mainly on the ground of delay and contumacious conduct of the appellants, that
question will be deemed to have been answered in negative in the second case
because in the special leave petitions it was specifically pleaded that the
land belonging to appellant No.1 is exempted from acquisition being Wakf
property and this Court held that there was no merit in the appellant's case.
It is true that the Court did not record detailed reasons for not entertaining
the special leave petitions but use of the expression "we are not
satisfied that this petition merits further consideration by this Court"
clearly shows that the claim of exemption was turned down by this Court. If
appellant No.1 did not feel satisfied with order dated4.2.2002 and felt that
its claim for exemption under clause (d) of notification dated 13.11.1959 was
on firm footing, then it could have applied for review of that order.
However, as the subsequent events reveal, instead of questioning correctness of
order dated 4.2.2002, appellant No.1 accepted the negation of its claim based
on clause (d) of the notification and vigorously pursued the case for identification
of the land and partially succeeded inasmuch as vide notification dated
4.4.2002 issued under Section 48 of the Act, the Lt. Governor released 67 big has
14 bis was of the acquired land.
13.
Strangely,
in the list of dates of the special leave petition out of which this appeal
arises, there is not even a whisper about large number of cases filed by
appellant No.1 challenging the acquisition of land situated at village Sadhora
Khurd, the grounds on which the challenge was founded and the orders passed by
the High Court and this Court. The appellants also suppressed the fact that
after dismissal of the first appeal by the Division Bench of the High Court,
possession of the land was taken by the Land Acquisition Collector on 13.7.2001
and transferred to the Delhi Development Authority. What could be the possible
reason for these omissions? Any person of reasonable prudence will at once
respond to this question by saying that sole object of not disclosing the facts
relating to other cases was to keep the Court in dark about rejection of
challenge to the acquisition of a portion of land which the appellants are
claiming to be Wakf property. We have no doubt that the appellants did so for
the purpose of persuading this Court to pass an interim order and they
succeeded in this venture because while issuing notice on 26.11.2001, this
Court directed that there shall be stay of dispossession.
14.
14.
The principle that a person who does not come to the Court with clean hands is
not entitled to be heard on the merits of his grievance and, in any case, such
person is not entitled to any relief is applicable not only to the petitions
filed under Articles 32, 226 and 136 of the Constitution but also to the cases
instituted in others courts and judicial forums. The object underlying the
principle is that every Court is not only entitled but is duty bound to protect
itself from unscrupulous litigants who do not have any respect for truth and
who try to pollute the stream of justice by resorting to falsehood or by making
misstatement or by suppressing facts which have bearing on adjudication of the
issue(s) arising in the case. In Dalglish v.Jarvie 2 Mac. & G. 231, 238,
Lord Lang dale and Rolfe B. observed: "It is the duty of a party asking
for an injunction to bring under the notice of the Court all facts material to
the determination of his right to that injunction; and it is no excuse for him
to say that he was not aware of the importance of any fact which he has omitted
to bring forward. In Castelli v. Cook (1849)7 Hare, 89, 94 Wigram V.C. stated
the rule in the following words: "A plaintiff applying ex parte comes
under a contract with the Court that he will state the whole case fully and
fairly to the Court. If he fails to do that, and the Court finds, when other
party applies to dissolve the injunction, that any material fact has been
suppressed or not property brought forward, the plaintiff is told the Court
will not decide on the merits, and that, as he has broken faith with the Court,
the injunction must go." In Republic of Peruv. Dreyfus Brothers &
Company 55 L.T. 802, 803, Kay J. held as under: "I have always maintained,
and I think it most important to maintain most strictly, the rule that, in ex
parte applications to this Court, the utmost good faith must be observed. If
there is an important misstatement, speaking for myself, I have never hesitated,
and never shall hesitate until the rule is altered, to discharge the order at
once, so as to impress upon all persons who are suitors in this Court the
importance of dealing in good faith in the Court when ex parte applications are
made."The same rule was restated by Scrutton L., J in R. v. Kensington Income
Tax Commissioner (1917) 1 K.B. 486. The facts of that case were that in April,
1916, the General Commissioners for the Purposes of the Income Tax Acts for the
district of Kensington made an additional assessment upon the applicant for the
year ending April 5, 1913, in respect of profits arising from foreign
possessions. On May 16, 1916, the applicant obtained a rule misdirected to the
Commissioners calling upon them to show cause why a writ of prohibition should
not be awarded to prohibit them from proceeding upon the assessment upon the
ground that the applicant was not a subject of the King nor resident within the
United Kingdom and had not been in the United Kingdom, except for temporary
purposes, nor with any view or intent of establishing her residence therein, nor
for a period equal to six months in any one year. In the affidavit on which the
rule was obtained the applicant stated that she was a French subject and
resident in France and was not and had not been a subject of the United Kingdom
nor a resident in the United Kingdom; that during the year ending April 5,
1913, she was in the United Kingdom for temporary purposes on visits for
sixty-eight days; that she spent about twenty of these days in London at her
brother's house, 213,King's Road, Chelsea, generally in company with other
guests of her brother; that she was also in the United Kingdom during the year ending
April 5, 1914, for temporary purposes on visits, and spent part of the time at213,
King's Road aforesaid; and that since the month of November, 1914,she had not
been in the United Kingdom. From the affidavits filed on behalf of the
Commissioners and of the surveyor of taxes, who showed cause against the rule
nisi, and from the affidavit of the applicant in reply, it appeared that in
February, 1909, a leasehold house, 213, King's Road, Chelsea, had been taken in
the name of the applicant's brother. The purchase-money for the lease of the
house and the furniture amounted to4000l., and this was paid by the applicant
out of her own money. The accounts of household expenses were paid by the
brother and subsequently adjusted between him and the applicant. The Divisional
Court without dealing with the merits of the case discharged the rule on the
ground that the applicant had suppressed or misrepresented the facts material
to her application. The Divisional Court observed that the Court, for its own
protection is entitled to say "we refuse this writ of prohibition without
going into the merits of the case on the ground of the conduct of the applicant
in bringing the case before us". On appeal, Lord Cozens-Hardy M.R. and
Warrington L.J. approved the view taken by the Divisional Court. ScruttonL.,J.
who agreed that the appeal should be dismissed observed: "and it has been
for many years the rule of the Court, and one which it is of the greatest
importance to maintain, that when an applicant comes to the Court to obtain
relief on an ex parte statement he should make a full and fair disclosure of
all the material facts - facts, not law. He must not misstate the law if he can
help it - the court is supposed to know the law. But it knows nothing about the
facts, and the applicant must state fully and fairly the facts, and the penalty
by which the Court enforces that obligation is that if it finds out that the
facts have not been fully and fairly stated to it, the Court will set aside any
action which it has taken on the faith of the imperfect statement."
15.
The
above noted rules have been applied by this Court in large number of cases for
declining relief to a party whose conduct is blameworthy and who has not approached
the Court with clean hands -Hari Narain v. Badri Das AIR 1963 SC 1558, Welcome
Hotel v. State of A.P. (1983) 4 SCC 575, G. Narayanaswamy Reddy v. Government
of Karnataka (1991) 3 SCC 261, S.P. Chengalvaraya Naidu v. Jagannath (1994) 1
SCC 1, A.V. Papayya Sastry v. Government of A.P. (2007) 4SCC 221, Prestige
Lights Limited v. SBI (2007) 8 SCC 449, Sunil Poddar v. Union Bank of India
(2008) 2 SCC 326, K.D. Sharma v. SAIL(2008) 12 SCC 481, G. Jayashree v.
Bhagwandas S. Patel (2009) 3 SCC141 and Dalip Singh v. State of U.P. (2010) 2
SCC 114. In the last mentioned judgment, the Court lamented on the increase in
the number ofcases in which the parties have tried to misuse the process of
Court by making false and/or misleading statements or by suppressing the relevant
facts or by trying to mislead the Court in passing order in their favour and
observed: "For many centuries Indian society cherished two basic values of
life i.e. "satya" (truth) and "ahimsa" (non-violence). Mahavir,
Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in
their daily life. Truth constituted an integral part of the justice-delivery
system which was in vogue in the pre-Independence era and the people used to
feel proud to tell truth in the courts irrespective of the consequences.
However, post-Independence period has seen drastic changes in our value system.
The materialism has overshadowed the old ethos and the quest for personal gain
has become so intense that those involved in litigation do not hesitate to take
shelter of falsehood, misrepresentation and suppression of facts in the court
proceedings. In the last 40 years, a new creed of litigants has cropped up.
Those who belong to this creed do not have any respect for truth. They
shamelessly resort to falsehood and unethical means for achieving their goals.
In order to meet the challenge posed by this new creed of litigants, the courts
have, from time to time, evolved new rules and it is now well established that
a litigant, who attempts to pollute the stream of justice or who touches the
pure fountain of justice with tainted hands, is not entitled to any relief,
interim or final." (emphasis supplied)
16.
In
our view, the appellants are not entitled to any relief because despite strong
indictment by this Court in Ramjas Foundation v. Union of India, they
deliberately refrained from mentioning details of the cases instituted by them
in respect of the land situated at Sadhora Khurd and rejection of their claim
for exemption under clause (d) of notification dated13.11.1959 by the High
Court and this Court.
17.
Notwithstanding
the above noted conclusion, we have thought it proper to deal with the issue
raised in the appeal on merits. The institution of Wakf owes its origin to a
rule laid down by the prophet of Islam. It means "the tying up of property
in the ownership of God the Almighty and the devotion of the profits for the
benefit of human beings. When once it is declared that a particular property is
Wakf, or any such expression is used a simplies Wakf, or the tenor of the
document shows, if there is a wakf-nama that a dedication to pious or
charitable purpose is meant, the right of Wakifis extinguished and the
ownership is transferred to the Almighty. In his book on Mohammadan Law (Fourth
Edition) Volume I, Ammer Ali has said" Any person or whatever creed may
create Wakf, but the law requires that the object for which the dedication is
made should be lawful according to the creed of the dedicator as well as the
Islamic doctrines. Divine approbation being the essential in the constitution
of a Wakf if the object for which a dedication is made is sinful, either
according to the laws of Islam or to the creed of the dedicator it would not be
valid." This shows that a non Muslim can also create a Wakf for any
purpose which is religious under the Mohammedan Law. However, the object of
the Wakf must be lawful according to the religious creed of the maker as well.
18.
While
dealing with the question whether the land belonging to appellant No.1 is Wakf
property and is exempted from acquisition, the learned Single Judge analysed
the pleadings and documents produced by the parties, referred to the concept of
`Wakf' propounded by Ammer Ali, outlines of Mohammadan Law by Prof. A.A.A.
Fayzee (Chapter IX pg.274-275), the judgments of the Privy Council and various
High Courts in VidyaViruthi v. Baluswami AIR 1922 PC 123, Mami v. Kallandar
Ammal 54I.A. 23, Motishah v. Abdul Gaffar AIR 1956 Nagpur 38, Arur Singh
v.Badar Din AIR 1940 Lahore 119, Fuzlur Rahaman v. Anath Bandhu Pal(1911) 16
Cal. WN 114, Misra Hidavat Beg v. Seth Behari Lal AIR 1941All. 225 and Jai
Dayal v. Dewan Ram Saran Das AIR 1939 Lahore 686and observed:
"I cannot read
the term `wakf' property as embracing property impressed with the character of
a charitable trust amongst the Hindus. A property burdened with the obligation
of a charitable trust as understood in Hindu law cannot be called a wakf property
in a legal sense. In a non-legal, popular sense it may be possible to use the
expression wakf indiscriminately for and in relation to any property set apart
for charity. But in legal technology the word `wakf' has a definite and
accepted connotation. It is in that sense that the word has to be understood.
For the true interpretation of the word one must turn to Mohammadan law and see
what it means. Now the question is was Rai Kedar Nath making a wakf of his
properties when in the meeting of 1916 he made a declarationin favour of
charity. The answer to this question is in are sounding negative. This is on
the assumption that a Hinducan create a wakf though such cases are rare. The
function held at that meeting shows that Rai Kedar Nathdid two things. He
renounced his interest in his private property. He dedicated everything to the
institution he founded. These are known as Samarpan and Sankalp in Hindu Law.
There was a clear and unequivocal declaration of intention to create trust and
vesting of the same in the doner as a Trustee. There was clear proof of
dedication in the ceremony he performed. He divested himself of the property dedicated.
There was a Hawan ceremony. This shows that Rai Kedar Nathwas an orthodox
Hindu. He was a believer in religious ceremonies. What he wanted to do was to
found a charitable trust of which he himself was the founder trustee, apart from
being the Manager of the school and the President of the Society. He created a
Foundation as the name of the plaintiff now shows. He established an
institution together with provision for its perpetual maintenance. In evidence
this trust has been called by the Secretary as ‘Educational Charitable
Institution'. In the deed of settlement dated November 26, 1946, it was
described by the British Government as "a public educational
charity". All in all it comes to a charitable endowment. It can be
properly called a charitable trust. The Indian Trust Act will not govern it, as
section 1 of that Act lays down what Rai Kedar Nath created was a charitable
trust as known to Hindu Law. Reading the notification as a whole it appears to
me that the wakf property as known to Muslim Law has been excepted from the
acquisition proceedings. This has been done by the Government in exercise of
its powers of eminent domain. I do not think that it will be proper to call the
lands in question as wakf property. This is not the sense which the word bears in
the notification. In my opinion, the Chief Commissioner's notification uses the
expression `Wakf property' in the sense in which wakf is understood in
Mohammadan Law. The Chief Commissioner's notification under Section 4 Land Acquisition
Act is in the nature of a statutory instrument. It uses the expression `wakf
property'. How do we interpret those words? I think these words must be
construed according to the legal and technical meaning given to them by Muslim
Law. They are not to be given the more popular, non-legal or ordinary
dictionary meaning of the words. These words must be taken in their legal
sense." The Division Bench agreed with the learned Single Judge and observed:
"In view of the aforesaid legal exposition of the `waqf' it cannot be said
that the property of appellants, which may be Hindu charitable trust, would be
termed as `waqf property'. The learned Single Judge, to our mind, rightly held
that while using his expression in the impugned Notification issued by the statutory
authority under Section 4 of the Act the statutory authority would be presumed
to be aware of the legal implication of the term `waqf property'. Therefore,
this term cannot be read as to embrace property impressed with the character of
a charitable trust amongst the Hindus. Once the meaning of the words `waqf
property' is clear, it is difficult to accept the argument of the learned
counsel for the appellants that `popular' meaning should be given or that
statutory authority loosely used the expression `waqf' and `trust'. If the interpretation
suggested by the appellants of the term `waqf property' is accepted, it would
amount to obliterating the distinction otherwise statutorily recognized by the
Indian Trusts Act. No such interpretation can be given which nullifies the effect
of the Provision of a Statute. While interpreting such a Notification like the
one issued under Section 4 of the Act, the connotation of the word `waqf' as
legally accepted is to be preferred to a non-legal connotation. After all the
Notification passed under Sections 4 and 6 of the Land Acquisition Act is in exercise
of statutory powers and may have the effect of subordinate legislation. Such
Notification has serious ramifications. It cannot be inferred, therefore, that
framers of the Notification did not know the technical or legal meaning of the
word `waqf property' or used the expression loosely. It also cannot be presumed
that authors of such statutory Notification were not aware of other religious
charitable institutions and intended to include the same by the expression
`waqf property'. It appears that exclusion of `Waqf property' was intentional knowing
full well the meaning thereof in Muslim Law with no intention to cover other
religious charitable institutions."
19.
The
Division Bench also rejected the argument that if Wakf created by non-Muslims
is excluded from clause (d) then the same would be violative of Articles 14 and
15 of the Constitution by observing that the said plea was not pressed before
the learned Single Judge and even in the grounds of appeal, this plea was not
taken. In the opinion of the Division Bench, by omitting to press the point
before the learned Single Judge and not taking a ground in the memo of appeal,
the appellants will be deemed to have abandoned this part of challenge to the
acquisition proceedings.
20.
The
argument of Shri R. Venkataramani that by dedicating the land for a charitable
purpose Rai Sahib Kedar Nath intended to create a Wakflacks merit and deserves
to be rejected. In the function organized on25.12.1916 in Ramjas School, Kucha
Ghasi Ram, Chandani Chowk, thededicator is said to have made an announcement
that he had created a Wakfand donated all his moveable and immoveable
properties to the Society for charitable purposes but no evidence was produced
before the learned Single Judge to prove this. Rather, the evidence produced
before the learned Single Judge shows that even after the so called dedication
of land for charitable purposes, the same continued in the name of Rai Sahib
Kedar Nath till 1936when he executed the release deed in favour of the Trust of
which he himself was the founder trustee apart from being the Manager of the
school and the President of the Society. The hawan ceremony performed by Rai
SahibKedar Nath which was preceded by Samarpan and Sankalp also shows that he
did not intend to create a Wakf. This is the reason why the objects of Ramjas
College Society formed in 1917 do not make a mention of the Wakf allegedly
created by Rai Sahib Kedar Nath. In the deed of settlement executed by the
British Government, the institution was described as a public educational
charity and not as a Wakf. Therefore, the concurrent finding recorded by the
learned Single Judge and the Division Bench that what was created by Rai Sahib
Kedar Nath was a public charitable trust and not a Wakf and the property
acquired vide notification dated 13.11.1959 was not a Wakf property does not
call for interference.
21.
In
the result, the appeal is dismissed. We would have saddled the appellants with
exemplary costs but keeping in view the fact that they are running educational
institutions for benefit of the community, we refrain from passing an order to
that effect and leave the parties to bear their own costs. However, it is made
clear that henceforth the respondents shall be free to use the acquired land
for the purpose of planned development of Delhi and the appellant shall not be
entitled to obstruct the proceedingswhich may be taken by the respondents for
utilization of land for the purpose for which it was acquired or for any other
public purpose.
..................................J.
[G.S. Singhvi]
...................................J.
[Asok Kumar Ganguly]
New
Delhi
November
9, 2010.
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