16

THE ANCIENT MONUMENTS AND ARCHAEOLOGICAL SITES

AND REMAINS ACT, 1958
――
ARRANGEMENT OF SECTIONS
――
PRELIMINARY
SECTIONS
1. Short title, extent and commencement.
2. Definitions.
2A. Construction of references to any law not in force in the State of Jammu and Kashmir.
ANCIENT MONUMENTS AND ARCHAEOLOGICAL SITES AND REMAINS OF NATIONAL IMPORTANCE
3. Certain ancient monuments, etc., deemed to be of national importance.
4. Power of Central Government to declare ancient monuments, etc., to be of national importance.
4A. Categorisation and classification in respect of ancient monuments or archaeological sites and
remains declared as of national importance under sections 3 and 4.
PROTECTED MONUMENTS
5. Acquisition of rights in a protected monument.
6. Preservation of protected monument by agreement.
7. Owners under disability or not in possession.
8. Application of endowment to repair a protected monument.
9. Failure or refusal to enter into an agreement.
10. Power to make order prohibiting contravention of agreement under section 6.
11. Enforcement of agreements.
12. Purchasers at certain sales and persons claiming through owner bound by instrument executed
by owner.
13. Acquisition of protected monuments.
14. Maintenance of certain protected monuments.
15. Voluntary contributions.
16. Protection of place of worship from misuse, pollution or desecration.
17. Relinquishment of Government rights in a monument.
18. Right of access to protected monuments.
PROTECTED AREAS
19. Restrictions on enjoyment of property rights in protected areas.
20. Power to acquire a protected area.

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PROHIBITED AND REGULATED AREAS

SECTIONS
20A. Declaration of prohibited area and carrying out public work or other works in prohibited
area.
20B. Declaration of regulated area in respect of every protected monument.
20C. Application for repair or renovation in prohibited area, or construction or re-construction or
repair or renovation in regulated area.
GRANT OF PERMISSION BY COMPETENT AUTHORITY
20D. Grant of permission by competent authority within regulated area.
20E. Heritage bye-laws.
NATIONAL MONUMENTS AUTHORITY
20F. Constitution of National Monuments Authority.
20G. Selection Committee for selection of members of Authority.
20H. Salary, allowances and meetings of Authority.
20-I. Functions and powers of Authority.
20J. Removal of Chairperson and members.
20K. Restriction on future employment by Chairperson and members.
20L. Power of Central Government to issue directions to Authority.
20M. Power of Central Government to issue directions to competent authority.
20N. Power of Central Government to supersede Authority.
20-O. Bar of jurisdiction of civil court.
20P. Annual report.
20Q. Power to call for information.
ARCHAEOLOGICAL EXCAVATIONS
21. Excavations in protected areas.
22. Excavations in areas other than protected areas.
23. Compulsory purchase of antiquities, etc., discovered during excavation operations.
24. Excavations, etc., for archaeological purposes.
PROTECTION OF ANTIQUITIES
25. Power of Central Government to control moving of antiquities.
26. Purchase of antiquities by Central Government.
PRINCIPLES OF COMPENSATION
27. Compensation for loss or damage.
28. Assessment of market value or compensation.
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MISCELLANEOUS
SECTIONS
29. Delegation of powers.
30. Penalties.
30A. Punishment for construction, etc., in prohibited area.
30B. Punishment for construction, etc., in regulated area.
30C. Offences by officers of Government.
31. Jurisdiction to try offences.
32. Certain offences to be cognizable.
33. Special provision regarding fine.
34. Recovery of amounts due to the Government.
35. Ancient monuments, etc., which have ceased to be of national importance.
35A. Obligation to survey the protected prohibited area and regulated areas.
35B. Identification of unauthorised constructions on or after 16th June, 1992.
36. Power to correct mistakes, etc.
37. Protection of action taken under the Act.
38. Power to make rule.
39. Repeals and savings.

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THE ANCIENT MONUMENTS AND ARCHAEOLOGICAL SITES

AND REMAINS ACT, 1958
ACT NO. 24 OF 19581
[28th August, 1958.]

An Act to provide for the preservation of ancient and historical monuments and
archaeological sites and remains of national importance, for the regulation of
archaeological excavations and for the protection of sculptures, carvings and other like
objects.
BE it enacted by Parliament in the Ninth Year of the Republic of India as follows:―
PRELIMINARY
1. Short title, extent and commencement.―(1) This Act may be called the Ancient Monuments
and Archaeological Sites and Remains Act, 1958.
2
[(2) It extends to the whole of India.]
(3) It shall come into force on such date3 as the Central Government may, by notification in the
Official Gazette, appoint.
2. Definitions.―In this Act, unless the context otherwise requires,―
(a) “ancient monument” means any structure, erection or monument, or any tumulus or place
of interment, or any cave, rock-sculpture, inscription or monolith, which is of historical,
archaeological or artistic interest and which has been in existence for not less than one hundred
years, and includes―
(i) the remains of an ancient monument,
(ii) the site of an ancient monument,
(iii) such portion of land adjoining the site of an ancient monument as may be required for
fencing or covering in or otherwise preserving such monument, and
(iv) the means of access to, and convenient inspection of, an ancient monument;
(b) “antiquity” includes―
(i) any coin, sculpture, manuscript, epigraph, or other work of art or craftsmanship,
(ii) any article, object or thing detached from a building or cave,
(iii) any article, object or thing illustrative of science, art, crafts, literature, religion,
customs, morals or politics in bygone ages,
(iv) any article, object or thing of historical interest, and

1. Extended to Goa, Daman and Diu with modifications by Reg. 12 of 1962, S. 3 and Sch. (w.e.f. 22-11-1962). Extended to
Dadra and Nagar Haveli by Reg. 6 of 1963, s. 2 and Sch. I (w.e.f. 11-7-1965) and Pondicherry by Reg. 7 of 1963, s. 3 and
Sch. I (w.e.f. 1-10-1963).
2. Subs. by Act 52 of 1972, s. 33, for sub-section (2) (w.e.f. 5-4-1976).
3. 15th October, 1959, vide notification No. S. O. 2307, dated 15th October, 1959, see Gazette of India, Extraordinary,
Part II, sec. 3(ii).

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(v) any article, object or thing declared by the Central Government, by notification in the
Official Gazette, to be an antiquity for the purposes of this Act,
which has been in existence for not less than one hundred years;
(c) “archaeological officer” means an officer of the Department of Archaeology of the
Government of India not lower in rank than Assistant Superintendent of Archaeology;
(d) “archaeological site and remains” means any area which contains or is reasonably
believed to contain ruins or relics of historical or archaeological importance which have been in
existence for not less than one hundred years, and includes―
(i) such portion of land adjoining the area as may be required for fencing or covering in or
otherwise preserving it, and
(ii) the means of access to, and convenient inspection of, the area;
1
[(da) “Authority” means the National Monuments Authority constituted under section 20F;
(db) “competent authority” means an officer not below the rank of Director of archaeology or
Commissioner of archaeology of the Central or State Government or equivalent rank, specified,
by notification in the Official Gazette, as the competent authority by the Central Government to
perform functions under this Act:
Provided that the Central Government may, by notification in the Official Gazette, specify
different competent authorities for the purpose of sections 20C, 20D and 20E;
(dc) “construction” means any erection of a structure or a building, including any addition or
extension thereto either vertically or horizontally, but does not include any re-construction, repair
and renovation of an existing structure or building, or, construction, maintenance and cleansing of
drains and drainage works and of public latrines, urinals and similar conveniences, or, the
construction and maintenance of works meant for providing supply of water for public, or, the
construction or maintenance, extension, management for supply and distribution of electricity to
the public or provision for similar facilities for public;]
(e) “Director-General” means the Director-General of Archaeology, and includes any officer
authorised by the Central Government to perform the duties of the Director-General;
(f) “maintain”, with its grammatical variations and cognate expressions, includes the fencing,
covering in, repairing, restoring and cleansing of a protected monument, and the doing of any act
which may be necessary for the purpose of preserving a protected monument or of securing
convenient access thereto;
(g) “owner” includes―
(i) a joint owner invested with powers of management on behalf of himself and other joint
owners and the successor-in-title of any such owner; and
(ii) any manager or trustee exercising powers of management and the successor-in-office
of any such manager or trustee;
(h) “prescribed” means prescribed by rules made under this Act;
[(ha) “prohibited area” means any area specified or declared to be a prohibited area under
1

section 20A;]

1. Ins. by Act 10 of 2010, s. 2 (w.e.f. 16-6-1992).

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 21

(i) “protected area” means any archaeological site and remains which is declared to be of
national importance by or under this Act;
(j) “protected monument” means an ancient monument which is declared to be of national
importance by or under this Act;
[(k) “re-construction” means any erection of a structure or building to its pre-existing
1

structure, having the same horizontal and vertical limits;

(l) “regulated area” means any area specified or declared under section 20B;
(m) “repair and renovation” means alterations to a pre-existing structure or building, but shall
not include construction or re-construction.]
2
[2A. [Construction of references to any law not in force in the State of Jammu and
Kashmir*.]―Omitted by the Jammu and Kashmir Reorganization (Adaptation of Central Laws)
Order, 2020, vide notification No. S.O. 1123(E) dated (18-3-2020).]
ANCIENT MONUMENTS AND ARCHAEOLOGICAL SITES AND REMAINS OF NATIONAL IMPORTANCE
3. Certain ancient monuments, etc., deemed to be of national importance.―All ancient and
historical monuments and all archaeological sites and remains which have been declared by
the Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of
National Importance) Act, 1951 (71 of 1951), or by section 126 of the States Reorganisation
Act, 1956 (37 of 1956), to be of national importance shall be deemed to be ancient and historical
monuments or archaeological sites and remains declared to be of national importance for the purposes
of this Act.
4. Power of Central Government to declare ancient monuments, etc., to be of national
importance.―(1) Where the Central Government is of opinion that any ancient monument or
archaeological site and remains not included in section 3 is of national importance, it may, by
notification in the Official Gazette, give two months’ notice of its intention to declare such ancient
monument or archaeological site and remains to be of national importance; and a copy of every such
notification shall be affixed in a conspicuous place near the monument or site and remains, as the case
may be.
(2) Any person interested in any such ancient monument or archaeological site and remains may,
within two months after the issue of the notification, object to the declaration of the monument, or the
archaeological site and remains, to be of national importance.
(3) On the expiry of the said period of two months, the Central Government may, after
considering the objections, if any, received by it, declare by notification in the Official Gazette, the
ancient monument or the archaeological site and remains, as the case may be, to be of national
importance.
(4) A notification published under sub-section (3) shall, unless and until it is withdrawn, be
conclusive evidence of the fact that the ancient monument or the archaeological site and remains to
which it relates is of national importance for the purposes of this Act.

1. Ins. by Act 10 of 2010, s. 2 (w.e.f. 16-6-1992).

2. Ins. by Act 52 of 1972, s. 33 (w.e.f. 5-4-1976).
*. Vide notification No. S.O. 3912(E), dated 30th October, 2019, this Act is made applicable to the Union territory of Jammu
and Kashmir and the Union territory of Ladakh.

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1
[4A. Categorisation and classification in respect of ancient monuments or archaeological
sites and remains declared as of national importance under sections 3 and 4.―(1) The Central
Government shall, on the recommendation of the Authority, prescribe categories in respect
of ancient monuments or archaeological sites and remains declared as of national importance under
sections 3 and 4, and while prescribing such categories it shall have regard to the historical,
archaeological and architectural value and such other factors as may be relevant for the purpose of
such categorisation.
(2) The Central Government shall, on the recommendation of the Authority, classify all the
ancient monuments or archaeological sites and remains declared as of national importance under
sections 3 and 4, in accordance with the categories prescribed under sub-section (1) and thereafter
make the same available to the public and exhibit the same on its website and also in such other
manner as it may deem fit.]
PROTECTED MONUMENTS
5. Acquisition of rights in a protected monument.―(1) The Director-General may, with the
sanction of the Central Government, purchase, or take a lease of, or accept a gift or bequest of, any
protected monument.
(2) Where a protected monument is without an owner, the Director-General may, by notification
in the Official Gazette, assume the guardianship of the monument.
(3) The owner of any protected monument may, by written instrument, constitute the
Director-General the guardian of the monument, and the Director-General may, with the sanction of
the Central Government, accept such guardianship.
(4) When the Director-General has accepted the guardianship of a monument under
sub-section (3), the owner shall, except as expressly provided in this Act, have the same estate, right,
title and interest in and to the monument as if the Director-General had not been constituted a
guardian thereof.
(5) When the Director-General has accepted the guardianship of a monument under
sub-section (3), the provisions of this Act relating to agreements executed under section 6 shall apply
to the written to agreements executed under the said sub-section.
(6) Nothing in this section shall affect the use of any protected monument for customary religious
observances.
6. Preservation of protected monument by agreement.―(1) The Collector, when so directed
by the Central Government, shall propose to the owner of a protected monument to enter into an
agreement with the Central Government within a specified period for the maintenance of the
monument.
(2) An agreement under this section may provide for all or any of the following matters,
namely:―
(a) the maintenance of the monument;
(b) the custody of the monument and the duties of any person who may be employed to
watch it;

1. Ins. by Act 10 of 2010, s. 3 (w.e.f. 16-6-1992).

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 23

(c) the restriction of the owner’s right―

(i) to use the monument for any purpose,
(ii) to charge any fee for entry into, or inspection of, the monument,
(iii) to destroy, remove, alter or deface the monument, or
(iv) to build on or near the site of the monument;
(d) the facilities of access to be permitted to the public or any section thereof or to
archaeological officers or to persons deputed by the owner or any archaeological officer or the
Collector to inspect or maintain the monument;
(e) the notice to be given to the Central Government in case the land on which the monument
is situated or any adjoining land is offered for sale by the owner, and the right to be reserved to
the Central Government to purchase such land, or any specified portion of such land, at its market
value;
(f) the payment of any expenses incurred by the owner or by the Central Government in
connection with the maintenance of the monument;
(g) the proprietary or other rights which are to vest in the Central Government in respect of
the monument when any expenses are incurred by the Central Government in connection with the
maintenance of the monument;
(h) the appointment of an authority to decide any dispute arising out of the agreement; and
(i) any matter connected with the maintenance of the monument which is a proper subject of
agreement between the owner and the Central Government.
(3) The Central Government or the owner may, at any time after the expiration of three years from
the date of execution of an agreement under this section, terminate it on giving six months’ notice in
writing to the other party:
Provided that where the agreement is terminated by the owner, he shall pay to the Central
Government the expenses, if any, incurred by it on the maintenance of the monument during the five
years immediately preceding the termination of the agreement or, if the agreement has been in force
for a shorter period, during the period the agreement was in force.
(4) An agreement under this section shall be binding on any person claiming to be the owner of
the monument to which it relates, from, through or under a party by whom or on whose behalf the
agreement was executed.
7. Owners under disability or not in possession.―(1) If the owner of a protected monument is
unable, by reason of infancy or other disability, to act for himself, the son legally competent to act on
his behalf may exercise the powers conferred upon an owner by section 6.
(2) In the case of village property, the headman or other village officer exercising powers of
management over such property may exercise the powers conferred upon an owner by section 6.
(3) Nothing in this section shall be deemed to empower any person not being of the same religion
as the person on whose behalf he is acting to make or execute an agreement relating to a protected
monument which or any part of which is periodically used for the religious worship or observances of
that religion

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 24

8. Application of endowment to repair a protected monument.―(1) If any owner or other

person competent to enter into an agreement under section 6 for the maintenance of a protected
monument refuses or fails to enter into such an agreement, and if any endowment has been created for
the purpose of keeping such monument in repair or for that purpose among others, the Central
Government may institute a suit in the court of the district judge, or, if the estimated cost of repairing
the monument does not exceed one thousand rupees, may make an application to the district judge, for
the proper application of such endowment or part thereof.
(2) On the hearing of an application under sub-section (1), the district judge may summon and
examine the owner and any person whose evidence appears to him necessary and may pass an order
for the proper application of the endowment or of any part thereof, and any such order may be
executed as if it were a decree of a civil court.
9. Failure or refusal to enter into an agreement.―(1) If any owner or other person competent
to enter into an agreement under section 6 for the maintenance of a protected monument refuses or
fails to enter into such an agreement, the Central Government may make an order providing for all or
any of the matters specified in sub-section (2) of section 6 and such order shall be binding on the
owner or such other person and on every person claiming title to the monument from, through or
under, the owner or such other person.
(2) Where an order made under sub-section (1) provides that the monument shall be maintained
by the owner or other person competent to enter into an agreement, all reasonable expenses for the
maintenance of the monument shall be payable by the Central Government.
(3) No order under sub-section (1) shall be made unless the owner or other person has been given
an opportunity of making a representation in writing against the proposed order.
10. Power to make order prohibiting contravention of agreement under section 6.―(1) If the
Director-General apprehends that the owner or occupier of a protected monument intends to destroy,
remove, alter, deface, imperil or misuse the monument or to build on or near the site thereof in
contravention of the terms of an agreement under section 6, the Director-General may, after giving the
owner or occupier an opportunity of making a representation in writing, make an order prohibiting
any such contravention of the agreement:
Provided that no such opportunity may be given in any case where the Director-General, for
reasons to be recorded, is satisfied that it is not expedient or practicable to do so.
(2) Any person aggrieved by an order under this section may appeal to the Central Government
within such time and in such manner as may be prescribed and the decision of the Central
Government shall be final.
11. Enforcement of agreements.―(1) If an owner or other person who is bound by an agreement
for the maintenance of a monument under section 6 refuses or fails within such reasonable time as the
Director-General may fix, to do any act which in the opinion of the Director-General is necessary for
the maintenance of the monument, the Director-General may authorise any person to do any such act,
and the owner or other person shall be liable to pay the expenses of doing any such act or such portion
of the expenses as the owner may be liable to pay under the agreement.
(2) If any dispute arises regarding the amount of expenses payable by the owner or other person
under sub-section (1), it shall be referred to the Central Government whose decision shall be final.

9
 25

12. Purchasers at certain sales and persons claiming through owner bound by instrument
executed by owner.―Every person who purchases, at a sale for arrears of land revenue or any other
public demand, any land on which is situated a monument in respect of which any instrument has
been executed by the owner for the time being under section 5 or section 6, and every person claiming
any title to a monument from, through or under, an owner who executed any such instrument, shall be
bound by such instrument.
13. Acquisition of protected monuments.―If the Central Government apprehends
that a protected monument is in danger of being destroyed, injured, misused, or allowed to fall
into decay, it may acquire the protected monument under the provisions of the Land Acquisition
Act, 1894 (1 of 1894), as if the maintenance of the protected monument were a public purpose within
the meaning of that Act.
14. Maintenance of certain protected monuments.―(1) The Central Government shall
maintain every monument which has been acquired under section 13 or in respect of which any of the
rights mentioned in section 5 have been acquired.
(2) When the Director-General has assumed the guardianship of a monument under section 5, he
shall, for the purpose of maintaining such monument, have access to the monument at all reasonable
times, by himself and by his agents, subordinates and workmen, for the purpose of inspecting the
monument and for the purpose of bringing such materials and doing such acts as he may consider
necessary or desirable for the maintenance thereof.
15. Voluntary contributions.―The Director-General may receive voluntary contributions
towards the cost of maintaining a protected monument and may give orders as to the management and
application of any funds so received by him:
Provided that no contribution received under this section shall be applied to any purpose other
than the purpose for which it was contributed.
16. Protection of place of worship from misuse, pollution or desecration.―(1) A protected
monument maintained by the Central Government under this Act which is a place of worship or
shrine shall not be used for any purpose inconsistent with its character.
(2) Where the Central Government has acquired a protected monument under section 13, or where
the Director-General has purchased, or taken a lease or accepted a gift or bequest or assumed
guardianship of, a protected monument under section 5, and such monument or any part thereof is
used for religious worship or observances by any community, the Collector shall make due provision
for the protection of such monument or part thereof, from pollution or desecration―
(a) by prohibiting the entry therein, except in accordance with the conditions prescribed with
the concurrence of the persons, if any, in religious charge of the said monument or part thereof, of
any person not entitled so to enter by the religious usages of the community by which the
monument or part thereof is used, or
(b) by taking such other action as he may think necessary in this behalf.
17. Relinquishment of Government rights in a monument.―With the sanction of the Central
Government, the Director-General may,―
(a) where rights have been acquired by the Director-General in respect of any monument
under this Act by virtue of any sale, lease, gift or will, relinquish, by notification in the Official
Gazette, the rights so acquired to the person who would for the time being be the owner of the
monument if such rights had not been acquired; or

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(b) relinquish any guardianship of a monument which he has assumed under this Act.
18. Right of access to protected monuments.―Subject to any rules made under this Act, the
public shall have a right of access to any protected monument.
PROTECTED AREAS
19. Restictions on enjoyment of property rights in protected areas.―(1) No person, including
the owner or occupier of a protected area, shall construct any building within the protected area or
carry on any mining, quarrying, excavating, blasting or any operation of a like nature in such area, or
utilise such area or any part thereof in any other manner without the permission of the Central
Government:
Provided that nothing in this sub-section shall be deemed to prohibit the use of any such area or
part thereof for purposes of cultivation if such cultivation does not involve the digging of not more
than one foot of soil from the surface.
(2) The Central Government may, by order, direct that any building constructed by any person
within a protected area in contravention of the provisions of sub-section (1) shall be removed within a
specified period and, if the person refuses or fails to comply with the order, the Collector may cause
the building to be removed and the person shall be liable to pay the cost of such removal.
20. Power to acquire a protected area.―If the Central Government is of opinion that any
protected area contains an ancient monument or antiquities of national interest and value, it may
acquire such area under the provisions of the Land Acquisition Act, 1894 (1 of 1894), as if the
acquisition were for a public purpose within the meaning of that Act.
1
[PROHIBITED AND REGULATED AREAS
20A. Declaration of prohibited area and carrying out public work or other works in
prohibited area.―Every area, beginning at the limit of the protected area or the protected monument,
as the case may be, and extending to a distance of one hundred metres in all directions shall be the
prohibited area in respect of such protected area or protected monument:
Provided that the Central Government may, on the recommendation of the Authority, by
notification in the Official Gazette, specify an area more than one hundred metres to be the prohibited
area having regard to the classification of any protected monument or protected area, as the case may
be, under section 4A.
(2) Save as otherwise provided in section 20C, no person, other than an archaeological officer,
shall carry out any construction in any prohibited area.
(3) In a case where the Central Government or the Director-General, as the case may be, is
satisfied that―
(a) it is necessary or expedient for carrying out such public work or any project essential to
the public; or
(b) such other work or project, in its opinion, shall not have any substantial adverse impact on
the preservation, safety, security of, or, access to, the monument or its immediate surrounding,

1. Ins. by Act 10 of 2010, s. 4 (w.e.f. 16-6-1992).

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 27

it or he may, notwithstanding anything contained in sub-section (2), in exceptional cases and having
regard to the public interest, by order and for reasons to be recorded in writing, permit, such public
work or project essential to the public or other constructions, to be carried out in a prohibited area:
Provided that any area near any protected monument or its adjoining area declared, during the
period beginning on or after the 16th day of June, 1992 but ending before the date on which the
Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Bill, 2010,
receives the assent of the President, as a prohibited area in respect of such protected monument, shall
be deemed to be the prohibited area declared in respect of that protected monument in accordance
with the provisions of this Act and any permission or licence granted by the Central Government or
the Director-General, as the case may be, for the construction within the prohibited area on the basis
of the recommendation of the Expert Advisory Committee, shall be deemed to have been validly
granted in accordance with the provisions of this Act, as if this section had been in force at all
material times:
Provided further that nothing contained in the first proviso shall apply to any permission granted,
subsequent to the completion of construction or re-construction of any building or structure in any
prohibited area in pursuance of the notification of the Government of India in the Department of
Culture (Archaeological Survey of India) number S.O. 1764, dated the 16th June, 1992 issued under
rule 34 of the Ancient Monuments and Archaeological Sites and Remains Rules, 1959, or, without
having obtained the recommendations of the Committee constituted in pursuance of the order of the
Government of India number 24/22/2006-M, dated the 20th July, 2006 (subsequently referred to as
the Expert Advisory Committee in orders dated the 27th August, 2008 and the 5th May, 2009).]
1
[(4) No permission, referred to in sub-section (3), including carrying out any public work or
project essential to the public or other constructions, shall be granted in any prohibited area on and
after the date on which the Ancient Monuments and Archaeological Sites and Remains (Amendment
and Validation) Bill, 2010 receives the assent of the President.]
2
[20B. Declaration of regulated area in respect of every protected monument.―Every area,
beginning at the limit of prohibited area in respect of every ancient monument and archaeological site
and remains, declared as of national importance under sections 3 and 4 and extending to a distance of
two hundred metres in all directions shall be the regulated area in respect of every ancient monument
and archaeological site and remains:
Provided that the Central Government may, by notification in the Official Gazette, specify an area
more than two hundred metres to be the regulated area having regard to the classification of any
protected monument or protected area, as the case may be, under section 4A:
Provided further that any area near any protected monument or its adjoining area declared, during
the period beginning on or after the 16th day of June, 1992 but ending before the date on which the
Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Bill, 2010,
receives the assent of the President, as a regulated area in respect of such protected monument, shall
be deemed to be the regulated area declared in respect of that protected monument in accordance with
the provisions of this Act and any permission or licence granted for construction in such regulated
area shall, be deemed to have been validly granted in accordance with the provisions of this Act, as if
this section had been in force at all material times.]

1. Ins. by Act 10 of 2010, s. 5 (w.e.f. 16-6-1992).

2. Ins. by s. 6, ibid. (w.e.f. 16-6-1992).
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1
[20C. Application for repair or renovation in prohibited area, or construction or
re-construction or repair or renovation in regulated area.―(1) Any person, who owns any
building or structure, which existed in a prohibited area before the 16th day of June, 1992, or, which
had been subsequently constructed with the approval of the Director-General and desires to carry out
any repair or renovation of such building or structure, may make an application to the competent
authority for carrying out such repair or renovation, as the case may be.
(2) Any person, who owns or possesses any building or structure or land in any regulated area,
and desires to carry out any construction or re-construction or repair or renovation of such building or
structure on such land, as the case may be, may make an application to the competent authority for
carrying out construction or re-construction or repair or renovation, as the case may be.
GRANT OF PERMISSION BY COMPETENT AUTHORITY
20D. Grant of permission by competent authority within regulated area.―(1) Every
application for grant of permission under section 20C of this Act shall be made to the competent
authority in such manner as may be prescribed.
(2) The competent authority shall, within fifteen days of the receipt of the application, forward the
same to the Authority to consider and intimate impact of such construction (including the impact of
large-scale development project, public project and project essential to the public) having regard to
the heritage bye-laws relating to the concerned protected monument or protected area, as the case
may be:
Provided that the Central Government may prescribe the category of applications in respect of
which the permission may be granted under this sub-section and the application which shall be
referred to the Authority for its recommendations.
(3) The Authority shall, within two months from the date of receipt of application under
sub-section (2), intimate to the competent authority impact of such construction (including the impact
of large-scale development project, public project and project essential to the public).
(4) The competent authority shall, within one month of the receipt of intimation from the
Authority under sub-section (3), either grant permission or refuse the same as so recommended by the
Authority.
(5) The recommendations of the Authority shall be final.
(6) In case the competent authority refuses to grant permission under this section, it shall, by order
in writing, after giving an opportunity to the concerned person, intimate such refusal within three
months from the date of receipt of the application to the applicant, the Central Government and the
Authority.
(7) If the competent authority, after grant of the permission under sub-section (4) and during the
carrying out of the repair or renovation work or re-construction of building or construction referred to
in that sub-section, is of the opinion (on the basis of material in his possession or otherwise) that such
repair or renovation work or re-construction of building or construction is likely to have an adverse
impact on the preservation, safety, security or access to the monument considerably, it may refer the
same to the Authority for its recommendations and if so recommended, withdraw the permission
granted under sub-section (4) if so required:

1. Ins. by Act 10 of 2010, s. 7 (w.e.f. 16-6-1992).

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Provided that the competent authority may, in exceptional cases, with the approval of the
Authority grant permission to the applicant referred to in sub-section (2) of section 20C until the
heritage bye-laws have been prepared under sub-section (1) of section 20E and published under
sub-section (7) of that section.
(8) The Central Government, or the Director-General, as the case may be, shall exhibit, on their
website, all the permissions granted or refused under this Act.
20E. Heritage bye-laws.―(1) The competent authority, in consultation with Indian
National Trust for Arts and Cultural Heritage, being a trust registered under the Indian Trusts
Act, 1882 (2 of 1882), or such other expert heritage bodies as may be notified by the Central
Government, shall prepare heritage bye-laws in respect of each protected monument and protected
area.
(2) The heritage bye-laws referred to in sub-section (1) shall, in addition to such matters as may
be prescribed, include matters relating to heritage controls such as elevations, facades, drainage
systems, roads and service infrastructure (including electric poles, water and sewer pipelines).
(3) The Central Government shall, by rules, specify the manner of preparation of detailed site
plans in respect of each protected area or protected monument or prohibited area or regulated area, the
time within which such heritage bye-laws shall be prepared and particulars to be included in each
such heritage bye-laws.
(4) The competent authority for the purpose of preparation of detailed site plans and heritage
bye-laws may appoint such number of experts or consultants as it may deem fit.
(5) A copy of each of the heritage bye-laws prepared under sub-section (1) shall be forwarded to
the Authority for its approval.
(6) A copy of the heritage bye-laws as approved by the Authority under sub-section (5) shall be
laid before each House of Parliament.
(7) Each heritage bye-laws shall, be made available by the competent authority to the public, by
exhibiting the same on its website and also in such other manner as it may deem fit, immediately after
laying the same before each House of Parliament.
NATIONAL MONUMENTS AUTHORITY
20F. Constitution of National Monuments Authority.―(1) The Central Government shall, by
notification in the Official Gazette, constitute an Authority to be called as the National Monuments
Authority.
(2) The Authority shall consist of,―
(a) a Chairperson, on whole-time basis, to be appointed by the President, having proven
experience and expertise in the fields of archaeology, country and town planning, architecture,
heritage, conservation-architecture or law;
(b) such number of members not exceeding five whole-time members and five part-time
members to be appointed, on the recommendation of the Selection Committee referred to in
section 20G, by the Central Government, having proven experience and expertise in the fields of
archaeology, country and town planning, architecture, heritage, conservation-architecture or law;
(c) the Director-General as member, ex officio.

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(3) The tenure of the whole-time Chairperson or every whole-time member and every part-time
member, of the Authority shall be three years from the date on which he assumes office as such and
shall not be eligible for re-appointment:
Provided that, save as otherwise provided in clause (c) of sub-section (2), any person who has
held any post in the Archaeological Survey of India or in the Ministry of Culture of the Government
of India or a State Government or has not been found fit to be considered for being appointed to any
such post shall, not be eligible to be appointed as the Chairperson or a member of the Authority:
Provided further that any person, who had either been granted a permission or licence or refused
any such permission or refused grant of a licence or any person or any of his relative having any
interest in a prohibited area or a regulated area shall not be eligible to be appointed as a Chairperson
or member.
Explanation.―For the purposes of this section, “relative” means―
(i) spouse of the Chairperson or member of the Authority;
(ii) brother or sister of the Chairperson or member of the Authority;
(iii) brother or sister of the spouse of the Chairperson or member of the Authority;
(iv) brother or sister of either of the parents of the Chairperson or member of the Authority;
(v) any lineal ascendant or descendant of the Chairperson or member of the Authority;
(vi) any lineal ascendant or descendant of the spouse of the Chairperson or member of the
Authority;
(vii) spouse of the person referred to in clauses (ii) to (vi);
(4) An officer, not below the rank of Joint Secretary to the Government of India, shall be the
Member Secretary of the Authority.
(5) The Central Government shall provide such number of officers and other employees as may be
necessary for discharge of functions by the Authority under this Act.
20G. Selection Committee for selection of members of Authority.―(1) Every whole-time
member and every part-time member of the Authority shall be selected by a Selection Committee
consisting of the following persons, namely:―
(a) Cabinet Secretary―Chairperson, ex officio;
(b) Secretary in the Ministry of Culture―member, ex officio;
(c) Secretary in the Ministry of Urban development―member, ex officio;
(d) three experts, having proven experience and expertise in the fields of archaeology,
architecture, heritage or conservation-architecture to be nominated by the Central Government.
(2) The Selection Committee referred to in sub-section (1) shall regulate its own procedure for the
purposes of selecting whole-time members and part-time members of the Authority.
20H. Salary, allowances and meetings of Authority.―(1) The salaries and allowances payable
to the whole-time Chairperson and whole-time members, and the other terms and conditions of their
service or fees or allowances payable to the part-time members, of the Authority shall be such as may
be prescribed:

15
 31

Provided that neither the salary and allowances nor the other terms and conditions of service of
the whole-time Chairperson and whole-time members shall be varied to their disadvantage after their
appointment.
(2) The Authority shall regulate its own procedure for the purposes of holding its meetings
(including quorum of such meetings) and granting permissions under this Act.
(3) All the decisions of the Authority shall be published in such manner as it may decide and also
on its own website and on the website of the Central Government.
20-I. Functions and powers of Authority.―(1) The Authority shall exercise or discharge the
following powers or functions, namely:―
(a) make recommendations to the Central Government for grading and classifying protected
monuments and protected areas declared as of national importance under sections 3 and 4, before
the commencement of the Ancient Monuments and Archaeological Sites and Remains
(Amendment and Validation) Act, 2010 (10 of 2010);
(b) make recommendations to the Central Government for grading and classifying protected
monuments and protected areas which may be declared after the commencement of the
Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation)
Act, 2010 (10 of 2010), as of national importance under section 4;
(c) oversee the working of the competent authorities;.
(d) to suggest measures for implementation of the provisions of this Act;
(e) to consider the impact of large-scale developmental projects, including public projects and
projects essential to the public which may be proposed in the regulated areas and make
recommendations in respect thereof to the competent authority;
(f) to make recommendations to the competent authority for grant of permission.
(2) The Authority shall, for the purpose of discharging functions under this Act, have the same
powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying
a suit in respect of the following matters, namely:―
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) any other matter which may be prescribed.
20J. Removal of Chairperson and members.―(1) Notwithstanding anything contained in
sub-section (3) of section 20F, the President in the case of the Chairperson and the Central
Government in the case of whole-time member and part-time member may, by order, remove from
office, the Chairperson or any such member of the Authority, if he―
(a) has been adjudged an insolvent; or
(b) has been convicted of an offence which, in the opinion of the Central Government,
involves moral turpitude; or
(c) has become physically or mentally incapable of acting as Chairperson or member; or
(d) has acquired such financial or other interests as is likely to affect prejudicially his
functions; or

16
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(e) has so abused his position as to render his continuance in office prejudicial to the public
interest.
(2) The Chairperson or any member of the Authority shall not be removed under clauses (d)
and (e) of sub-section (1) unless he has been given a reasonable opportunity of being heard in the
matter.
20K. Restriction on future employment by Chairperson and members.―On ceasing to hold
office, the Chairperson or whole-time member of the Authority, as the case may be, shall, subject to
the provisions of this Act, be ineligible, for a period of five years from the date on which they cease to
hold office, for further employment (including as consultant or expert or otherwise) in any institution,
agency or organisation of any nature mainly dealing with archaeology, country and town planning,
architecture, heritage and conservation-architecture or whose matters had been before the Chairperson
or such member.
20L. Power of Central Government to issue directions to Authority.―(1) Without prejudice
to the foregoing provisions of this Act, the Authority shall, in exercise of its powers or the discharge
of its functions under this Act, be bound by such directions on question of policy, other than those
relating to technical and administrative matters, as the Central Government may give in writing to it
from time to time:
Provided that the Authority shall, as far as practicable, be given an opportunity to express its
views before any direction is given under this sub-section.
(2) The decision of the Central Government, whether a question is one of policy or not, shall be
final.
20M. Power of Central Government to issue directions to competent authority.―Without
prejudice to the foregoing provisions of this Act, the competent authority shall, in exercise of its
powers or the discharge of its functions under this Act, be bound by such directions, as the Central
Government may give in writing to it from time to time.
20N. Power of Central Government to supersede Authority.―(1) If, at any time the Central
Government is of the opinion,―
(a) that, on account of circumstances beyond the control of the Authority, it is unable to
discharge the functions or perform the duties imposed on it by or under the provisions of this
Act; or
(b) that the Authority has persistently defaulted in complying with any direction given by the
Central Government under this Act or in the discharge of the functions or performance of the
duties imposed on it by or under the provisions of this Act and as a result of such default the
financial position of the Authority or the administration of the Authority has suffered; or
(c) that circumstances exist which render it necessary in the public interest so to do,
the Central Government may, by notification in the Official Gazette, supersede the Authority for such
period, not exceeding six months, as may be specified in the notification and appoint a person or
persons as the President may direct to exercise powers and discharge functions under this Act:
Provided that before issuing any such notification, the Central Government shall give a reasonable
opportunity to the Authority to make representations against the proposed supersession and shall
consider the representations, if any, of the Authority.

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(2) Upon the publication of a notification under sub-section (1) superseding the Authority,―
(a) the Chairperson and all other whole-time members and part-time members shall, as from
the date of supersession, vacate their offices as such;
(b) all the powers, functions and duties which may, by or under the provisions of this Act, be
exercised or discharged by or on behalf of the Authority shall, until the Authority is reconstituted
under sub-section (3), be exercised and discharged by the person or persons referred to in
sub-section (1); and
(c) all properties owned or controlled by the Authority shall, until the Authority is
reconstituted under sub-section (3), vest in the Central Government.
(3) On or before the expiration of the period of supersession specified in the notification issued
under sub-section (1), the Central Government shall reconstitute the Authority by a fresh appointment
of its Chairperson and other whole-time members and part-time members and in such case any person
who had vacated his office under clause (a) of sub-section (2) shall not be deemed to be disqualified,
subject to the provisions of sub-section (3) of section 20F for reappointment for the remaining period.
(4) The Central Government shall cause a copy of the notification issued under sub-section (1)
and a full report of any action taken under this section and the circumstances leading to such action to
be laid before each House of Parliament at the earliest.
20-O. Bar of jurisdiction of civil court.―No civil court shall have jurisdiction in respect of any
matter which the Authority is empowered by or under this Act to determine and no injunction shall be
granted by any court or other authority in respect of any action taken or to be taken in pursuance of
any power conferred by or under this Act.
20P. Annual report.―(1) The Authority shall prepare once in every year, in such form and at
such time as may be prescribed by the Central Government, an annual report giving full description of
all the activities of the Authority for the previous year.
(2) A copy of the report received under sub-section (1) shall be laid, as soon as may be after it is
received, before each House of Parliament.
20Q. Power to call for information.―Where the Central Government considers it expedient so
to do, it may, by order in writing call upon the Authority or the competent authority, as the case may
be, to furnish in writing such information, in such form and manner as may be prescribed, relating to
its affairs as the Central Government may require.]
ARCHAEOLOGICAL EXCAVATIONS
21. Excavations in protected areas.―An archaeological officer or an officer authorised by him
in this behalf or any person holding a licence granted in this behalf under this Act (hereinafter referred
to as the licensee) may, after giving notice in writing to the Collector and the owner, enter upon and
make excavations in any protected area.
22. Excavations in areas other than protected areas.―Where an archaeological officer has
reason to believe that any area not being a protected area contains ruins or relies of historical or
archaeological importance, he or an officer authorised by him in this behalf may, after giving notice in
writing to the Collector and the owner, enter upon and make excavations in the area.

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23. Compulsory purchase of antiquities, etc., discovered during excavation

operations.―(1) Where, as a result of any excavations made in any area under section 21 or
section 22, any antiquities are discovered, the archaeological officer or the licensee, as the case may
be, shall,―
(a) as soon as practicable, examine such antiquities and submit a report to the Central
Government in such manner and containing such particulars as may be prescribed;
(b) at the conclusion of the excavation operations, give notice in writing to the owner of the
land from which such antiquities have been discovered, of the nature of such antiquities.
(2) Until an order for the 1[compulsory acquisition] of any such antiquities is made under
sub-section (3), the archaeological officer or the licensee, as the case may be, shall keep them in such
safe custody as he may deem fit.
(3) On receipt of a report under sub-section (1), the Central Government may make an order for
2
the [compulsory acquisition of any such antiquities].
(4) When an order for the 1[compulsory acquisition] of any antiquities is made under
sub-section (3), such antiquities shall rest in the Central Government with effect from the date of the
order.
24. Excavations, etc., for archaeological purposes.―No State Government shall undertake or
authorise any person to undertake any excavation or other like operation for archaeological purposes
in any area which is not a protected area except with the previous approval of the Central Government
and in accordance with such rules or directions, if any, as the Central Government may make or give
in this behalf.
PROTECTION OF ANTIQUITIES
25. Power of Central Government to control moving of antiquities.―(1) If the Central
Government considers that any antiquities or class of antiquities ought not to be moved from the place
where they are without the sanction of the Central Government, the Central Government may, by
notification in the Official Gazette, direct that any such antiquity or any class of such antiquities shall
not be moved except with the written permission of the Director-General.
(2) Every application for permission under sub-section (1) shall be in such form and contain such
particulars as may be prescribed.
(3) Any person aggrieved by an order refusing permission may appeal to the Central Government
whose decision shall be final.
26. Purchase of antiquities by Central Government.―(1) If the Central Government
apprehends that any antiquity mentioned in a notification issued under sub-section (1) of section 25 is
in danger of being destroyed, removed, injured, misused or allowed to fall into decay or is of opinion
that, by reason of its historical or archaeological importance, it is desirable to preserve such antiquity
in a public place, the Central Government may make an order for the 3[compulsory acquisition of such
antiquity] and the Collector shall thereupon give notice to the owner of the antiquity 4[to be acquired].

1. Subs. by Act 52 of 1972, s. 33, for “compulsory purchase” (w.e.f. 5-4-1976).

2. Subs. by s. 33, ibid., for “compulsory purchase of any such antiquities at their market value” (w.e.f. 5-4-1976).
3. Subs. by s. 33, ibid., for “compulsory purchase of such antiquity at its market value” (w.e.f. 5-4-1976).
4. Subs. by s. 33, ibid., for “to be purchased” (w.e.f. 5-4-1976).
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(2) Where a notice of 1[compulsory acquisition] is issued under sub-section (1) in respect of any
antiquity, such antiquity shall vest in the Central Government with effect from the date of the notice.
(3) The power of 1[compulsory acquisition] given by this section shall not extend to any image or
symbol actually used for bona fide religious observances.
PRINCIPLES OF COMPENSATION
27. Compensation for loss or damage.―Any owner or occupier of land who has sustained any
loss or damage or any diminution of profits from the land by reason of any entry on, or excavations in,
such land or the exercise of any other power conferred by this Act shall be paid compensation by the
Central Government for such loss, damage or diminution of profits.
28. Assessment of market value or compensation.―(1) The market value of any property
which the Central Government is empowered to purchase at such value under this Act or the
compensation to be paid by the Central Government in respect of anything done under this Act
shall, where any dispute arises in respect of such market value or compensation, be ascertained in
the manner provided in sections 3, 5, 8 to 34, 45 to 47, 51 and 52 of the Land Acquisition
Act, 1894 (1 of 1894), so far as they can be made applicable:
Provided that, when making an enquiry under the said Land Acquisition Act, the Collector shall
be assisted by two assessors, one of whom shall be a competent person nominated by the Central
Government and one a person nominated by the owner, or, in case the owner fails to nominate an
assessor within such reasonable time as may be fixed by the Collector in this behalf, by the Collector.
2
[(2) For every antiquity in respect of which an order for compulsory acquisition has been
made under sub-section (3) of section 23 or under sub-section (1) of section 26, there shall be paid
compensation and the provisions of sections 20 and 22 of the Antiquities and Art Treasures
Act, 1972 (52 of 1972) shall, so far as may be, apply in relation to the determination and payment of
such compensation as they apply in relation to the determination and payment of compensation for
any antiquity or art treasure compulsorily acquired under section 19 of that Act.]
MISCELLANEOUS
29. Delegation of powers.―The Central Government may, by notification in the Official
Gazette, direct that any powers conferred on it by or under this Act shall, subject to such conditions as
may be specified in the direction, be exercisable also by―
(a) such officer or authority subordinate to the Central Government, or
(b) such State Government or such officer or authority subordinate to the State Government,
as may be specified in the direction.
30. Penalties.―(1) Whoever—
(i) destroys, removes, injures, alters, defaces, imperils or misuses a protected monument, or
(ii) being the owner or occupier of a protected monument, contravenes an order made under
sub-section (1) of section 9 or under sub-section (1) of section 10, or
(iii) removes from a protected monument any sculpture carving, image, bas-relief, inscription,
or other like object, or
(iv) does any act in contravention of sub-section (1) of section 19,

1. Subs. by Act 52 of 1972, s. 33, for “compulsory purchase” (w.e.f. 5-4-1976).

2. Subs. by s. 33, ibid., for sub-section (2) (w.e.f. 5-4-1976).
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shall be punishable with imprisonment which may extend to three months, or with 1[imprisonment
which may extend to two years], or with 2[fine which may extend to one lakh rupees], or with both.
(2) Any person who moves any antiquity in contravention of a notification issued under
sub-section (1) of section 25 shall be punishable with 3[imprisonment which may extend to two years
or with fine which may extend to one lakh rupees or with both]; and the court convicting a person of
any such contravention may by order direct such person to restore the antiquity to the place from
which it was moved.
4
[30A. Punishment for construction, etc., in prohibited area.―Whoever raises, on and after
the date on which the Ancient Monuments and Archaeological Sites and Remains (Amendment and
Validation) Bill, 2010, receives the assent of the President, any construction in the prohibited area,
shall be punishable with imprisonment not exceeding two years or with fine which may extend to one
lakh rupees or with both.
30B. Punishment for construction, etc., in regulated area.―Whoever raises, on and after the
date on which the Ancient Monuments and Archaeological Sites and Remains (Amendment and
Validation) Bill, 2010, receives the assent of the President, any construction in the regulated area
without the previous permission of the competent authority or in contravention of the permission
granted by the competent authority, shall be punishable with imprisonment not exceeding two years or
with fine which may extend to one lakh rupees or with both.
30C. Offences by officers of Government.―If any officer of the Central Government enters into
or acquiesces in any agreement to do, abstains from doing, permits, conceals or connives at any act or
thing whereby any construction or re-construction takes place in a prohibited area or regulated area,
he shall be punishable with imprisonment for a term which may extend to three years, or with fine, or
with both.]
31. Jurisdiction to try offences.―No court inferior to that of a presidency magistrate or a
magistrate of the first class shall try any offence under this Act.
32. Certain offences to be cognizable.―Notwithstanding anything contained in the Code of
Criminal Procedure, 1898 (5 of 1898), an offence under clause (i) or clause (iii) of sub-section (1)
of section 30, shall be deemed to be a cognizable offence within the meaning of that Code.
33. Special provision regarding fine.―Notwithstanding anything contained in section 32 of the
Code of Criminal Procedure, 1898 (5 of 1898), it shall be lawful for any magistrate of the first class
specially empowered by the State Government in this behalf and for any presidency magistrate to pass
a sentence of fine exceeding two thousand rupees on any person convicted of an offence which under
this Act is punishable with fine exceeding two thousand rupees.
34. Recovery of amounts due to the Government.―Any amount due to the Government from
any person under this Act may, on a certificate issued by the Director-General or an archaeological
officer authorised by him in this behalf be recovered in the same manner as an arrear of land revenue.

1. Subs. by Act 10 of 2010, s. 8, for “imprisonment which may extend to three months” (w.e.f. 16-6-1992).
2. Subs. by s. 8, ibid., for “fine which may extend to five thousand rupees” (w.e.f. 16-6-1992).
3. Subs. by s. 8, ibid., for “fine which may extend to five thousand rupees” (w.e.f. 16-6-1992).
4. Ins. by s. 9, ibid. (w.e.f. 16-6-1992).
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35. Ancient monuments, etc., which have ceased to be of national importance.―If the Central
Government is of opinion that any ancient and historical monument or archaeological site and remains
declared to be of national importance by or under this Act has ceased to be of national importance, it
may, by notification in the Official Gazette, declare that the ancient and historical monument or
archaeological site and remains, as the case may be, has ceased to be of national importance for the
purposes of this Act.
1
[35A. Obligation to survey the protected prohibited area and regulated areas.―(1) The
Director-General shall, within such time as may be specified by the Central Government, conduct a
survey or cause survey to be conducted in respect of all prohibited areas and regulated areas for the
purpose of detailed site plans.
(2) A report in respect of such survey referred to in sub-section (1) shall be forwarded to the
Central Government and to the Authority.
35B. Identification of unauthorised constructions on or after 16th June, 1992.―(1) The
Director-General shall, within such time as may be specified by the Central Government, identify
or cause to be identified, all constructions (of whatever nature) made on and after the 16th day of
June, 1992 in all prohibited areas and regulated areas and, thereafter, submit from time to time a
report in respect thereof to the Central Government.
(2) The Director-General shall, for the purposes of sub-section (1), have the power to call for
information from the local bodies and other authorities.]
36. Power to correct mistakes, etc.―Any clerical mistake, patent error or error arising from
accidental slip or omission in the description of any ancient monument or archaeological site and
remains declared to be of national importance by or under this Act may, at any time, be corrected by
the Central Government by notification in the Official Gazette.
37. Protection of action taken under the Act.―No suit for compensation and no criminal
proceeding shall lie against any public servant in respect of any act done or in good faith intended to
be done in the exercise of any power conferred by this Act.
38. Power to make rule.―(1) The Central Government may, by notification in the Official
Gazette and subject to the condition of previous publication, make rules for carrying out the purposes
of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may
provide for all or any of the following matters, namely:―
(a) the prohibition or regulation by licensing or otherwise of mining, quarrying, excavating
blasting or any operation of a like nature near a protected monument or the construction of
buildings on land adjoining such monument and the removal of unauthorised buildings;
(b) the grant of licences and permissions to make excavations for archaeological purposes in
protected areas, the authorities by whom, and the restrictions and conditions subject to which,
such licences may be granted, the taking of securities from licensees and the fees that may be
charged for such licensees;

1. Ins. by Act 10 of 2010, s. 10 (w.e.f. 16-6-1992).

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(c) the right of access of the public to a protected monument and the fee, if any, to be charged
therefore;
1
[(ca) the categories of ancient monuments or archaeological sites and remains, declared as of
national importance, under sub-section (1) of section 4A;
(cb) the manner of making application for grant of permission under sub-section (1) of
section 20D;
(cc) the category of applications in respect of which the permission may be granted and
applications which shall be referred to the Authority for its recommendation, under
sub-section (2) of section 20D;
(cd) the other matters including heritage controls such as elevations, facades, drainage
systems, roads and service infrastructure (including electric poles, water and sewer pipelines)
under sub-section (2) of section 20E;
(ce) the manner of preparation of detailed site plans in respect of each prohibited area and
regulated area and the time within which such heritage bye-laws shall be prepared and particulars
to be included in each such heritage bye-laws under sub-section (3) of section 20E;
(cf) salaries and allowances payable to, and the other terms and conditions of service of, the
whole-time Chairperson and whole-time members, or fees or allowances payable to the part-time
members, of the Authority under sub-section (1) of section 20H;
(cg) the form in which and time at which the Authority shall prepare an annual report giving
full description of its activities for the previous year under section 20P;
(ch) the form and manner in which the Authority and competent authority shall furnish
information to the Central Government under section 20Q;]
(d) the form and contents of the report of an archaeological officer or a licensee under
clause (a) of sub-section (1) of section 23;
(e) the form in which applications for permission under section 19 or section 25 may be made
and the particulars which they should contain;
(f) the form and manner of preferring appeals under this Act and the time within which they
may be preferred;
(g) the manner of service of any order or notice under this Act;
(h) the manner in which excavations and other like operations for archaeological purposes
may be carried on;
(i) any other matter which is to be or may be prescribed.
(3) Any rule made under this section may provide that a breach thereof shall be punishable,―
(i) in the case of a rule made with reference to clause (a) of sub-section (2), with
imprisonment which may extend to three months, or with fine which may extend to five thousand
rupees, or with both;
(ii) in the case of a rule made with reference to clause (b) of sub-section (2), with fine which
may extend to five thousand rupees;

1. Ins. by Act 10 of 2010, s. 11 (w.e.f. 16-6-1992).

23
 39

(iii) in the case of a rule made with reference to clause (c) of sub-section (2), with fine which
may extend to five hundred rupees.
1
[(4) Every rule made by the Central Government under this Act shall be laid, as soon as may be
after it is made, before each House of Parliament, while it is in session, for a total period of thirty days
which may be comprised in one session or in two or more successive sessions, and if, before the
expiry of the session immediately following the session or the successive sessions aforesaid, both
Houses agree in making any modification in the rule or both Houses agree that the rule should not be
made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case
may be; so, however, that any such modification or annulment shall be without prejudice to the
validity of anything previously done under that rule.]
39. Repeals and savings.―(1) The Ancient and Historical Monuments and Archaeological Sites
and Remains (Declaration of National Importance) Act, 1951 (71 of 1951), and section 126 of the
States Reorganisation Act, 1956 (37 of 1956), are hereby repealed.
(2) The Ancient Monuments Preservation Act, 1904 (7 of 1904), shall cease to have effect in
relation to ancient and historical monuments and archaeological sites and remains declared by or
under this Act to be of national importance, except as respects things done or omitted to be done
before the commencement of this Act.

1. Subs. by Act 4 of 2005, s. 2 and the Schedule, for sub-section (4) (w.e.f. 11-1-2005).

24
 40

THE GAZETTE OF INDIA

EXTRAORDINARY
PART II-SECTION 3 – SUB-SECTION (ii)
PUBLISHED BY AUTHORITY
********
NEW DELHI, THURSDAY, OCTOBER 15, 1959/ASVINA 23, 1881
********

MINISTRY OF SCIENTIFIC RESEARCH AND CULTURAL AFFAIRS

NOTIFICATIONS
NEW DELHI, THE 15TH OCTOBER, 1959

S.O. 2306.- In exercise of the powers conferred by section 38 of the Ancient Monuments
and Archaeological Sires and Remains Act, 1958 (24 of 1958), the Central Government hereby
makes the following rules, the same having been previously published in the Gazette of India,
Part II-Section 3-Sub-Section (ii), dated the 8th August, 1959, as required by sub-section (1) of the
said section.

ANCIENT MONUMENTS AND ARCHAEOLOGICAL

SITES AND REMAINS RULES 1959
CHAPTER I
PRELIMINARY

1. Short title, date and commencement: (1) These rules may be called the Ancient
Monuments and Archaeological Sites and Remains Rules, 1959.

(2) They extend to the whole of India, but rules 24, 25, 27, 28, 29 and 30 shall not apply to
the State of Jammu and Kashmir.

(3) They shall come into force on the 15th day of October, 1959.1

1. Definitions.—In these rules, unless the context otherwise requires.—

(a) “construction” means the construction of any structure and includes additions to or
alterations of an existing building;

(b) “copying”, together with its grammatical variations and cognate expressions, means
the preparation of copies by drawing or by photography or by mould or by squeezing
and includes the preparation of a cinematographic film 2[and video film] with the aid of a
hand-camera which is capable of taking films of not more than eight millimeters and
which does not require the use of a stand or involve any special previous arrangement;

1
Vide S.O. 2307, dated 15.10.1959
2
Vide GSR 90, dated 30.01.1991
 41

(c) “filming”, together with its grammatical variations and cognate expressions, means
the preparation of a cinematographic film 1[including video film] with the aid of a camera
which is capable of taking films of more than eight millimeters and which requires the
use of a stand or involves other special previous arrangements;

(d) “form” means a form set out in the Third Schedule;

(e) “mining operation” means any operation for the purpose of searching for or obtaining
minerals and includes quarrying, excavating, blasting and any operation of a like
nature;

(f) “prohibited area” or “regulated area” means an area near or adjoining a protected
monument which the Central Government has, by notification in the Official Gazette,
declared to be a prohibited area, or, as the case may be, a regulated area, for
purposes of mining operation or construction or both;

(g) “Schedule” means a Schedule to these rules; and

(h) “section” means a section of the Ancient Monuments and Archaeological Sites and
Remains Act, 1958 (24 of 1958).

CHAPTER II
ACCESS TO PROTECTED MONUMENTS

3. Monuments governed by agreement.—(1) Access to protected monuments in respect of

which an agreement has been entered into between the owner and the Central Government
under section 6, or in respect of which an order has been made by that Government under
section 9, shall be governed by the provisions of the agreement or, as the case may be, the
order; and nothing in rules 4, 5, 6 or 7 shall be construed as affecting any such agreement or
order.

(2) A copy of the relevant provisions of every such agreement or order shall be exhibited in
a conspicuous part of the monument concerned.

4. Parts of monuments not open.—The Director-General may, by order, direct that 2[any
protected monument or any specified part thereof] shall not be open, permanently or for a
specified period, to any person other than an archaeological officer, his agents, subordinates
and workmen and any other Government servant on duty at such part.

5. Monuments when kept open.--(1) The protected monument specified in the First Schedule
shall remain open during the hours specified against them in that schedule; protected
monuments which are not so specified and to which neither rule 3 nor rule 4 applied shall
remain open from sunrise to sunset:

3
[Provided that an archaeological officer, or any officer of the Archaeological Survey
of India authorised by him in this behalf may, by notice to be exhibited in a conspicuous
part of a protected monument, direct that a protected monument or part thereof shall.—
(i) Be kept open beyond the said period; or

1
Vide GSR 90, dated 30.01.1991
2
Vide GSR 800 (E), dated 17.10.2000 with effect from 28.10.2000
3
Vide S.O. 5002, dated 13.12.1969

2
 42

(ii) Be closed temporarily for such period as may be specified

by the notice].

(2) Nothing in this rule or in rule 6 shall apply to an archaeological officer, his agents,
subordinates and workmen or to any other Government servant on duty at a protected
monument.

6. Entrance fee.—
1
[No person above the age of fifteen years shall enter any protected monument or part thereof.—

(a) Specified as category A monuments in Part I of the Second Schedule,

2
[except on payment as follows:

(i) Citizens of India – Rs. 10/- per head;

(ii) Others - 3[[US $ 5 or Indian Rs. 250/-]] per head.]

(b) Specified as category B monuments in Part II of the Second Schedule,

2
[except on payment as follows;

(i) Citizens of India – Rs. 5/- per head;

(ii) Others - 3[[US $ 2 or Indian Rs. 100/-]] per head.]

4
[* * *]
5
[Provided further that an archaeological officer, or any officer of the
Archaeological Survey of India authorised by him in this behalf may exempt, members
of delegations sponsored by the Central Government or a State Government, State
Guest and persons accompanying such delegations or guest, from the payment of such
fee.]
6
[Provided also that the Director-General may, by order, direct that, on such
occasions and for such periods as may be specified in the order, no fee shall be
charged for entry into a protected monument or part thereof.]
7. Holding of meetings, etc., in monuments.—(1) No protected monument shall be used for
the purpose of holding any meeting, reception, party, conference or entertainment except
under and in accordance with a permission in writing granted by the Central Government.

(2) Nothing in sub-rule (1) shall apply to any meeting, reception, party, conference or
entertainment, which is held in pursuance of a recognized religious usage or custom.

8. Prohibition of certain acts within monuments.—No person shall, within a protected

monument,--

1
Vide GSR 688(E), dated 24.09.2001, w.e.f. 1.10.2001.
2
Vide GSR 800(E), dated 17.10.2000, w.e.f. 28.10.2000.
3
Vide GSR 688(E), dated 24.09.2001, w.e.f. 1.10.2001.
4
Word “Provided that on every Friday, no such fee shall be charged”. Omitted by GSR 848(E) dated 3.11.2000. w.e.f. 3.11.2000.
5
Vide S.O. 3520, dated 20.11.1966.
6
Vide S.O. 5002, dated 13.12.1969.

3
 43

(a) do any act which causes or is likely to cause damage or injury to any part of the
monument; or

(b) discharge any fire-arms; or

(c) cook or consume food except in areas, if any, permitted to be used for that purpose; or
1
(d) [hawk or sell any goods or wares or canvas any custom for such goods or wares or
display any advertisement in any form or show a visitor round or take his photograph
for monetary consideration, except under the authority of, or under, and in accordance
with the conditions of, a licence granted by an archaeological officer;]

(e) beg for alms; or

(f) violate any practice, usage or custom applicable to or observed in the monument; or

(g) bring, for any purpose other than the maintenance of the monument,

(i) any animal, or

(ii) any vehicle except in areas reserved for the parking thereof.

9. Penalty.—Whoever—
(i) unlawfully enters any protected monument or part thereof at a time
when, under these rules, it is not to be kept open, or

(ii) unlawfully enters any protected monument in respect of which an

order has been made under rule 5, or

(iii) contravenes of any of the provisions of rule 6 or rule 7 or rule 8,

shall be punishable with fine which may be extended to five hundred rupees.
CHAPTER III
CONSTRUCTION AND OTHER OPERATIONS
IN PROTECTED AREAS

10. Permission required for construction, etc.—(1) No person shall undertake any
construction or mining operation within a protected area except under and in accordance with
a permission granted in this behalf by the Central Government.

(2) Every application for permission under sub-rule (1) shall be made to the Central
Government in Form-I at least three months before the date of commencement of the
construction or operation.

11. Licence required for excavation.—No person other than an archaeological officer or an
officer authorised by him in this behalf shall undertake any excavation for archaeological
purposes in any protected area except under and in accordance with the terms and
conditions of a licence granted under rule 13.

1
Vide S.O. 935, dated 16.02.1971.

4
 44

12. Application for licence.—Every application for a licence shall be in Form-II and be made to
the Director-General at least three months before the proposed date of the commencement
of the excavation operations.

13. Grant or refusal of licence.—(1) On receipt of an application under rule 12, the Director-
General may grant a licence in Form-III if he is satisfied that, having regard to the status of
the applicant, the competence of the director of excavation operations, the adequacy of the
staff to be employed and other relevant factors, the licence may be granted to the applicant:

Provided that no licence shall be granted unless the applicant has furnished security
of such amount not exceeding rupees ten thousand as the Director-General may, having
regard to the circumstances of each case, require.
(2) The Director-General, by order, may, for reasons to be recorded in writing, refuse to grant
a licence in any particular case.

14. Period of licence,--Every licence shall be in force for such period not exceeding three years
as may be specified in the licence:

Provided that the Director-General may, on application made to him at least one
month before the expiry of a licence, extend its period by one year at a time so that the
aggregate period does not exceed five years.
15. Cancellation of licence,--The Director-General may, by order, cancel a licence granted
under rule 13 if he is satisfied that the conduct of the excavation operations has not been
satisfactory or in accordance with the conditions of the licence, or if any further security
demanded under rule 18 has not been deposited within the specified time:

Provided that no licence shall be cancelled unless the licensee has been given an
opportunity to make his objections.
16. Conditions of licence,--Every licence shall be subject to the following conditions, namely:

(a) the licence shall not be transferable;

(b) the licensee shall give to the Director-General, the Collector and the owner of the
land to be excavated at least fifteen days’ notice in writing of the commencement of
the excavation operations;

(c) the licensee shall produce the licence before the District Magistrate or the District
Superintendent of Police concerned or an archaeological officer, if so required;

(d) the excavation operations shall be conducted under the supervision of the director
named in the licence who shall be present at the excavation operations for at least
three-fourths of the period of the operations;

(e) the licensee shall not, without the permission of the Director-General, dismantle or disturb
any structures found during the excavation operations and shall make adequate
arrangements for the safety of such structures and of the excavated antiquities till they
are taken charge of by the Director-General;

(f) The licensee shall not subject any antiquities recovered during the excavation operations
to any chemical or electrolytic process of cleaning without the written permission of the
Director-General;

5
 45

(g) An archaeological officer or his representative may inspect the excavation operations or
any antiquities recovered during the operations and make notes on or copy or film the
excavated structures and antiquities;

(h) The licensee shall not discontinue the excavation operations unless he has given at least
fifteen days’ notice in writing to the Director-General;

(i) At the conclusion of the excavation operations, the licensee shall give notice in writing to
the owner of the land specifying the nature of the antiquities, if any, recovered during the
operations;

(j) The licensee shall, within three months of the completion of the excavation operations,
submit to the Director General a summary report of the results of the excavation, and
where the operations are carried on for a period of more than three months such report
shall be submitted every quarter, and it shall be open to the Director-General to publish
the report in his reports or reviews; and

(k) The licensee shall as soon as practicable submit a report in Form IV to the Central
Government through the Director General on the antiquities recovered during the
excavation operations.

17. Recovery from security.—The Director-General may, by order, direct the deduction, from
the security furnished by a licensee under rule 13, of—

(a) the value of any antiquities recovered during the excavation operations and lost or
destroyed while in the custody of the licensee; and

(b) any compensation payable by the Central Government under section 27 to the owner or
occupier of the land excavated by the licensee.

18. Demand of further security.—Where during the currency of a licence, any amount has
been recovered under rule 17, the Director-General may require the licensee, within such
time as he may specify, to deposit such further sum as security as is equivalent to the
amount so recovered.

19. Appeal.—Any person aggrieved by an order of the Director-General under rule 13 or rule 15
or rule 17 may prefer an appeal to the Central Government; and the decision of that
Government on such appeal shall be final.

20. Return of security.—On expiration or earlier cancellation of a licence, the security deposited
by the licensee or the balance thereof remaining after deduction of any amount under rule 17
shall be returned to him.

21. Publication of the result of excavation.—Save as otherwise provided in rule 16, the
Director-General shall not, without the consent of the licensee, publish the results of the
excavation unless the licensee has failed to publish the results within the period specified by
the Director-General in this behalf.

22. Retention of antiquities by licensee.—The Central Government may, by order, subject to

such terms and conditions as may be specified, permit the licensee to retain such of the
antiquities recovered during the excavation operations as may be specified therein:

6
 46

Provided that human relics of historical importance and antiquities, which, in the opinion of
the Central Government, are of national importance, shall not be permitted to be retained by
the licensee.
23. Penalty.—Whoever—

(i) unlawfully undertakes any excavation for archaeological purposes in any

protected area, or

(ii) contravenes any of the conditions of a licence,

shall be punishable with fine which may extend to five thousand rupees.
CHAPTER IV
EXCAVATION IN UNPROTECTED AREAS

24. Intimation to the Central Government.—Every State Government intending to undertake or

authorize any person to undertake any archaeological excavation or other like operation in
any area which is not a protected area shall intimate its intention to the Central Government
at least three months prior to the proposed date of the commencement of the excavation or
operation specifying the following details, namely,—

(i) name, location and other details of the site;

(ii) nature of antiquities previously found;

(iii) details of previous explorations, if any;

(iv) purpose of the excavation or operation;

(v) proposed extent of the excavation or operation (a plan of the site in triplicate
showing in red outline the extent of the proposed excavation or operation
should be attached);

(vi) proposed duration of the excavation or operation;

(vii) amount of the proposed expenditure on the excavation or operation; and

(viii) name and status of the director of the excavation or operation.

25. Approval by the Central Government.—After considering the proposal, the Central
Government may either approve it or advise the State Government to modify it or to abandon
it altogether.

26. Deputation of an archaeological officer.—The Central Government may depute an

archaeological officer to inspect the excavation or operation while it is in progress and render
such advise as he deems necessary.

CHAPTER V
REPORT ON EXCAVATED ANTIQUITIES
BY AN ARCHAEOLOGICAL OFFICER

27. Form of report by an archaeological officer.—Where, as a result of an excavation made

by an archaeological officer in any area under section 21 or 22 any antiquities are

7
 47

discovered, the archaeological officer shall, as soon as practicable, submit a report in Form V
to the Central Government through the Director-General on the antiquities recovered during
the excavation.

CHAPTER VI
MOVING OF ANTIQUITIES FROM CERTAIN AREAS

28. Application for moving antiquities.—Every application for permission to move any
antiquities or any class of antiquities in respect of which a notification has been issued under
sub-section (1) of section 25 shall be made in Form-VI to the Director-General at least three
months before the proposed date of the moving.

29. Grant of refusal of permission.—On receipt of an application under rule 28, the Director-
General may, after making such enquiry as be may deem necessary, grant permission for the
moving of all or any of the antiquities or, for reasons to be recorded, refuse such permission.

30. Appeal.—Any person aggrieved by an order of the Director General under rule 29 may prefer
an appeal to the Central Government; and the decision of that Government on such appeal
shall be final.

CHAPTER VII
MINING OPERATION AND CONSTRUCTION
NEAR PROTECTED MONUMENTS

31. Notice of intention to declare a prohibited or regulated area.--(1) Before declaring an

area near or adjoining a protected monument to be a prohibited area or a regulated area for
purposes of mining operation or construction or both, the Central Government shall, by
notification in the Official Gazette, give one month’s notice of its intention to do so; and a
copy of such notification shall be affixed in a conspicuous place near the area.

(2) Every such notification shall specify the limits of the area which is to be so declared and
shall also call for objections, if any, from interested persons.

32. Declaration of prohibited or regulated area.—After the expiry of one month from the date
of the notification under rule 31 and after considering the objections, if any, received within
the said period, the Central Government may declare, by notification in the Official Gazette,
the area specified in the notification under rule 31, or any part of such area, to be a prohibited
area, or, as the case maybe, a regulated area for purposes of mining operation or
construction or both.

33. Effect of declaration of prohibited or regulated area.—No person other than an

archaeological officer shall undertake any mining operation or any construction—

(a) in a prohibited area, or

(b) in a regulated area, except under and in accordance with the terms and
conditions of a licence granted by the Director-General.

34. Application for licence.—Every person intending to undertake any mining operation or any
construction in a regulated area shall apply to the Director-General in Form VII at least three
months before the date of commencement of such operation or construction.

8
 48

35. Grant or refusal of licence.—(1) On receipt of an application under rule 34, the Director
General may grant a licence or, if he is satisfied that the licence asked for should not be
granted, may, for reasons to be recorded, refuse to grant a licence.

(2) Every licence granted under sub-rule (1) shall be in Form VIII and be subject to the
following conditions, namely:-

(a) the licence shall not be transferable;

(b) it shall be valid for the period specified therein; and

(c) any other condition relating to the manner of carrying out the mining operation or
the construction which the Director-General may specify in the licence for ensuring
the safety and appearance of, and the maintenance of the approach and access to,
the protected monument.

36. Cancellation of licence.—The Director-General may, by order, cancel a licence granted

under rule 35 if he is satisfied that any of its conditions has been violated:

Provided that no licence shall be cancelled unless the licensee has been given an
opportunity to make his objections.
37. Appeal.—Any person aggrieved by an order of the Director-General made under rule 35 or
rule 36 may prefer an appeal to the Central Government; and the decision of that
Government on such appeal shall be final.

38. Removal of unauthorized buildings.—(1) The Central Government may, by order, direct
the owner or occupier of an unauthorized building in a prohibited area or in a regulated area
or of a building or part thereof which has been constructed in contravention of any of the
conditions of a licence granted under rule 35 to remove such building or part thereof within a
period specified in that order.

(2) If the owner or occupier refuses or fails to comply with an order made under sub-rule (1),
the Central Government may direct the District Magistrate to cause the building or part
thereof to be removed, and the owner or occupier shall be liable to pay the cost of such
removal.

39. Penalty. —Whoever—

(i) unlawfully undertakes any mining operation or construction in a prohibited area

or in a regulated area, or

(ii) contravenes any of the conditions of a licence, or

(iii) fails or refuses to comply with an order made under sub-rule (1) of rule 38,

shall be punishable with imprisonment, which may extend to three months or with fine which may
extend to five thousand rupees or with both.
CHAPTER VIII
COPYING AND FILMING OF PROTECTED MONUMENTS

40. Permission required for copying certain monuments.—The Director General may, by
order, direct that no person other than an archaeological officer or an officer authorized by an
archaeological officer in this behalf shall copy any specified monument or part thereof except

9
 49

under and in accordance with the terms and conditions of a permission in writing by an
archaeological officer.

41. Conditions of copying other monuments.—(1) Any person may copy a protected
monument in respect of which no order under rule 40 has been made.

(2) Nothing in sub-rule (1) shall be construed as authorizing any person other than an
archaeological officer or an officer authorised by him in this behalf, while copying any
such monument, to—

(a) bring into or use within the precincts of such monument a camera-stand, stool,
chair, table, large drawing-board, easel or any such appliance, or

(b) erect any scaffolding within such precincts, or

(c) use within such precincts any artificial light other than a flash-light synchronised
with the exposure of a camera, or

(d) apply any extraneous matter, such as water, oil, grease or any moulding material,
on such monument or part thereof, or

(e) prepare a direct tracing or mould or squeeze of such monument or part thereof,
except under and in accordance with the terms and conditions of a permission in
writing granted by an archaeological officer.

42. Licence required for filming.—

1
[(1) No person other than an archaeological officer or an officer authorised by him in this
behalf shall undertake any filming operation at a protected monument or part thereof
except under and in accordance with the terms and conditions of a licence granted
under rule 44.
2
[(2) Nothing in sub-rule (1) shall apply to any person undertaking video filming from exterior
of a protected monument except those specified in the Second Schedule in respect of
which video-filming shall be permitted on payment of Rs. 25/-;

Provided it is for non-commercial purpose and does not involve any cast and use of a stand
or in anyway interfere with customary and religious practices and work and work of repairs.]

43. Application for licence.—Every person intending to undertake any filming operation at a
protected monument shall apply to the Director-General in Form IX at least three months
before the proposed date of the commencement of such operation.

44. Grant or refusal of licence.—(1) On receipt of an application under rule 43, the Director
General may grant a licence 3[on payment of a fee of Rs. 5,000 (rupees five thousand) in
case of professionals and other agencies] or, if he is satisfied that the licence asked for
should not be granted, may, for reasons to be recorded, refuse to grant a licence:

Provided that the Director General shall not grant any licence to film the interior of any
protected monument, that is to say such part of any protected monument as is covered

1
Renumbered by GSR 90, dated 30.01.1991.
2
Vide GSR 90, dated 30.01.1991.
3
Vide GSR 90, dated 30.01.1991.

10
 50

by a roof of any description, except when the film is for the purpose of education or of
publicising the monument.

(2) Every licence granted under sub-rule (1) shall be in Form X and be subject to the
following conditions, namely:-

(a) the licence shall not be transferable and shall be valid for the period specified
therein;

(b) nothing shall be done by the licensee or any member of his party which has, or
may have, the effect of exposing any part of the monument or attached lawn or
garden to the risk of damage;

(c) the filming operation shall be restricted to that part of the monument in respect of
which the licence has been granted;

(d) no extraneous matter, such as water, oil, grease or the like, shall be applied on
any part of the monument;

(e) the generating plant for electric power, wherever required, shall be placed away
from the monument or the attached lawn or garden;

(f) the filming operation shall not obstruct or hamper the movement of persons who
may lawfully be within the precincts of the monuments and

(g) any other condition which the Director-General may specify in the licence.

45. Cancellation of licence.—The Director-General, by order, may, after giving notice to the
licence, cancel a licence granted under rule 44 if he is satisfied that any of its conditions has
been violated.

46. Appeal.—Any person aggrieved by an order of the Director-General made under rule 44 or
rule 45 may prefer an appeal to the Central Government; and the decision of that
Government on such appeal shall be final.

47. Certain rules not affected.—Nothing in rule 41 and no provision of a permission granted
under rule 40 or of a licence granted under rule 44 shall affect the operation of rules 3, 4, 5,
6, 7, 8 and 9.

48. Penalty.—Whoever copies or films any protected monument or does any other act in
contravention of any provision of this chapter or of any permission or licence granted
thereunder shall be punishable with fine which may extend to five hundred rupees.

CHAPTER IX
MISCELLANEOUS

49. Manner of preferring an appeal.—

(1) Every appeal to the Central Government under the Ancient Monuments and
Archaeological Sites and Remains Act, 1958, or under these rules shall be in writing and
shall be preferred within one month of the date of receipt of the order appealed against.

(2) Every such appeal shall be accompanied by a copy of the order appealed against.

11
 51

50. Service of orders and notices.—Every order or notice made or issued under the Ancient
Monuments and Archaeological Sites and Remains Act, 1958, or these rules shall—

(a) in the case of any order or notice of a general nature or affecting a class of persons, be
published in the Official Gazette; and

(b) in the case of any order or notice affecting a corporation or firm, be served in the manner
provided for the service of summons in rule 2 of order XXIX or rule 3 of order XXX, as the
case may be, in the First Schedule to the Code of Civil Procedure, 1908; and

(c) in the case of any order or notice affecting an individual person, be served on such
person—

(i) by delivering or tendering it to the person concerned, or

(ii) if it cannot be so delivered or tendered, by delivering or tendering it to any

adult male member of the family of such person or by affixing a copy thereof
on the outer door or some conspicuous part of the premises in which that
person is known to have last resided or carried on business or personally
worked for gain, or

(iii) by sending it by registered post, acknowledgement due.

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 91

JUSTICEGPSINGH
PRINCIPLES OF
STATUTORY
INTERPRETATION
Including the General Clauwes Act. 1897 with Notes

14TH EDITION

Revised by

Justice A K Patnaik
Former Judg, Supreme CourtofIndia

LexisNexis
 92

First Edition 1966

Second Edition 1975
Third Edition 1983
Fourth Edition 1988
Fifth Edition 1992
Sixth Edition 1996
Seventh Edition 1999
Eighth Edition 2001
Ninth Edition 2004
Tenth Edition 2006
Eleventh Edition 2008
Twelfth Edition 2010
Thirteenth Edition 2012
Reprint (Oct.) 2012
Fourteenth Edition 2016
 93
Syn 6 Mandatory and Directory Provisions 441

before a court in which the person charged may lawfully be indicted for
that offence and where a bill of indictment has been so preferred the prop-
er officer of the court shall, if he is satisfied that the requirements of the
next following section have been complied with, sign the bill, and it shall
thereupon become the indictment and be proceeded with accordingly' In R
. Clarke,"
which came up in appeal before the House of Lords, the bill of
indictment was signed by the proper officer after the trial was almost over.
and earlier au-
The court having regard to the legislative history of the Act
the
thorities held that the requirement of signing the bill of indictment by
trial began was mandatory and in its
the court before the
proper officer of
absence the trial which ended in conviction was vitiated and quashed.

statute
(b) When consequences provided by
failure to comply with a pre-
When consequence of nullification
on

itself, there can be no man-

is provided by the
scribed requirement
statute
must be interpreted as manda-
ner of doubt that such statutory requirement
tory. which by clauses 2
Ordinance No. 7 of 1840,
The provisions of Ceylon contracts and further
formalities for transfers and
and 21 provided certain in law' un-
transfer or contract
'shall be of force or avail
provided that no were held by the
those requirements,
less it wasmade in conformity 10with
Council to be mandatory."
Privy to the Indian Limitation
Act,
prescribed in the Schedule
as the consequence
The periods are mandatory
a legal proceeding section 3 of the
U8, for bringing of limitation is provided by instituted
the period proceeding
Or the expiry ofcourt is enjoined to dismiss a legal follow if the
in that the Similar result will
ACt prescribed period."
C o n s u m e r Protec
alter expiry of the of the section 24A
in
directed as filed within the pe
or the forum is unless it is
urt not to
admit a complaint
such cases is
a jurisdiction-
Act, 1986' of limitation in

Odprescribed. The question

AIR
Gogoi v.
State of Assam,
865 (H.L.). further
Rajsekhar
8. (2008) 2 All ER 3-13, infra. See (para 1 1). v. JBM Perera,
AIR
text and
notes
6 SCC 46
See
Arseculeratne

2315: (2001) John H.

2001 SC 2313,(1915) AC 1100 (PC);
p.
85, p. 88,
10. AIR 1935 PC
.Pate v. Pate, N a r a i n Singh, State Bank of India
v.

1928 PC 273, p. 275. Pratap

(2005) 9 JT 503; AIR 2009 SC
Onkar 12
gbool
Ahmad. 1 SCC 164
(2006)
121 paras 11,
SCC
12 HUDAv. Sood. (2009) 5
B.K. (I),
4 Agricultural
Industries

2210.
 94
Syn 6 Mandatory and Directory Provisions 443
Section 33(5) of the same Act which requires a candidate who is an
elector of different constituency to produce a certified copy of his rele-
vant entry in
in the Electoral Roll at the time of scrutiny has been inter-
preted as mandatory as the consequence of such non-compliance is
Drovided by section 36(2) of the same Act which empowers the Return-
ing Officer to reject a nomination paper for non-compliance of section
33" GAJENDRAGADKAR, J., delivering the judgment of Supreme Court
in this case observed: "Whenever a statute requires a particular act to be
done in a particular manner and also lays down that failure to comply
with the said requirement leads to a specific consequence, it would be
difficult to accept the argument that the failure to comply with the said
requirement should lead to any other consequence." On the other
hand, in the absence of any provision making a breach of the proviso to
section 83(1) of the Representation of the People Act, 1951, a valid
ground for dismissal of an election petition at the threshold, the Su-
preme Court has held that the requirement of filing an affidavit in a
given format thereunder cannot be exalted to the status of a statutory
mandate by judicial interpretation."
It is an application of the same principle that the provisions of Order
XXI, rules 84 and 85 of the Code of Civil Procedure, 1908 requiring an
auction-purchaser to deposit twenty-five per cent of the purchase money
forthwith and the balance on the fifteenth day from the sale, have been
held to be mandatory, as on failure, in making either of these
deposits

Footnote No. 16 Contd.]

Manikumar Subba, AIR 2003 SC 51 (2003) 1 SCC 289; Chandrakant Uttam Cho-
dankar v. Dayanand Rayu Mandrakar, (2005) 2 SCC 188; G.V. Sreerama Reddy v. Re-
turning Officer, (2009) 8 SCC 736 para 14: (2009) 10 JT 316 (Requirement of Section
810) of he Representation of the People Act, 1951 that an election petition may be
presented by any candidate or any elector has been held to be mandatory and presenta-
tuon of an election petition by a candidate's advocate was held to be not a proper com-
plhance in view of Section 86(1) which provides for dismissal of an election petition for
non-compliance of Section 81).
Baru Ram v. Parsanni (Smt.), AIR 1959 SC 93, p. 96 1959 SCR 1403; Birad Mal
nghvi v. Anand Purohit, AIR 1988 SC 1796, p. 1800: 1988 Supp SCC 658.
N.B.-But out of many requirements lumped together non-compliance of which
Cnacted to lead to a particular consequence, it may be possible to hold that a substan
a compliance is sufficient; see K. Kamaraja Nadar v. Kunju Thewar, supra, p. 697;
Subbarao (Ch.) v. Member, Election Tribunal, HyderaBbad, AIR 1964 SC 1027, p.
05 (para 14), p. 1033 (para 25) : (1964) 6 SCR 213. See further text and note 72.
Pp. 397.
18.
aru Ram v. Parsanni (Smi.), supra; Surifuddin v. Abdul Gani, AlR 1980 SC 303. p. 306
(1980) 1 SCC 403.
Ponnala Lakshmaiah v. Kommuri Pratap Reddy & Ors., (2012) 7 SCC 788. p.
803.
7 24
18 2
95
Subsidiary Rules
444 [Chap 5
within the time prescribed, theproperty has to be re-sold as provided in
Order XXI, rule 84 and rule 86.
In a case relating to interpretation of section 47 of the Punjab inicipal
Act, 1911, which in sub-sections (1) and (2) lays down certain formalitie
for contracts or transfers made by a municipal committee and by sub-
section (3) provides that 'no contract or transter of the description men.
tioned in this section executed otherwise than in conformity with the nro
visions of this section shall be binding on the committee, SINHA, C.J., ob.
served that: "It is settled law that provisions ofa statute in those perempto-

ry terms could not but be construed as mandatory."

In some cases the consequence provided for breach of an imperative du-
in the light of other provisions of the
ty may itself require construction
Act. Thus section 64 of the Police and Criminal Evidence Act, 1984 pro-
hibiting use of a sample, which should have been destroyed, as evidence or
for investigation was construed not to affect admissibility of other evi-
dence in court collected in an investigation which was prohibited provided
it did not affect fairness of the trial under section 78 of the same Act
When the statute does not expressly provide for nullification as a conse

quence of the non-compliance of the statutory injunction but imposes ex-

pressly some other penalty, it is a question of construction in each given
case whether the Legislature intended to lay down an absolute prohibition
or merely to make the offending person liable for the penalty. A large
en-
number of cases involving such a question have arisen in relation to
forcement of agreements made in contravention of some statutory re
quirements and principles that emerge out of them have been admirabiy
Summed up in HALSBURY'S Laws of England which may be usefully quol
ed: "If the penalty is recurrent, that is to say, if it is imposed not nmer
once for all but as often as the act is done, this amounts to a prohibito
the
Where the object of the Legislature in imposing the penalty is mereng
protection of the the statute will not be construed as prohibiting
revenue, s
penalty
the act in respect of which the is
penalty imposed; but where the| be for
imposed with the object of protecting the public though it may also no
protection of the revenue, the act must be taken to be prohibited, an is
which
action can be maintained by the offending party on a contract wi

SC 349
AIR 1954
20.
Manilal Mohanlal Shah v. Sardar Sayed Ahmed Sayed Mahmad, AIR3
1955 (1) SCR 108; Rao Mahmood Ahmed Khan v. Ranbir Singh, 19
Scale
842: 1995 AIR SCW 1584: 1995 Supp (4) SCC 275: AIR 1995 SC21 59
21. H.S. Rikhy (Dr.) v. New Delhi Municipal Committee, AIR 1962 SC 5* ahu. T
1962 (3) SCR 604. See further, M.I. Builders Pit. Lud. v. Radhey Shyaman 1324)
1999(5) SC 42. pp. 57, 89 1999(6) SCC 464: AIR 1999 SC 2468 (secti468.
of U.P. Nagar Palika Adhiniyam, 1959]: (1999) 6 SCC 464: AIR
199 58R4 (HLD
22. Attorney General's Reference (No. 3 of 1999), (2001) 1 All ER 577. pp. 585.
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1996 SCC OnLine Del 153 : (1996) 62 DLT 313 (DB)

Delhi High Court

(BEFORE Y.K. SABHARWAL AND K. RAMAMOORTHY, JJ.)

Anil Kumar Khurana … Appellant;

versus
Union of India & Ors. … Respondents.
C.W. 4545 of 1994 alongwith C.Ws. 4829, 4938, 4958, 4957, 4937, 4956, 4795,
4936, 4731, 4794, 4882, 5214, 5189, 4959, 5183, 5185, 5186, 3740, 4825,
4547, 4546, 5213, 5212, 5204, 5205, 5197A, 5191 and 5190 of 1994, 345, 279,
195, 94, 92, 254, 100, 95, 196, 197, 482, 429, 204, 428 and 5200/95, C.M.(M)
614/94, FAO(OS) 14-21/95, FAO(OS) 43 of 1995, C.W. 4545/94 Along with C.W.
Nos. 4545, 4546, 4547, 3740, 4882, 4958, 4959, 4957, 5191, 5204, 5205, 5185,
5212, 5213, 5186, 5214, 5183, 5189, 5190, 4956, 4825, 4731, 4829, 5197A,
5200, 4794, 4795, 4936, 4937, 4938 of 94, 428, 429, 482, 195, 196, 197, 204,
254, 279, 345, 100, 92, 94, 95 of 95, FAO(OS) 21/95, FAO(OS) 17/95, FAO(OS)
19/95, FAO (OS) 14/95, FAO(OS) 18/95, FAO(OS) 16/95, FAO(OS) 20/95, FAO
(OS) 15/95, FAO(OS) 43/95, CM(M) 615/94, CM(M) 616/94 and CM(M) 617 of
1994
Decided on February 9, 1996

Page: 316

The Judgment of the Court was delivered by

Y.K. SABHARWAL, J.— I had the advantage of reading the opinion of my learned
Brother K. Ramamoorthy. I am in respectful agreement with the conclusions reached
by brother Ramamoorthy that all the appeals and writ petitions deserve dismissal. In
his judgment Brother Ramamoorthy has dealt with various aspects of the matter in
great detail as also the decisions cited before us. Considering, however, the gravity of
unauthorised construction and misuser and numerous cases which come up before
Courts seeking injunction relating to such constructions, I would notice few sailent
facts of these cases.
2. The unauthorised construction and unauthorised user of residential building for
commercial purposes in Delhi has gained alarming proportions and crossed all limits.
At the very outset I may state that these activities are against the interests of the
Society at large and need to be dealt with firmly.
3. The common questions of fact and law are involved in these batch of writ
petitions and appeals in respect of buildings in Karol Bagh Zone.
4. The appeals have been preferred by the owners/builders challenging the
judgment dated 5th December, 1994 passed by a learned Single Judge dismissing
their injunction applications filed in the suits praying for grant of decree for permanent
injunction restraining the Municipal Corporation of Delhi (M.C.D.) and another from
taking any demolition and/or sealing action in respect of the properties in question.
5. The writ petitions have been preferred by the purchasers of built up areas/spaces
in these buildings.
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6. The main arguments were addressed in the case of Anil Kumar Khurana (C.W.
4545 of 1994). Khurana says that he had purchased built up area measuring 1560 sq.
ft. on the 4th floor in the building constructed on Plot No. 11/5-B, Pusa Road, New
Delhi, by four different agreements dated 4th July, 1994 for a total consideration of
Rs. 30,40,000/- from Pawan Kumar and others.

Page: 317

7. FAO (OS) 19/95 has been filed by Pawan Kumar against the dismissal of his
injunction application in Suit No. 176 of 1994, The brief facts of the writ petition of
Khurana and appeal of Pawan Kumar may first be noticed.

8. In January 1994 Pawan Kumar instituted the aforesaid suit claiming to be the
owner and in possession of property bearing Plot No. 5, Block 11-B, Pusa Road and
pleading that after demolishing the old structure he started fresh construction as per
the sanctioned plan. It was also claimed that he completed the construction as per
sanction and within time of the validity of the sanction plan, namely, upto July 1994.
He further pleaded that there were minor deviations in the construction from the
sanctioned plan and the deviations were within the compoundable limits and,
therefore, the MCD after receiving the compounding fee granted to him the completion
certificate in respect of the property. He has specifically pleaded in the suit that the
construction was strictly as per sanction and building bye-laws and for minor
deviations he had paid the compounding fee and, therefore, claimed that the property
is as per the sanction and building bye-laws. He further claimed that he had not
violated any of the terms of sanction granted, provisions of the Municipal bye-laws, the
Delhi Municipal Corporation Act, the building bye-laws and the rules framed
thereunder. The suit was filed since the defendants were threatening demolition of the
property and disconnection of essential supply of electricity. By an ex parte order
made on 21st January, 1994, MCD was, inter-alia, restrained from demolishing the
property. On 27th July, 1994, the learned Single Judge dealing with the suit, after
noticing the contention of learned Counsel for the MCD that the MCD has taken strong
exception to the illegal construction raised by the plaintiff and, therefore, the plaintiff
should not be allowed to occupy the premises or raise any further construction and
also the stand of learned Counsel for the plaintiff that the plaintiff and others are
already in occupation, issued the directions that the plaintiff shall maintain status
quo regarding possession and construction as on the date of the passing of the order
and that the plaintiff will not henceforth transfer right in the property to any third
person.
9. In the written statement the MCD, inter-alia, pleaded that a completion
certificate was granted in respect of the building in question on November 16, 1993 in
respect of construction of basement, ground floor, first floor and barsati. It was also
pleaded that the permissible deviations in respect of which the compounding fee was
paid were also included in the completion certificate. Further facts pleaded by MCD in
the written statement are these:—
On 28th January, 1994 unauthorised construction was detected at the basement,
ground floor, first floor, second floor and third floor of the building. Show cause
notice was issued and since no reply was received, demolition notice for
unauthorised construction was issued on 3rd February, 1994 to which also no reply
was forthcoming and thus the MCD passed demolition order on 10th February 1994.
On 3rd February 1994 and 4th February 1994 ongoing unauthorised construction in
the building was demolished in part; on February 10, 1994 still further demolition
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orders in respect of unauthorised construction was passed but before the same
could be executed the plaintiff carried further unauthorised construction at the 4th
floor of the building which was detected on April 25, 1994 and a show cause notice
was issued to

Page: 318

the plaintiff on the same date. The demolition order in respect of the 4th floor was
passed on May 9, 1994. On February 11, 1994 when officers of the MCD went to
demolish the ongoing unauthorised construction the plaintiff showed them a stay order
having been granted by this Court. According to the Municipal Corporation of Delhi
apparently even after obtaining stay order from this Court the plaintiff has been
carrying on unauthorised construction in the premises as a bare reading of the
completion certificate makes it clear that the construction has been allowed only upto
Barsati but the plaintiff has raised construction on 3rd floor as well as 4th floor besides
raising unauthorised construction even on the basement, ground floor, first floor and
second floor.

10. The suit of Pawan Kumar was being heard by learned Single Judge alongwith
various other suits including Suit No. 159 of 1994 filed by Smt. Paramjit Kaur v. MCD
raising similar disputes. A local Commissioner was appointed by the Court to report
about the existing structures. The report of the learned local Commissioner in respect
of the existing structure shows that in Basement floor, there is a big Hall lying vacant,
ground floor—there is a big hall lying vacant with toilet, bathroom built with small hall
with attached bathroom temporarily meant for labour in the rear side back, First
floor—there is a big hall with toilet, bathroom built in all respect and lying vacant. On
Second floor—there is a big hall with toilet, bathroom built and lying vacant, Third
floor—there is one big hall with toilet, bathroom built and lying vacant, Fourth Floor—
there is one big hall with toilet, bathroom complete and lying vacant; Terrace with a
covered Mamti. There is a lift which is incomplete and is not functioning.
11. The learned local Commissioner reported that the building consists of basement
floor, first floor, second floor, third floor, fourth floor and terrace with covered mamti
but owner/builder has got the building plan sanctioned only for construction of a
basement, ground floor, first floor and a half second floor i.e. barsati.
12. By judgment dated 5th December, 1994, the learned Single Judge came to the
prima facie view that it was not a fit case where injunction could be confirmed. The
conduct of the plaintiff regarding misrepresentation and concealment of material facts
and in particular the case set up by the plaintiff that the building was constructed as
per sanctioned plan, has been noticed in the judgment under appeal which also makes
reference to the report of the local Commissioner, referred to above. The contention
that the MCD has no jurisdiction to order or conduct demolition has also not found
favour with the learned Single Judge. The judgment of the learned Single Judge is
under appeal before us.
Brief Facts of C.W. 4545/1994
13. As noticed earlier the writ petitioner Mr. Anil Kumar Khurana claims to have
purchased built up area of 1560 sq. ft. on the 4th floor in the aforesaid building from
Pawan Kumar and others by four different agreements to sell, all dated 4th July, 1994.
These agreements were entered into after the ex-parte order of injunction was passed
in the suit referred to above and after show cause notice and demolition order had
been passed by the MCD. Khurana has pleaded that the promoter of the building had
applied to Commissioner, MCD, for grant of permission for erecting residential
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building. He further says that the building work started in the year 1992

Page: 319

and was completed within a span of two years in early 1994. He also admits that
instead of a residential building, a commercial building was erected. It also stands
admitted on record that according to the terms of the lease deed of the plot in
question the user is residential. Khurana, however, says that he is not privy to
submission of building application or to the obtaining of sanction from MCD for
construction of the building. The main contention urged by Khurana is that MCD has
no jurisdiction over the land under the plot and, therefore, the action of the MCD in
taking demolition action is without jurisdiction. Khurana says that it was mistake of
the promoter to obtain sanction for construction of the building from MCD to which he
is neither a party nor there can be an estoppel against the Statute.

14. The main plank of arguments in the writ petitions and the appeals is that the
DDA being successor of Delhi Improvement Trust alone has the jurisdiction over the
land in question since their predecessor-in-interest had taken the land on lease from
the Delhi Improvement Trust. The plea of hostile discrimination has also been pressed
into service contending that there are various unauthorised buildings but buildings in
question are being singled out to suffer demolition. It has also been pointed out that
various buildings in Karol Bagh Zone are being put to commercial use though the
permissible user is residential. It has further been contended that the respondents are
debarred from taking any action in view of the resolution of DDA bearing No. 728
dated 24th December, 1965. Yet another contention is that there is acute shortage of
commercial accommodation and, therefore, a service is being rendered by construction
of these buildings and putting them for commercial use since the authorities have
failed to provide the commercial accommodation to meet the scarcity of commercial
accommodation.
15. Khurana, therefore, seeks a declaration that the land use of the property is not
exclusively residential and the property can be used for purposes other than
residential and the building is not liable to demolition and the land is outside the
jurisdiction of MCD and within the jurisdiction of DDA.
16. The appeals and the writ petitions have been resisted by MCD and DDA
(hereinafter collectively referred to as ‘Respondents’). The respondents have
contended that the appellants and the writ petitioners are not entitled to any
discretionary relief from this Court either in exercise of writ jurisdiction or while
dealing with appeals filed against orders refusing injunction. It is contended that both
jurisdictions are discretionary and equitable. It has been, inter-alia, submitted that
the owners/purchasers of the space in these buildings have been indulging in
speculative litigation by deliberate concealment with a view to mislead the Court and
obtain interim orders. It has been pointed out that though the plaintiff pleaded that
the building had been constructed as per sanction plan but now it stands admitted
that many floors have been unauthorisedly added and instead of residential a
commercial building has been constructed. It is also not disputed that the properties
as constructed cannot be put to residential use. It has further been submitted that
many of the petitioners purchased the buildings after MCD had initiated action against
the owners/builders for demolition of the property. The petitioners have deliberately
concealed from the Court various show cause notices as also the demolition order
passed by MCD in respect of the buildings in question and about the pendency of
various suits. They also point out that various purchasers
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Page: 320

have purchased the built up areas after the order of injunction had been passed. It has
been submitted that by order passed on 2nd November, 1994 in suits the Court
directed that the plaintiffs will neither induct any one nor create any third party
interests in the said properties. The MCD was given liberty to give a public notice of
the said order. The MCD by public notice issued in Times of India dated 9th November,
1994 apprised the public of the order and warned them that anyone acquiring the said
properties or any part thereof shall be doing so at his/her own risk. Inspite of the said
order the sale deeds in C.W.P. 5213, 5186, 5192, 5183 and 5205 of 1994 have been
executed after 2nd November, 1994. The respondents have also submitted that
admittedly buildings have been built in violation of not only the sanctioned plan but
also of the provisions of building bye-laws and instead of two storeyed building and a
barsati floor, in most of cases buildings upto 5 floors have been constructed and the
ground coverage has been extended upto 100% as against 40% allowed under the
Municipal Bye Laws. It has also been contended that the MCD is well within the
jurisdiction to take demolition action and as per Municipal Act and Bye Laws in relation
to the Union Territory of Delhi the permission under the Delhi Municipal Corporation
Act is required prior to raising the construction.

17. The exercise of jurisdiction under Article 226 is purely discretionary. Seldom
can a petitioner ask for it as of right. Writs are not issued as a matter of course. While
deciding a writ petition the Court can see which way the justice lies. This Court is not
obliged or bound to interfere in writ jurisdiction in every case where the order of the
authorities may be without jurisdiction. When it stands established and admitted that
the land use mentioned in the lease deeds is residential and the buildings have been
constructed in a manner that the same can be used only for commercial purposes and
also that there are unauthorised construction, instead of permissible two and a half
floors, about five floors have been constructed, a person would not be entitled to
approach this Court and invoke the writ jurisdiction to protect such unauthorised
construction, assuming one Statutory Authority (DDA) has jurisdiction over land
underneath and not the other (MCD), to initiate demolition action.
18. In an equitable jurisdiction it is the duty of the Court to preserve the public
good. The writ Court cannot protect the wrong. A person who seeks equity must do
equity. No one can be allowed to take advantage of his own wrong. A person who has
committed a wrong may not be heard by a writ Court in support of the plea that the
authority which is taking action against him has no power or jurisdiction and such
power vests in another Statutory Authority. The law breakers can be refused equitable
relief assuming they may have some case on merits. The writ Court can deny hearing
to such law breakers.
19. The petitioners have admitted that buildings have been constructed in a
manner that these can be used only for commercial purposes. The user as per terms of
lease is admittedly residential. The area and the floors constructed are many fold more
than the sanctioned plans and what is permissible as per building bye-laws. Insofar as
appellants i.e. Builders/owners are concerned, they had come to Court pleading that
the constructions were as per the sanctioned plans. Prima facie, on the basis of
voluminous material on record including the report of the local Commissioner on
inspection of the construction, the representations of the owners/

Page: 321
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builders made in pleadings have been found to be untrue. The powers of the Court
while dealing with injunction suits and the powers of the writ Court are discretionry
and equitable.

20. The Supreme Court in A.M. Allison v. B.L. Sen, AIR 1957 SC 227 declined to
decide the question of the jurisdiction of the Deputy Collector to entertain the claims
which were entertained by the said Officer. Observing that the order of the Deputy
Collector was subject matter of proceedings of the High Court under Article 226 of the
Constitution, the Supreme Court held that the writ proceedings are not of course and
the High Court had the power to refuse the writ if it was satisfied that there was no
failure of justice. The High Court had refused to interfere on the ground that there was
no failure of justice. The Supreme Court upheld the opinion of the High Court and also
declined to interfere. In present case though the petitioners have raised the plea of
want of jurisdiction of MCD to take demolition action but they have miserably failed to
show any failure of justice. There cannot be any failure of justice as it stands admitted
that the buildings cannot be put to residential use and the constructions do not
conform to the building bye-laws and sanctioned plans. Reference may also be made
to decision in Dahyabhai Somabhai v. Ramaji Kesraji, AIR 1971 Gujrat 232; holding
that even if order is without jurisdiction Court can refuse to issue writ if justice of the
case so demands. In Shiv Shanker Dal Mills etc. v. State of Haryana, AIR 1980 SC
1037; the Supreme Court speaking through Justice Krishna Iyer, held that in
proceedings under Article 226 of the Constitution granting or withholding of relief may
properly be dependent upon the public interest.
21. The public interest demands that the Court should not come to the aid of those
who break the law with immunity and put up commercial complexes on the land
meant admittedly for residential use. These complexes are put up and spaces
purchased for petty commercial considerations without any regard to the hardship and
inconvenience of other citizens.
22. Reference may also be made to the case of Sripat Narain Rai v. Board of
Revenue UP, AIR 1960 Allahabad 93 where it was held that mere fact that order was
without jurisdiction or there was error apparent on face of record was not sufficient to
justify issue of writ but in addition, it had to be established that the order had resulted
in injustice to the petitioner.
23. In the present cases the order of restraint against the authorities in respect of
buildings in question would rather result in injustice to the Society. There is no
question whatsoever of any injustice to the petitioners. The petitioners cannot have
any better rights than the builder/owners. It is also not conceivable that the
areas/spaces in the building would be purchased by making investment of huge
amounts without the purchasers knowing the land use in terms of the lease deed. It is
not even their case. In” passing it may also be noticed that most of the writ
petitioners and owners/builders are represented by same Counsel and the writ
petitions were filed during the pendency of the suits of builders/owners. The writ
petitioners as also appellants are not entitled to be heard that the MCD has no
jurisdiction and that the jurisdiction vests only with DDA. The owners/builders had
themselves got the plans sanctioned from MCD.
24. The contention that there are various other buildings in Karol Bagh Zone

Page: 322

which are not being demolished though unauthorised and, therefore, the action of the
respondents in directing demolition of the buildings in question is discriminatory and
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liable to be quashed, is also misconceived. The petitioners have placed on record
certain photographs and other material to show the existence of other unauthorised
buildings in Karol Bagh Zone. The offending buildings of the petitioners are also in
Karol Bagh Zone. Assuming there are other unauthorised buildings in the Zone still I
cannot accept the contention that other unauthorised buildings should be first
demolished and then alone the buildings of the petitioners should be touched.

25. The acceptance of the contention based on Article 14 of the Constitution would
mean perpetuating illegalities. No person can be permitted to take advantage of his
own wrong. The buildings in question have been constructed in violation of terms of
lease and building bye-laws and in contravention of sanctioned plans. It cannot be
said that first the action should be taken against other law breakers. Illegal action by
sanctioning plans contrary to bye-laws or non-action in other cases by not demolishing
other unauthorised buildings cannot be a ground to issue a writ in favour of the
petitioners taking shelter under Article 14. Article 14 has no application where action
is taken by authorities to remove one evil merely on the ground that no action has
been taken to remove other evils. Two persons may commit similar offence. There one
who is prosecuted cannot complain of violation of Article 14 on the ground that other
person has not been prosecuted. If permissible in law Court may also direct
prosecution or action against person who may have been left out but that would not be
a ground to quash prosecution or action against the person, against whom authorities
are taking action. The plea of discrimination cannot be put forth when the law is given
effect to. The denial of illegal favour cannot amount to discriminatory treatment
violative of principles of equality clause enshrined in Article 14 of the Constitution. A
wrong decision in favour of one person does not entitle any other person to claim
benefit on the basis of the said wrong decision. In short, there cannot be a right to be
illegally favoured on the ground that others have been so favoured. The petitioners
have to establish their right in law. The plea of discrimination, therefore, is rejected.
26. It is also contended that the respondents are guilty of picking and choosing and
for extraneous considerations have left out certain buildings from the rigour of
demolition and taken up other buildings for demolition action, again on account of
extraneous considerations and that buildings unauthorisedly constructed earlier should
be demolished earlier and constructed later should be demolished later in point of
time. If the principles of first come first go in the matters of demolition action in
respect of unauthorised building, is accepted, it would mean that pending action of
demolition against unauthorised construction already in existence, the authorities
should not take any action in respect of ongoing unauthorised construction and permit
such constructions to go on. This cannot be accepted. The principle of first come first
go, has no applicability. I am not suggesting that in respect of other unauthorised
constructed buildings action should not be taken. It is also true that if authorities had
taken necessary action at appropriate times the present state of unauthorised
construction would not have reached. It may be so but at the same time a beginning
has to be made at some point of time. It cannot be held that since over years
demolition action has not been taken and the entire city consists of

Page: 323

unauthorised construction, either beginning should not be made by taking demolition

action or first the old unauthorised buildings should be demolished. The authorities
are, however, directed to take prompt decisions regarding other unauthorised
buildings. I may also notice that neither resorting to demolition nor regularisation of
the buildings unauthorisedly constructed decades earlier results in encouraging
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avoidable corruption at various levels and, therefore, it is necessary for the authorities
to take a prompt decision.

27. The petitioners have no case even on merits.

28. The petitioner has not been able to establish that the lease in favour of his
predecessor was in pursuance of the provisions of an improvement scheme-sanctioned
under Section 42 of the U.P. Town Improvement Act. There is also nothing on record to
show that the improvement scheme was in existence in 1957 when Delhi Development
Act, 1957 was enacted.
29. Admittedly the lease deed stipulates that the land and building erected thereon
should not be used for any other purpose than for the purpose of residential bungalow
without the consent in writing of the lessor. It is not the case of anyone that such a
consent was obtained. Further, the deed provides that lease shall become void if the
land is used for any other purpose. Even if the contention of the petitioner is accepted
that the provisions of the lease have to prevail that would also show mat the lease
becomes void since the case of the petitioners is that the buildings have been
constructed in a manner that these can be used only for commercial purposes and not
for residential purpose.
30. The owners sought and obtained permission from MCD and got the plans
sanctioned for erecting a residential building. It is too late in the day for the
petitioners to contend that under a mistake of law the plans were got sanctioned from
MCD.
31. Reliance of the petitioners on resolution dated 24th December, 1965 passed by
Delhi Development Authority is also misconceived. The said resolution shows that the
Standing Committee, on consideration of the communication of Commissioner of
Municipal Corporation of Delhi to the effect that in number of areas premises intended
for residential purpose have been put to commercial use in contravention of provisions
of Master Plan, felt that as office accommodation in Delhi for governmental needs as
well as for private commercial uses is extremely short, it would not be feasible to
launch prosecution against property owners for putting residential premises to
commercial use in contravention of the provisions of the Master Plans until the present
position in that regard substantially improves. The Standing Committee—inter-alia,
recommended that positive steps should be taken for early development of District
Centres in Kalkaji and Pusa Road etc. so that shortage of office accommodation is
relieved to some extent. The resolution relied upon cannot be used to contravene the
municipal laws for all times to come. The resolution only shows mat keeping in view
the shortage of commercial accommodation in the year 1965 it was decided not to
prosecute the owners for misuser since, at that time, commercial centres had not been
built in the areas like Pusa Road and Kalkaji. There has been considerable change after
the year 1965. In Pusa Road area commercial complex by the name of Rajindra Place
has been constructed by DDA.

Page: 324

In Kalkaji area Nehru Place Commercial Complex has been constructed. The resolution
of 1965 does not give a right in perpetuity to violate the law.

32. Reliance of petitioners on the provisions of the Government Grant Act, 1985 is
also misconceived. The MCD by the threatened action is not interfering with the right,
title or interest of the petitioners or their predecessor-in-interest in respect of the land
on which unauthorised buildings have been constructed.
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33. In respect of blatant unauthorised constructions and misuser as in present
cases it cannot be said that the Commissioner of MCD has a discretion to order
demolition or not. Vesting of discretion in these circumstances would itself be arbitrary
and illegal.
34. I am in respectful agreement with the conclusions reached by brother
Ramamoorthy including the conclusion that the MCD has power to take demolition
action, while rejecting the contention of the petitioners and appellants that such a
power vests with DDA.
35. In the end, I regret to notice that despite warning and caution given by the
Apex Court and also this Court, from time to time, that stern action will be taken
against unauthorised constructions and misuse, these activities have gone on
unabated, without any let or hinderance and all the warnings have fallen on deaf ears
without any effect on the unscrupulous builders and purchasers of these spaces. It is,
therefore, necessary to once again send a message, loudly, clearly and firmly to all
those who indulge in such illegal activities that Courts will not come to the aid of
persons who indulge in such blatant unauthorised constructions and misuser of the
properties. It is also the duty of the Courts to examine these matters carefully before
granting injunction restraining demolition of such unauthorised constructions.
Ordinarily the Courts before issuing injunctions in such matters should insist upon
filing of the sanctioned plans and details about the existing structures to prima facie
find out whether the existing structures are in accordance with the sanctioned plan
and building bye laws etc. or not. The Courts may also consider appointment of
independent person to verify correctness of representations made about existing
structures as in many cases unauthorised constructions are raised after issue of
injunctions and in cover and garb of orders of injunction. The alarming nature of such
illegal activities can be controlled only by due cooperation from all citizens including
the Media and the Press. It is the duty of all to expose these law breakers. I hope the
Media would bring to the notice of public in general that unauthorised constructions
and misuser have been severely dealt with by this Court and henceforth also no
leniency would be shown in such matters. A copy of this judgment shall be sent
forthwith to Delhi Doordarshan and All India Radio. Everyone has to be told that such
unauthorised activities are against public interest. These activities have to be stopped
forthwith. If inspite of this warning any one indulges in such unauthorised construction
or misuse or in purchase of these unauthorised constructions he would be doing it at
his own risk and peril and would not be heard to say that he has made large
investments. I hope that atleast now this message would be taken with all
seriousness.
36. In view of the above, in my opinion, all the petitioners and appeals deserve
dismissal with costs quantified at Rs. 10,000/- in each case. These costs would be
utilised by M.C.D. for creating in a Special Cell which should be set up to curb

Page: 325

unauthorised construction and misuser of the immovable properties so that atleast a

beginning is made now to promptly check these illegal activities. The officials and
officers manning this Cell will have to be informed that any dereliction of duty would
be severely dealt with.

K. RAMAMOORTHY, J.— This is a Text Book example of law breakers attempting to

establish wrongs through process of law seeking the imprimatur this Court. This is the
meant of the matter.
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37. The concerned authorities had prepared plans regulating the construction of
buildings by virtue of powers conferred on them by various statutes. The whole
scheme of the Act, Rules, Regulations and Bye-laws is based on the thinking that
sense of the ordinary peace living in the city and its surroundings by modern men will
be shocked if structures are allowed to come up unregulated. One cannot ignore that
the object of the law is to instil orderliness in matters of public welfare and compel
public to conform to certain rules, the non compliance whereof will result itself in
dislocation of normal living which the rules are intended to assure to the people. The
local bodies are empowered to develop lands, to provide basic amenities, to dispose of
developed lands, to put up complexes, residential and commercial, according to the
needs and aspirations of the people. The development of Delhi was not a little owing to
the untiring efforts of DDA, MCD, National Capital Territory of Delhi and the Union of
India. Indeed, a great deal has been done and yet much more remains to be done.
The increase in population is in geometric progression in the country, influx of people
from all over the country into Delhi for eking out their livelihood possess stupendous
problems to the authorities and it is a matter of pride for the citizens of this country
that the authorities are ready and willing to face any challenge and act to meet the
demands of the people. Every effort is made to stimulate civic interest in people and
organised efforts are being made to make National Capital Territory of Delhi a
pleasant, green, orderly and beautiful place to dwell in.
38. It appears that a comprehensive scheme is on the anvil to develop satellite
cities to reduce congestion in the cities by setting up industries, providing
employment for people so that the clamour to move out of their place is not
encouraged. The main objective of the Act, Rules, Regulations and Bye-laws is to
provide decent living conditions for the people by making available to them power and
water supply, facilities for the discharge of sewerage which is essential for sanitary
condition without which people cannot maintain good health. It is relevant to notice
the preamble to Master Plan For Delhi 1990.
“Delhi, the locus of the socio-economic and political life of India, a symbol of
ancient values and present aspirations, the capital of the largest democracy, is
assuming increasing emmence amongst the great cities of the world. The City of
Delhi has a distinct personality imbibed in it, is the history of centuries. In its part
it has the grand vistas of New Delhi and the throbbing lanes of Shahjahanabad. It is
a gem with many facets.
Presently, growing at unprecedented pace, the city must be equipped to face the
contemporary challenges. It should be able to integrate its elegant past as well as
the modern developments into an organic whole. The inhabitants of this city should
be able to live in safe convenient and lively surroundings. They

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should be able to improve their economic capabilities and share the fruits of
modernisation. All this demands purposeful transformation of its socio-economic,
Natural and built environment.”

It is also observed—
“Delhi is increasingly becoming a focus of the developing world. A new Institute for
higher learning in the development planning mainly to deal with the planning and
development problems of the developing countries could be started in the city.
Such an Institute along with the research and training in the development problems
could have specialised departments of newly emerging fields, e.g. Energy, Ecology,
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Environment, Genetics, Computer Science and others.
It needs to be emphasised that the modernisation of the city is not to be in parts
but as a whole, not as limited actions in certain fields but as an attitude to decision
making. In the development of all the areas for urban activities i.e. housing,
commercial and industrial areas and areas for public facilities, the emphasis should
be on long range efficiency, futuristic view point and healthy environment for
sustaining a high quality of life.
Delhi has a distinct personality. In the process of modernisation the city along with
providing an environment of livability, performing functions of state and economic
efficacy, must reflect its personality through its form and through its activity in its
parts and as a whole.”
39. Laws are meant to be obeyed. They are made keeping in mind the welfare of
the entire community.
40. How could the builders could put up constructions in the National Capital
Territory of Delhi which should set an example to the other cities in the country and
how did the authorities concern permit such flagrant violations of law to take place
would really beggar all description. We can draw a lesson from the action of the
Housing Secretary in the U.S.A. The U.S. Housing Secretary Mr. Hindry Cisnerys, was
responding really to a healthy impulse by running down two young men while they
were trying to steal watches from a street vendor in Washington. The question which
Mr. Cisnerys asked after he had nabbed the two young men “What kind of citizens or
Government leader would I be if I did not try to help?
41. The petitioners are attempting to legalise illegal acts by filing these writ
petitions and the appeals, which is not non-pariel in all the Courts in the country.
42. I feel that the provisions in statutes, Rules, Regulations and Bye-laws do not
meet the demands of today's situation. The process has to be strengthened. The law
must be provided with more biting teeth and there must be genuine apprehension in
the mind of every person engaged in the real estate business that any infraction or
violation of laws would be visited with exemplary punishment, for, they spoil the
society and try to enthuse in the law abiding citizens that any violation would not be
taken cognizance of by the authorities and that they have the means to get round the
law. The law should also provide severe punishment for erring officers and
responsibility must be fixed on them. The officers should not only be aware that they
are the persons to implement the law but must also be conscious of the position that
in a welfare state it is the obligation of the state to ensure the creation and

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sustaining conditions congenial to good health of the people which is a sine-qua-non

for the progress of the country as a whole not only in the field of science and
technology but also in all spheres of human endeavours to meet the challenge,
particularly at this juncture, arising out of globolisation of everything under the sun.

43. It is argued on behalf of the petitioners that the authorities who could have
prevented, by qua-time action, as it were, by using their power, the builders from
commencing construction and according to the petitioners the officials concerned
connived and had been privy to the illegal act. According to the petitioners the canny
builders would not have the temerity to venture into illegal acts without the help of
the officials. It is regretable no doubt that prompt action had not been taken by the
officers concerned for reasons best known to them. It is a matter for the powers that
be to take such action as they deem fit against officers who had committed the
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wrongs. Unless stern measures are taken against the officials who are guilty of such
serious misdemeanours, Government cannot maintain the purity of administration. The
indolence on the part of the concerned authorities has spawned the unauthorised
constructions. However, that cannot clothe the petitioners with any right to approach
this Court seeking protection for their illegal acts. It cannot be gain said that the
provisions are made to regulate the building construction for the safety, health and
well being of the inhabitants. We cannot imagine a situation if such laws are not
made. There will be utter confusion and chaos and we would revert to the stonage
civilization where might was right when there were no laws governing the affairs of
men. We have to remember the famous words of an English Judge “amongst many
other points of happiness and freedom which subjects enjoy there is none which they
have accounted more dear and precious than this, to be guided and governed by
certain rules of law which give both to the head and members that which of right
belongeth to them and not by any arbitrary or uncertain form of Government.”
44. Therefore, law is a must for an orderly society.
45. The petitioners would contend that they have built complexes, buildings for the
sake of the people as there is acute accommodation for both residentials and non
residentials and the respondents cannot have any objection and instead of seeking to
demolish the building they should regularise them. The sleight hands and vile minds
would try to act in defiance of law on the premise that the law is not enforceable
against them. The persons who can command some money and power tend to commit
such offences with calculations and evil designs with the only motive of personal profit
without any concern for the wellbeing of the community at large and future of the
country. The petitioners assert that they have not committed any wrong because their
contention is that DDA is the successor-in-interest of Delhi Improvement Trust the
Rules and Regulations will be entirely different. I am reminded of the words of Hary
Jones in Efficiency of Law in this behalf “there are many mansions in the House of
Jurisprudence and I would not be little in one's perspective of law in society provided
only that he does not insist that he is the only perspective that gives a true and
meaningful view of ultimate legal reality.” The petitioners would contend that their
action is the only thing that is acceptable in the present situation and their action
cannot at all be characterised as anything contrary to law.

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46. The Supreme Court on more than one occasion has noticed that there has been
steady decline in standard in public life and it is hoped that those who are in power
have in the fore front of their minds the welfare and well being of the country that
people with sense of patriotism and sacrifice would emerge in public life.

47. The petitioners not being successful in their endeavour to get over the
difficulties have approached this Court on the specious plea of discrimination by the
respondents.
48. It is submitted on behalf of the respondents that the petitioners have no legal
right to make a grievance. There must be judicially enforceable right as a legally
protected right.
49. The Supreme Court has very forcefully observed about the powers of the Court
in A.I.R. 1981 S.C. 625 “The writ must right the wrong forthwith or must stand self
condemned as make believe.”
50. And, therefore, the writ cannot protect the wrong. It is the duty of the Courts to
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preserve public good and interdict misuse of powers and position. The Supreme Court
has given the guidance by stating that scanning must be done through the objective
lens of the Court representing the collective conscience of the community and not
through the tingedlens of wrong doers whose economic interest may be prejudicially
effected by the provisions of law. In other words, the Court examining the matter,
from the perspective of the constitutional mandate armed with the criterion of the
objectivity and over all interest of the community at large, must be satisfied.
51. I would like to recall the observations of the House of Lord in 1961 Vol. I All
England Reports 446 “I entertain no doubt that there remains in the Courts of law a
residual power to enforce the supreme and fundamental purpose of the law, to
conserve not only the safety and order but also the moral welfare of the state and it is
their duty to guard it against attacks which may be more insidious because they are
novel and unprepared for”.
52. Bearing in mind these canons and principles, I proceed to consider the
respective contentions of the parties.
53. The learned Counsel for the parties argued their cases with skill and ability and
but for their valueable assistance it would not have been possible for us to come to a
clear vision of facts and law. I am bound to place on record my sincere appreciation of
their industry and forensic ability to focus our attention to the core of the matter.
54. The Supreme Court has time and again laid down the parameters of the
jurisdiction of the High Court sitting under Article 226 of the Constitution of India to
give reliefs to the litigant public. The High Courts, therefore, have to act within that
sphere of jurisdiction as laid down by the Supreme Court of India.
55. Mr. P.N. Lekhi, learned Senior Counsel formulated his points. His submission
was five fold; (1) The MCD has no jurisdiction to take any proceedings with reference
to building in question under Sections 343 and 344 of Delhi Municipal Act, 1957.
Chapter VI of the Delhi Municipal Act over Nazul Lands does not apply; (2) in view of
the provisions of Section 60 of the Delhi Development Act, 1957 read

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with provisions of U.P. Town Improvement Act, 1919 the authority in relation to
sanction plans, issue orders regarding demolition would rest only with DDA; (3)
Section 12 of the Delhi Development Act, 1957 should be in relation to Nazul Land as
if Nazul Lands are included and form part of development area; (4) impugned notice of
demolition to the owner or builder is bad in law on the following subsidiary grounds:—

(a) Without jurisdiction;

(b) If there was authority it was obvious of authority and in excess of authority is
ultra vires;
(c) Discretionary power is not a discriminatory power and the Municipality or
Corporation cannot choose the buildings for demolition when there is more than
two lakhs buildings unauthorisedly constructed.
(5) In view of the resolution dated 24.12.65 the threat of demolition is bad in law
and the resolution makes the area a commercial area.
56. Learned Counsel referred to the agreement dated 31.3.1937 between the
Secretary of State and between Delhi Improvement Trust. He explained the concept of
Nazul Lands referring to (a) Aiyer's Judicial Dictionary XIth Edition, D.D. Act by R.K.
Yadav 1987th Editiion page 113, Section 84(2) of Delhi Land Revenue Act, 1954, Rule
233 Delhi Land Revenue Rules, 1962, Rule 237 where the DDA is to maintain two
Registers, Register B and Register A; (b) Section 22 of the Delhi Development Act
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1957 and guidelines issued by Land Management published by D.D.A. on 27.1.1992.
57. The learned Counsel relied upon Chauthmal v. The State of Rajasthan, A.I.R.
1967 Rajasthan 179. In that case Nazul Land is defined under Section 3(i)(b) of the
Rajasthan Land Revenue Act, 1956. It is defined as “means Abadi land within the
limits of the municipality or a Panchayat circle or a village, town or city, vesting in the
State Government.” Section 102A of the Act gives power to the State Government to
place any Nazul land at the disposal of a local authority. Section 8(1) of the Rajasthan
Municipality Act provides that if sale price exceeds Rs. 500/- approval of the Collector
is necessary i.e. sale by public auction by the local Authority. The Municipality sold the
land in question in public auction to the petitioner in the writ petition for Rs. 801/-.
The 4th respondent in the writ petition Smt. Kanwari Bai filed a petition before the
Collector to set aside the sale and for a direction to the Municipality to sell the land to
her by virtue of the fact that she is an adjoining owner of the land sold in public
auction. Section 97 of the Rajasthan Municipality Act mentions such a right to the
adjoining owner of a plot in the control of the Municipality in case it is sold by it. The
Collector set aside the sale in favour of the petitioner and recommended the sale of
the land to the 4th respondent under the provision of Section 97 of the Act.
58. The State Government accepted the recommendation of the Collector and set
aside the sale in favour of the petitioner and directed the sale in favour of the 4th
respondent and directed Municipal Board Merta to sell the plot to Smt. Kanwari Bai in
accordance with the Government notification. This was challenged by the writ
petitioner in the High Court. Section 80(7) of the Rajasthan Municipality Act provide
that for the execution of the contracts on behalf of the Municipal Boards and

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according to the petitioner the Municipal Board was within its powers to execute a sale
deed and no approval of the Collector is necessary. In other words, argument was,
that the land belonged to the Municipality by virtue of the vesting order passed by the
Government and it was no longer a property of the Government and, therefore, no
approval need be obtained by the Municipality from the Collector.

59. The argument on behalf of both the respondents was that a special provision
was made for Nazul lands and the ownership was still retained by the Government and
in view of the special provision in Section 80(1) of the Act approval of the Collector is
necessary. In this connection, the learned Single Judge observed “Section 92(2)
mentions the properties managed and controlled by the Boards in two classes; (i)
properties which vest in and belong to the Board; and (ii) properties which vest in the
Board but did not belong to it. Nazul lands placed at the disposal of the Board under
notification of 8.10.1959 belong to the second class. They vest in the Board but
belonged to Government. In view of the decision of Their Lordships of the Supreme
Court referred to above there is no reason to hold that these lands” do not vest in the
Municipal Boards. I accordingly hold that the Nazul lands placed at the disposal of the
Boards under notification dated 8.10.1959 vest in the Municipal Board but do not
belong to it”.
60. The learned Sr. Counsel relied upon the decision of the Supreme Court in The
Fruits & Vegetable Merchants Union v. Delhi Improvement Trust, A.I.R. 1957 S.C. 344.
Their Lordships of the Supreme Court were pleased to observe “that the word ‘vest’ is
a word of variable import is shown by the provisions of Indian Statute also. It would
thus appear that the word vest has not got a fixed connotation meaning any of cases
that the property is owned by the persons or authority in whom it vests. It may vest
title or it may vest in possession or it may vest in a limited sense, as indicated in the
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context in which it may have been used in a particular piece of legislation.” The
argument of the learned Counsel is that the Nazul lands never vested either in
possession or in title with the Municipal Corporation of Delhi and, therefore, Municipal
Corporation of Delhi has no jurisdiction to take any action in respect of the alleged
violation of the bye laws in respect of the construction made by the petitioners or the
owners or builders. The learned Counsel referred to the decision in Vishal Builders (P)
Ltd. v. Delhi Development Authority, ILR (1977) I Delhi 724. The DDA advertised for
perpetual lease with reference to plots of land in District Centre Kalkaji, which is now
called Nehru place. The petitioner bid at the auction and paid the money also.
Sometime later on the ground that the plots of land were not suitable for putting up
multi-storeyed building retracted from the deal. The DDA returned only a part of the
amount. In respect of the balance, the builder filed a suit for recovery of the amount.
The suit was decreed. While deciding the case the learned Single Judge has referred to
the nature of the land vide pages 740 to 742. The land was Nazul land. The learned
Judge expressed the view that the ultimate authority with reference to land is Central
Government and when no rules have been framed by the Government and, therefore,
DDA cannot do anything. Ultimately, the learned Judge directed the DDA to return the
entire amount to the petitioner. This case is relied upon by the learned Counsel to
show that if the land is Nazul land, M.C.D. has no jurisdiction to do anything with
reference to the land including the question whether the construction made by the
petitioner or his predecessor is valid or not. The learned Counsel further submitted
that if DDA

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takes any steps the petitioner will be prepared to give a suitable answer. Referring to
Section 42 of the U.P. Town Improvement Act, 1919, it was contended that the nazul
lands came to be brought under the statutory scheme. Section 42 reads as follows:—

“Notification of sanction of improvement scheme—(1) Whenever the [State

Government] sanctions an improvement scheme it shall announce the fact by
notification, and, except in the case of a deferred street scheme, development
scheme, or town expansion scheme, the Trust shall forthwith proceed to execute
the same.
(2) The publication of a notification under Sub-section (1) in respect of any scheme
shall be conclusive evidence that the scheme has been duly framed and
sanctioned.”
61. He referred to Clause 4 of the agreement dated 31.3.1937 between the
Secretary of Delhi State and Delhi Improvement Trust. Clause 4 of the agreement
reads as follows:—
“(4) The Trust may, sell or lease any land included in the said Nazul Estate in
pursuance of the provisions of an Improvement Scheme sanctioned under section
42 of the Act.”
62. The learned Counsel contended that relying on the words ‘in pursuance of’ that
the lease in favour of the predecessor in interest was in pursuance of the scheme
framed and, therefore, we are governed only by what has happened under the scheme
of the Act and we have to consider who are the successors-in-interest. For this
purpose, the learned Counsel brought to our notice the case “The Trustees of Port of
Bombay v. The Premier Automobiles Ltd., (1974) 4 SCC 710. What happened in that
case was the respondent Premier Automobiles Ltd. imported certain goods and later on
the respondent made a claim against the Port Trust with reference to the goods
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imported by it. The Port Trust took a plea that the claim was barred by time under
Section 87 of the Port Trust Act, which is reproduced as under:—
“Sec. 87. No suit or other proceeding shall be commenced against any person for
any thing done, or purporting to have been done, in pursuance of this Act, without
giving to such person one month's previous notice in writing of the intended suit or
other proceeding, and of the cause thereof, nor after six months from the accrual of
the cause of such suit or other proceeding.”
63. It was contended on behalf of the respondent-plaintiff that whenever there is
an act of negligence on the part of the Port that cannot be said to be in pursuance of
the Act and, therefore, it would be open to the Port Trust to take the plea of limitation.
In other words, the contention was that the question of limitation under Section 87
would arise only if something done validly by the authorities under the provisions of
the Act and not when there is a grossomission on their part to do something which
they are obliged to do under the provisions of the Act.
64. The Supreme Court dealt with this aspect at page 718 in paragraph 10 in the
following words:—
“A cognate point arises as to whether you can attribute the neglect to comply

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with a law as something done in pursuance of that law. Hence again the fallacy is
obvious. If under colour of office, clothed with the robes of authority, a person
indulges in conduct not falling under the law he is not acting in accordance with the
sanction of the statute or in bona fide execution of authority but ostensibly under the
cloak of statute. It is the apparel that oft proclaims the man and whether anything is
done under, in pursuance of, or under colour of a law merely means that the act is
done in apparent, though not real, cover of the statute. Broadly understood, can the
official when challenged fall back, in justification, on his official trappings? A Revenue
Officer distraining goods wrongfully or a municipal officer receiving license fee from a
non-licensee is violating the law but purports to act under it. On the other hand, a
Police Officer who collects water cess or a Municipal Officer who takes another into
custody, is not by any stretch of language acting in pursuance of or under the relevant
Act that gives him power. And certainly not an act of taking bribe or committing rape.
Such is the sense of the words we are called upon to construe. The true meaning of
such and similar words used in like statues has been set out by Halsbury correctly and
concisely (3rd edn., Vol. 24, pages 189-190):

An act may be done in pursuance of or in the execution of the powers granted by a

statute, although that act is prohibited by the statute. A person acting under
statutory powers may erroneously exceed the powers given, or inadequately
discharge the duties imposed, by a statute, yet if he acts bona fide in order to
execute such powers or to discharge such duties, he is considered as acting in
pursuance of the statute. Where a statute imposes a duty, the omission to do
something that ought to be done in order completely to perform the duty, or the
continuing to leave any such duty unperformed, amounts to an act done or
intended to be done within the meaning of a statute which provides a special period
of limitation for such an act.”
The Supreme Court further held at page 728 as under:—
“The dichotomy between act and omission, however, logical or legal, has no
relevance in this context. So the intendment of the statute certainly takes in its
broad embrace all official action, positive and negatives, which is the operative
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cause of the grievance.
Although the Act, in the present case, uses only the expression ‘act’ and omits
‘neglect or default or omission’, the meaning does not suffer and if other statutes
have used all these words it is more the craftsman's anxiety to avoid taking risks in
Court, not an addition to the semantic scope of the word ‘act’. Of course, this is the
compulsion of the statutory context and it may well be that other enactments,
dealing with different subject-matter, may exclude from an ‘act’ in the various
General Clauses Act, as including ‘illegal omissions’. The leading case of Jolliffee v.
The Wallasey Local Board (supra) decided nearly a century ago has stood the test of
time and still current coin, and Stroud) Stroud's Judicial Dictionary; 3rd edn. Vol. 1;
page 877) has extracted its ratio thus:
An omission to do something which ought to be done in order to complete
performance of a duty imposed under a public body under an Act of

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Parliament, or the continuing to leave any such duty unperformed, amounts. to ‘an act
done or intended to be done’ within the meaning of a clause requiring a notice of
action (Joliffee v. Wallasey, L.R. 9 C.P. 62).”

65. The argument is that by virtue of Clause 4 in the agreement whatever done in
favour of the lessees by the Delhi Improvement Trust in pursuance of the scheme
would confer them the rights as contemplated under the U.P. Town Improvement Act,
1919 and the Trust would be under the same obligations as enumerated in that Act. It
is contended that Delhi Improvement Trust was acting within the powers conferred
under the Act and in pursuance of the Act. The inference further made is that Delhi
Improvement Trust was the precursor and the predecessor of D.D.A. and, therefore,
M.C.D. does not come into picture. This has to be considered in the light of the
statutes which were brought into force in 1957 which I shall be dealing with presently.
Another facet of the argument of the learned Counsel is that the DDA is the
‘reincarnation’ of Delhi Improvement Trust and it is an independent body like the MCD.
The force and ambit of statutory provisions cannot be hampered or hedged in by any
features not recognised by and referred to in the statute. It is a reasoned doctrine
recognised right from, Her Majesty The Queen v. Burrah, Law Report Appeal Cases,
(1878) Vol. III (P.C.) 889, which is recognised, applied and approved by the Supreme
Court and High Courts in India. Reference was made to Section 49 of the U.P. Town
Improvement Act, 1919, which refers to the provisions of U.P. Municipality Act, 1916
and Section 49 reads as follows:—
“49. Powers under the Municipalities Act vested in the Trust.—(1) The
provisions of Sections 178 to 186, 189 to 194, 203 to 216, 218 to 224, 236, 256,
257, 261, 265, 266, 267 (except in respect of cleansing and disinfecting), 268 to
270 and 278 of the Municipalities Act shall, so far as may be consistent with the
tenor of this Act, apply to all areas in respect of which an improvement scheme is in
force; and for the period during which such scheme remains in force all references
in the said sections to the board or to the Chairman, or to any officer of the board,
shall be construed as referring to the Trust which, in respect of any such areas, may
alone exercise and perform all or any of the powers and functions which under any
of the said sections might have been exercised and performed by the board or by
the Chairman or by an officer of the board:
Provided that the Trust may delegate to the Chairman or to any officer of the Trust
all or any of the powers conferred by this section.
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(2) The Trust may make bye-laws for any area comprised in an improvement
scheme which is outside the limits of the municipality—
(a) generally for carrying out the purpose of this Act, and
(b) in particular and without prejudice to the generality of the aforesaid powers
the Trust may make bye-laws regarding any of the matters referred to in
Section 298 of the Municipalities Act.
(3) The provisions of Sections 299 and 301 of the Municipalities Act shall, so far as
may be consistent with the tenor of this Act, be applicable to all bye-laws made
by a Trust under this sub-section, and all references in the said section to the
board shall be construed as referring to the Trust.”

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66. The argument is that by virtue of provisions of Section 49 the Trust shall exercise
all powers of the Municipal Council in respect of areas coming in its purview. Learned
Counsel also relied on the Section 32 of the U.P. Town Improvement Act, 1919. That
section reads as follows:—

“32. Town expansion scheme.—(1) Whenever the Trust is of opinion that it is

expedient and for the public advantage to control and provide for the future
expansion of a municipality in any area to which this Act is extended, the Trust may
frame a scheme (to be called a “town expansion scheme”).
(2) Such scheme shall show the method in which it is proposed to lay out the area
to be developed and the purposes for which particular areas are to be utilized.
(3) For the purposes of town expansion scheme the provisions of Clause (a) of Sub-
section (2) of Section 40 shall not be applicable, but the Trust shall be required
to supply such details as the [State Government] may consider necessary.
(4) When any such scheme has been notified under Section 42, if any person
desires to erect, add to or alter any building or wall within the area comprised in
the said scheme, he shall apply to the Trust for permission to do so.
(5) If the Trust refuses to grant permission to any person to erect, re-erect, add to
or alter any building or wall on his land in the area aforesaid, and if it does not
proceed to acquire such land within one year from the date of such refusal, it
shall pay reasonable compensation to such person for any damage sustained by
him in consequence of such refusal.
67. Referring in particular to Sub-section 4 of Section 32 the learned Counsel
submitted that if within the area under the control of the Trust one wanted to put up
any construction one had to apply to Trust for permission. Therefore, the DDA being
the alter ego of Delhi Improvement Trust and the only authority competent to grant
permission to build and sanction plan with reference to Nazul lands is DDA and MCD
has no jurisdiction over the matter. In this connection, the learned Counsel referred to
the pleadings in paragraphs 9 and 10 of the Writ Petition No. 4545/94 and submitted
that the averments in these two paragraphs have not been traversed by the MCD and,
therefore, they are deemed to have been admitted by them. It was repeatedly pointed
out by the learned Senior Counsel that the DDA has not filed any counter though DDA
made it clear it was adopting the counter of the MCD. We have to consider what is the
effect of the averments of paragraphs 9 and 10 vis-a-vis the position of law emerging
after the enactment of two Acts, Delhi Municipal Corporation Act and Delhi
Development Act in the year 1957. According to the learned Counsel development
area is different from Nazul lands. It is significant, according to learned Counsel, while
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provisions are made to Nazul lands in D.D. Act nothing is mentioned in D.M.C. Act and
the N.D.M.C. Act, 1994. Therefore, he requested us to have in mind the difference
between the Nazul lands and the other lands. On the basis of his argument, he wants
us to accept that on the date of coming into force of the two Acts the Nazul lands
were, and could be dealt with only by Delhi Improvement Trust and other lands were
dealt with under the Act applicable to the respective areas. Learned Counsel further
submitted that the provisions in

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the D.D. Act, 1957 themselves would maintain the difference and on a correct reading
and interpretation of the relevant provisions it will be clear that what he contends for
is correct in law. The learned Counsel for the petitioners brought to our notice Section
60 of the D.D. Act, 1957. Section 60 reads as under:—

“Sec. 60. Repeal, etc. and savings.

(1) As from the date of the constitution of the Authority,—
(a) the United Provinces Town Improvement Act, 1919 (U.P. Act VIII of 1919),
shall cease to have effect in the Union Territory of Delhi; and
(b) the Delhi (Control of Building Operations) Act, 1955, shall stand repealed.
(2) Notwithstanding the provisions of Sub-section (1)—
(a) every officer and other employee serving under the Delhi Improvement Trust
or the Delhi Development (Provisional) Authority immediately before the date
of the constitution of the Authority shall, on and from such date, be
transferred to and become an officer or other employee of the Authority with
such designations as the Authority may determine and shall hold office by the
same tenure, as the same remuneration and on the same terms and
conditions of service as he would have held the same if the Authority had not
been constituted, and shall continue to do so unless and until such tenure,
remuneration and terms and conditions are duly altered by the Authority:
Provided that any service rendered by any such officer or other employee
before the constitution of the Authority shall be deemed rendered to be
service thereof under it:
Provided further that the Authority may employ any such officer or other
employee in the discharge of such functions under this Act as it may think
proper and every such officer or other employee shall discharge those
functions accordingly;
(b) anything done or any action taken (including any appointment, delegation,
notification, order, scheme, permission, rule, bye-law, regulation or form
made, granted or issued) under any of the aforesaid Acts, shall, so far as it is
not inconsistent with the provisions of this Act, continue in force and be
deemed to have been done or taken under the provisions of this Act unless
and until it is superseded by anything done or any action taken under the said
provisions;
(c) all debts, obligations and liabilities incurred, all contracts entered into and all
matters and things engaged to be done by, with or for the Delhi Improvement
Trust or the Delhi Development (Provisional) Authority shall be deemed to
have been incurred, entered into or engaged to be done by, with or for the
Authority;
(d) all properties movable and immovable vested in Delhi Improvement Trust or
the Delhi Development (Provisional) Authority shall vest in the Authority;
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(e) all rents, fees and other sums of money due to the Delhi Improvement Trust or the
Delhi Development (Provisional) Authority shall be deemed to be due to the Authority;

(f) all suits, prosecutions and other legal proceedings instituted or which might
have been instituted by, for or against the Delhi Improvement Trust or the
Delhi Development (Provisional) Authority may be continued or instituted by,
for or against the Authority.”
68. Relating to the scope of the law of Repeal he brought to our notice the passage
at page 116 in Maxwell Interpretation of Statutes, 12th Edn. which is as under:—
“Few principles of statutory interpretation are applied as frequently as the-
presumption against alterations in the common law. It is presumed that the
Legislature does not intend to make any change in the existing law beyond that
which is expressly stated in, or follows by necessary implication from, the language
of the statute in question. It is thought to be in the highest degree improbable that
Parliament would’ depart from the general system of law without expressing its
intention with irresistible clearness, and to give any such effect to general words
merely because this would be their widest, usual, natural or literal meaning would
be to place on them a construction other than that which Parliament must be
supposed to have intended. If the arguments on a question of interpretation are
“fairly evenly balanced, that interpretation should be chosen which involves the
least alteration of the existing law.”
69. The scheme of the Act is that on the date of the constitution of the authority
the scheme under the U.P. Town Improvement Trust, 1919 would continue to be
operative with reference to Nazul land because it is not inconsistent with the
provisions of D.D. Act, 1957. And as the lease entered into between Delhi
Improvement Trust and the lessees from whom the petitioners claim a right in relation
to the Nazul lands would be intact and they remained undisturbed and they have to be
governed by as per the scheme as it existed as on the date of the Act. Therefore,
according to learned Senior Counsel, the D.D. Act draws a line of demarcation which is
bright and discernible maintaining the dichotomy between Nazul lands and other
lands. In support of his contention that the position of law as contended for by him is
supported by Craies in his book 7th Edn. page 355, which reads as under:—
“The general rule as to the way in which repealing sections are to be regarded by
the Courts was well expressed in Hough v. Windus. In that case a question arose as
to the effect of Bankruptcy Act, 1883, upon the Statute of Westminster the Second
(13 Edw. 1, c. 18) and writs of elegist, Bowen L.J. said “It appears to me that the
answer to this somewhat formidable argument [upon Sections 146 and 169 of the
Act of 1883] is to be found in a study of the framework of the Bankruptcy Act, 1883
so far as it works a repeal of previous legislation.”
70. The argument is that the framework of the D.D. Act has to be carefully
considered to appreciate his submissions. He also referred to a passage in Francis
Bennion 1992 2nd Edn. Section 85 page 201, which is as follows:—
“(1) To ‘repeal’ an Act is to cause it to cease to be a part of the corpus juris

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or body of law. To ‘repeal’ an enactment is to cause it to cease to be in law apart of the

Act containing it.

(2) A repeal may be either express or implied.

(3) The repeal of an enactment constitutes the amendment of the Act containing it.
Accordingly the rules applicable to amendments set out in Code ss 77 to 83 may
also apply to a particular repeal.
(4) An Act or provision of an Act may be repealed in the same Session of Parliament
in which the Act was passed.”
71. According to the learned Counsel we have to see what is scope of repeal and
what it is that the Act intended to say that the provisions of the other Act referred to
would cease to have a effect. The Counsel persisted, and said that the width of the
repeal has to be borne in mind. To further gain strength for his submission, he relied
on two passages in Halsbury's Laws of England, 4th Edn. Vol. 44 page 539 para 883
and page 543 para 888, which are as under:—
“883. Saving clauses.—Saving clauses are used in a statute to preserve earlier
statutes which would otherwise be repealed by it, or rights which would otherwise
be abrogated by it. A saving clause cannot be taken to give any right which did not
exist already. It can only preserve things which were actually existing at the time of
its enactment, and therefore cannot affect transactions complete at the date of the
repealing statute.
Where an enactment is subject to an express saving for certain rights, it may be
implied that the enactment is intended to abrogate other rights not expressly
mentioned.
A saving clause from a repeal, unlike an exception to a positive enactment, is
liberally construed.
888. Construction of statute by reference to later statutes. The meaning of the
earlier of two statutes in pari materia cannot generally be ascertained by looking at
what is enacted in the later one, even where the two statues are directed to be
construed as one. It has been said that the beliefs or assumptions of those who
frame Acts of Parliament cannot make the law. However, the position may be
different where the later statute amends the earlier one or purports to declare its
meaning. Further, where the interpretation of a statute is obscure or ambiguous or
readily capable of more than one interpretation, light may be thrown on the true
view to be taken of it by the aim and provisions of a subsequent statute. Where a
far-reaching change in the law is enacted in a particular field, it is possible,
inappropriate instances, that the Court will construe earlier legislation as a part of a
new whole and give it a broader interpretation than would formerly have been
proper.”
72. The learned Counsel wants us to consider what is saved by Section 60 of the
D.D. Act. According to the learned Senior Counsel, the earlier statute U.P. Town
Improvement Act, 1919 and Punjab Municipal Act to the extent necessary are saved
and, therefore, it is in this light the right of MCD to issue the notice has to be
considered. The thrust of the argument is that Nazul lands would be under the control
of DDA and not MCD but referring to saving clause what the learned

Page: 338

Counsel intended to submit is that the repeal Act would be applicable to the lands in
question. Prima facie, the contention appears to me very contradictory. The argument
should run complementary to the earlier argument that in the place of Delhi
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Improvement Trust; Delhi Development Authority would come in but the argument
should not in derogation of it saying that repeal Act is saved would apply to the lands
in question. There is some mixing up of concept relating to repeal and saving. Learned
Counsel suggested in amplifying his submission that Section 12 of the D.D. Act should
be read as he feels it should be. Section 12 reads as follows:—

“12. Declaration of development areas and development of land in those and other
areas.
(1) As soon as may be after the commencement of this Act, the Central
Government may, by notification in the Official Gazette, declare any area in Delhi
to be a development area for the purposes of this Act:
Provided that no such declaration shall be made unless a proposal for such
declaration has been referred by the Central Government to the Authority and
the Municipal Corporation of Delhi for expressing their views thereon within thirty
days from the date of the receipt of the reference or within such further period as
the Central Government may allow and the period so specified or allowed has
expired.
(2) Save as otherwise provided in this Act, the Authority shall not undertake or
carry out any development of land in any area which is not a development area.
(3.) After the commencement of this Act no development of land shall be
undertaken or carried out in any area by any person or body (including a
department of Government) unless,—
(i) where that area is an area other than a development area, approval of, or
sanction for, such development has been obtained in writing from the local
Authority concerned or any officer or Authority thereof empowered or
authorised in this behalf, in accordance with the provisions made by or under
the law governing such Authority or until such provisions have been made, in
accordance with the provisions of the regulations relating to the grant of
permission for development made under the Delhi (Control of Building
Operations) Act, 1955 (53 of 1955) and in force immediately before the
commencement of this Act:
Provided that the local Authority concerned may [subject to the provisions of
Section 53A] amend those regulations in their application to such area.
(4) After the coming into operation of any of the plans in any area no development
shall be undertaken or carried out in that area unless such development is also in
accordance with such plans.
(5) Notwithstanding anything contained in Sub-sections (3) and (4) development of
any land begun by any department of Government or any local Authority before
the commencement of this Act may be completed

Page: 339

by that department or local Authority without compliance with the requirements of

those sub-sections.”

73. In particular, he would say that Sub-section 2 should be read as follows:—

“Sub-section 2 of Section 12—Save as otherwise provided in the Act, the Delhi
Improvement Trust shall not undertake or carry out any development of land in
any area which is not a development area.”
74. This is to demonstrate that the Act saves the lands under the jurisdiction of
Delhi Improvement Trust from MCD. In this connection, the learned Counsel brought
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to our notice the case Schulte v. Gangi, 1945 90 Law Edn. 1114 and referred to
dissenting view by Frankfurter, J. in the following words:—
“For purposes of judicial enforcement, the “policy” of a statute should be drawn out
of its terms, as nourished by their proper environment, and not, like nitrogen, out of
the air.”
75. Armed with this passage, the argument is that the position of law on the date
of the D.D. Act should be kept in mind. Next the learned Senior Counsel referred to
Section 6 of the General Clauses Act, 1897, which reads as under:—
“6. Effect of repeal.—Where this Act, or any [Central Act] or Regulation made
after the commencement of this Act, repeals any enactment hitherto made or
hereafter to be made, then, unless a different intention appears, the repeal shall
not—
(a) revive anything not in force or existing at the time at which the repeal takes
effect; or
(b) affect the previous operation of any enactment so repealed or anything duly
done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred
under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence
committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right,
privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted,
continued or enforced, and any such penalty, forfeiture or punishment may be
imposed as if the repealing Act or Regulation had not been passed.”
76. The argument is that the rights accrued to the lessees could not be taken away
and the lessees cannot be brought under the control of MCD which is not the
intendment of the Act, especially when two acts are brought into the Statute Book
more or less simultaneously. He relied on the decision P.N. Balasubramanian v. Union
of India, ILR (1976) I Delhi 506. In this case, with reference to an act done by the writ
petitioner when the Foreign Exchange Regulation Act, 1947 was in force, proceedings
were initiated after the coming into force of the Foreign Exchange Regulation Act,
1973, the argument was that the authorities cannot take

Page: 340

any action against the petitioner under the new Act. Reliance was placed in paragraph
8 on the judgment and the same reads as follows:—

“The assumption behind Shri Garg's argument regarding the effect of the provisions
of Section 6 of the General Clauses Act is that the provisions of the repealed Act as
such are continued in force even after the repeal and that the operation of the
provisions of the repealing Act is barred. This is not borne out by the language of
Section 6. For Section 6 does not save the provisions of the repealed Act as such. It
“only saves the rights and liabilities which have accrued thereunder. All it ensures is
that these rights and liabilities would be enforced notwithstanding the repeal. For
this limited purpose it is not necessary to invoke the aid of the repealed Act as
such. For, the rights and liabilities may be such that they can been forced under the
repealing Act itself. Even when the repealing Act is inconsistent with the
enforcement of these rights and liabilities, Section 6 would save the operation of
only those parts of the repealed Act the operation of which beyond the date of
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repeal is necessary to give effect to these rights and liabilities. In understanding

Section 6 of the General Clauses Act, therefore, the first distinction to be made is
between the provisions of the repealed Act as such and the rights and liabilities
which have accrued when that Act was in force, i.e., events or transactions or facts
as distinguished from law or the provisions of the repealed statute.”
77. This Court negatived the contention that by virtue of Section 6 of the General
Clauses Act the jurisdiction of the authorities came to an end after the coming into
force the Foreign Exchange Regulation Act, 1973. The passage relied upon by the
learned Senior Counsel hardly supports the petitioners.
78. The learned sr. Counsel then referred to the decision Qudrat Ullah v. Municipal
Board, Bareilly, (1974) 1 SCC 202. The facts of this case need not be narrated in
detail. The Municipal Board was owner of the property. By some arrangement the
appellant before the Supreme Court was put in possession of the property. The point
was whether the arrangement was a lease or as a licence. At the time of the
transaction, the parties were governed by the United Provinces (Temporary) Control of
Rent and Eviction Act, 1947. Subsequently, during the pendency of the proceedings,
the Uttar Pradesh Urban Buildings (Regulation of Letting, Rentand Eviction) Act, 1972
was enacted. The argument was that by virtue of the later Act persons in possession
would not be entitled to any rights under the earlier Act. The point that was framed for
consideration by the Supreme Court in this behalf is as follows:—
“If Ex. T is a lease wholly of an accommodation, can the plaintiff claim possession
based on the repeal of the Act by the later Act during the pendency of the present
appeal?”
79. The Supreme Court said that the rights of parties could be decided as per the
later Act. The Supreme Court posited as under:—
“Now comes the additional ground taken before us based on the passage of the
later Act. It is admitted that, by frequent amendments the duration of the Act was
extended from time to time till at last it was to expire on September 30, 1972.
Some time before this date the later Act, a permanent statute, was put

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on the Statute Book which by Section 43 repealed the Act of 1947 and by Section 2
excluded from the scope of the protection of the Act accommodation belonging to local
bodies. It is useful to extract Sections 2 and 43 at this stage:

“2. Exemptions from operation of Act.—(1) Nothing in this Act shall apply to—
(a) any building belonging to or vested in the State Government or the Government
of India or any local Authority; or
* * * * *”
“43. Repeal and savings.—(1) The United Provinces (Temporary) Control of Rent
and Eviction Act, 1947 (U.P. Act No. III of 1947) is hereby repealed.
(2) Notwithstanding such repeal—
* * * * *”
We have in this case a temporary Act which would have died a natural death by the
end of September, 1972 but before its life had run out was extinguished by
statutory repeal on July 22, 1972 on which date the later Act came into force.
Surely, there has been a repeal of the Act which was relied upon successfully by the
defendant and his legal representative the appellant, throughout the litigation. But
now that defence or protection is no longer available. However, Counsel for the
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appellant contends that a right has accrued to him under the Act which cannot be
taken away by its repeal since the later Act is not in terms a retrospective one.
Factually, it is correct to say that Section 43 has not been retrospective. Even so,
the Counsel for the respondent submits that, on the repeal of the Act, the disability
which his clients suffered has disappeared and he is entitled to enforce his cause of
action. According the tenant but imposed a disability on the landlord in enforcing
his right to evict and that a mere defence cannot be described as a right in the
defendant. According to him, the ‘right’ referred to under Section 6 of the repealing
Act is a substantive right and not a defensive plea. We have to examine these rival
positions in some detail.
Certain propositions are clear regarding the consequence of repeal of a statute. The
general principle is that an enactment which is repealed is to be treated, except as
to transactions passed and dosed, as if it had never existed. However, the operation
of this principle is subject to any savings which may be made, expressly or by
implication, by the repealing enactment (vide Halsbury's Laws of England, Vol. 36
paragraph 714).”
80. This decision does not at all help the petitioners because the case of the
petitioners is that the Zazul lands should be dealt with as if in continuation of U.P.
Town Improvement Act, 1919 and the petitioners substantial right is saved by Section
6 of the General Clauses Act. While developing his argument further it was contended
by the learned Senior Counsel that Section 60 of the D.D. Act is a case of repeal and re
-enactment and in such cases unless the intention to the contrary is specifically
expressed the repeal Act continues with full force. He relied on the decision in State of
Punjab v. Mohar Singh Pratap Singh, A.I.R. 1955 S.C. 84. Tersely stated the facts are
after the partition of India East Punjab Refugees (Registration

Page: 342

of Land Claims) Act (12 of 1948) was enacted. That gave right to repatriate from
Pakistan to make a claim with the Indian Authorities for equal extent of land owned by
them in India. The respondent before the Supreme Court made a false claim and on
that account prosecution was launched against him. On the date when he made the
claim the law that was governing the rights of parties was East Punjab Refugees
(Registration of Land Claims) Act, Ordinance (7 of 1948). The argument was that the
Magistrate before him he was tried for an offence under the Ordinance before the Act
came into force and the prosecution was started long after the Ordinance, had come to
an end. Reliance was placed on Section 6 of the General Clauses Act, 1897. The
passage relied on by the learned Senior Counsel at page 89 reads as follows:—

“The provisions of Section 6 of the General Clauses Act will, in our opinion, apply to
a case of repeal even if there is simultaneous enactment unless a contrary intention
can be gathered from the new enactment.”
81. The High Court took the view that the act repealed the Ordinance and,
therefore, any offence committed under the Ordinance would not survive under the
Act. That was reversed by the Supreme Court setting aside the judgment of the High
Court. I fail to see how this judgment is of any help to the petitioners. The Supreme
Court has observed as under:—
“In the case of a simple repeal there is scarcely any room for expression of a
contrary opinion. But when the repeal is followed by fresh legislation on the same
subject we would undoubtedly have to look to the provisions of the new Act, but
only for the purpose of determining whether they indicate a different intention.
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The line of enquiry would be, not whether the new Act expressly keeps alive old
rights and liabilities but whether it manifests an intention to destroy them. We
cannot therefore subscribe to the broad proposition that Section 6 of the General
Clauses Act is ruled out when there is repeal of an enactment followed by a fresh
legislation. Section 6 would be applicable in such cases also unless the new
legislation manifests an intention incomparable with or contrary to the provisions of
the section. Such incompatibility would have to be ascertained from a consideration
of all the relevant provisions of the new law and the mere absence of a saving
clause is by itself not material.”
82. Relying on this case, learned Senior Counsel submitted in such cases unless the
new Act has a manifest intention of incompatibility and to discover which the scheme
of both the acts (D.D. Act, 1957 and D.M.C. Act, 1957) will have to be seen, the
saving clause either by necessary implication or expressly, would save the existing
arrangement. By this, the learned Senior Counsel again would try to persuade us to
conclude that the MCD has no jurisdiction in the light of the statutory scheme
enumerated by him. He referred to the case Munshi Lal Bent Rant Glass Works v. Sri
S.S. Singh, Asstt. Labour Commissioner, (1969) 3 SCC 786 and the passage in
paragraph 11. The Supreme Court simply followed the decision in 1955 S.C. 84
(supra). The next case referred to by him The Nagpur Hotel Owners Association v. The
Corporation of the City of Nagpur, 1979 M.C.C. 329. I do not want to refer to the facts.
The case is similar to the decision of this Court in P.N. Balasubramanian v. Union of
India,

Page: 343

ILR (1976) I Delhi 506. It was argued that there was repugnancy between Nagpur
Corporation Act, 1950 and the Prevention of Food Adulteration Act, 1954 for the
purpose of escaping out of an offence committed with reference to food adulteration,
the Bombay High Court expressed the view that there was no repugnancy and the
prosecution launched under the Prevention of Food Adulteration Act, 1954 was in
accordance with law. This Section does not help the petitioners.

83. For the purpose of bringing to our notice the phraseology adopted by the
Supreme Court about the change of hats, the learned Senior Counsel relied upon the
decision Vasant Kumar Radha Krishan Bora (Dead) by L/Rs. v. Board of Trustee of the
Port of Bombay, (1991) 1 SCC 761. This is to show that after the coming into force of
the D.D. Act and by virtue of the provisions of Section 60 and Section 12 the Delhi
Improvement Trust has merely changed its hat and the proper authority now is the
Delhi Development Authority under the Delhi Development Act, 1957. The learned
Senior Counsel while developing his argument went to the other aspects of the cases
in respect of the lease deeds executed between Delhi Improvement Trust and the
predecessor-in-interest of the petitioners. Another limb of the argument is that the
lease deeds referred to by the learned senior Counsel would be things done under the
U.P. Town Improvement Act, 1919 and, therefore, as per Section 60 of Delhi
Development Act they are saved and are outside the penumbra of the Delhi Municipal
Corporation Act, 1957. He relied on the decision in Universal Imports Agency v. The
Chief Controller of Imports & Exports, A.I.R. 1961 S.C. 41 paragraphs 9 and 10. This
case arose under the French Establishment Application of Laws Order 1954. A trader in
the Union territory of Pondicherry, which was under the control of French Government,
had entered into a contract with the dealer in Japan for importing articles. The
transaction had been complete in every respect and the goods also had been imported
and as a matter of fact arrived in India before the order came into force. The
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authorities under this order sought to levy duty on the basis that the import was
governed by the provisions of the order while as per the law existing prior to that
publication the duty payable was less. The argument on behalf of the trader in
Pondicherry was as per the saving clause in the order the import that was done by him
was on ‘things done coming within the saving clause’ and, therefore, he cannot be
called upon to pay duty under this order. The Supreme Court accepted that
contention. In my view, the position in this case is entirely different. The petitioners
and their predecessors-in-interest are in possession of lands governed by particular
law prior to 1947. The law has been completely changed and it cannot be contended
by the petitioners that the lease pursuant to which they are in possession are ‘things
done’ coming under the saving clause in Section 60 of the D.D. Act, 1957.
84. The learned Senior Counsel relied on decision in State of U.P. v. Maharaja
Dharamander Prasad Singh, (1989) 2 SCC 505 : AIR 1989 S.C. 997 at page 1006.
Except the case refers to Nazul land there is nothing which has any bearing on this
case. The nazul land therein was leased out to the lessee. From the lessee the
respondent before the Supreme Court attempted to put up a commercial complex after
obtaining permission from the Vice Chairman in violation of the conditions of the lease.
The Government issued notice to cancel the leases. The case of the respondent was
that the permission was granted by the Vice Chairman and that cannot be revoked.
The High Court accepted the contention on behalf of the respondent and

Page: 344

allowed his writ petition. The Supreme Court reversed the decision of the High Court.
Section 3 of the U.P. Urban Town Planning & Development Act is in part materia with
Section 12 of the D.D. Act, 1957. Section 41 of the U.P. Urban Town Planning &
Development Act empowers the Government to have control over the administration
by the Vice Chairman of the Development Authority. Therefore, the decision by the
Supreme Court cannot be of any help to the petitioners.

85. It was further contended by the learned Senior Counsel that D.D. Act, 1957 is
Special Act and deals only with Nazul lands and D.M.C. Act, 1957 is a General Act and,
therefore, if there is a conflict between general Act and special Act the latter would
prevail.
86. The learned Senior Counsel then referred to the aspect of vesting. The learned
Senior Counsel referred to Law Dictionary of Emami. The learned Senior Counsel
referred to the decision in Fruit & Vegetable Merchants Union v. Delhi Improvement
Trust, AIR 1957 S.C.R. 1. It is not necessary to go deep into the facts of this case.
Their Lordships of the Supreme Court pointed out that the difference between vesting
in possession and vesting in title. This decision was followed by the Supreme Court in
Corporation of Hyderabad v. P.N. Murthy, (1987) 1 SCC 568 : AIR 1987 S.C. 802. It is
asserted by the learned Senior Counsel that the Trust held the land on behalf of the
Government. The learned Senior Counsel then referred to the pleadings in C.W.
4958/94 and brought to our notice the lease deed dated 27.9.1948 i.e. a lease deed
executed between the Delhi Improvement Trust, a body incorporate under the United
Provinces Town Improvement Act, 1919 and one Vidya Wati, who was the lessee. The
lease deed is in perpetuity from the date of lease dated 16.7.1948. Clause (i) refers to
the payment of rent and other tax rates and assessments. Clauses (ii), (iv) and (vi) of
the agreement read as follows:—
(ii) to erect upon the said land within one year from the date hereof and thereafter
at all times during the said term to maintain thereon a good and substantial
residential Bunglow, according to the Rules and Directions which now are or may
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hereafter be in force in Delhi under any Municipal Act or any bye-law framed by
the Lessor or under any other law Rule or Regulation for the time being
applicable thereto, in respect to materials to be used in and method of
construction of buildings in the quarter in which the said land is situate to
submit plans, sections, elevations and specifications for the construction of the
building to be erected upon the said land for the approval of the Lessor in
duplicate, not to start the work of construction unless and until the approval of
the Lessor has been obtained in writing, and not to make any alterations in and
additions to the buildings so approved by the Lessor at any time either externally
or internally without first obtaining the permission of the Lessor in writing;
(iv) to complete the said buildings within One Year from the date hereof to the
satisfaction of the Lessor and maintain the premises and all buildings thereon in
a sanitary condition according to the directions of the Lessor or some officer duly
authorised by him in this behalf;
(vi) not to use the said land and buildings that may be erected thereon

Page: 345

during the said term for any other purpose than for the purpose of residential
bungalow without the consent in writing of the said Lessor; provided that the lease
shall become void if the land is used for any purpose other than for which the lease is
granted not being a purpose subsequently approved by the Lessor;

87. Therefore, on a reading of the entire lease deed, according to the learned Senior
Counsel in the place of Delhi Improvement Trust Delhi Development Authority would
come in and, therefore, there is no duality of power and there is no division of power.
Further developing this point, learned Senior Counsel would contend that the authority
with reference to land for supervising and control of the buildings which were under
the control of the Delhi Improvement Trust is Delhi Development Authority and,
therefore, the MCD does not have any jurisdiction to take any action in respect of the
land or the buildings thereon which were under the control of the Delhi Improvement
Trust.
88. The learned Senior Counsel relied upon the provisions of the Government
Grants Act, 1985. The Act is a very short one and Sections 2 and 3 read as follows:—
“2. Transfer of Property Act, 1882, not to apply to Government grants.—
Nothing in the Transfer of Property Act, 1982, contained shall apply or be deemed
ever to have applied to any grant or other transfer of land or of any interest therein
heretofore made or hereafter to be made [by or on behalf of the Government] to, or
in favour of, any person whomsoever, but every such grant and transfer shall be
construed and take effect as if the said Act had not been passed.
3. Government grants to take effect according to their tenor.—All provisions,
restrictions, conditions and limitations over contained in any such grant or transfer
as aforesaid shall be valid and take effect according to their tenor, any rule of law,
statute or enactment of the Legislature to the contrary notwithstanding.”
89. Relying upon these provisions the learned Senior Counsel contends hat no law
can abridge or take away the rights of the grantee, namely the lessee from the Delhi
Improvement Trust. The argument of the learned Senior Counsel would ignore the
scope of the Government Grants Act and the Delhi Municipal Corporation Act, 1957.
The learned Senior Counsel in this behalf referred to the decision in ILR 27 Allahabad
634 (P.C.). The circumstances under which the matter went up to the Privy Council
and the facts are these; on 19.10.1859 a sanad was granted to one G.S. The terms of
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the grant are, to the grantee and his heirs without indicating the line of inheritance;
that G. S. died on 16.1.1860 leaving behind him his two brothers G & D. D had two
sons at the time of death of G.S. Balbhaddar and Sheo. Balbhaddar's wife is
Raghudane Kunwar. The elder brother G was in possession of Taluka called a Mehawa,
the subject mater of the grant in 1859. The eldest brother died in 1865 issueless. G
executed a will bequeathing the estate to Balbhaddar, who succeeded and got
possession of the Taluka. During Balbhaddar's lifetime Oudh Estate Act, 1869 was
passed taking over the entire estate by the British Government. It would appear that
in 1861 a new sanad was given to G.

Page: 346

90. At page 651 of the report the terms of the grant is extracted by the Privy Council,
which reads as follows:—

“It is another condition of this grant that in the event of your dying intestate, or of
any of your successors dying intestate, the estate shall descend to the nearest male
heir according to the rule of primogeniture.”
91. The Privy Council referred to the views taken by the Courts below in India in the
following terms:—
“But it was held by both Courts in India that such a sanad could not in point of law
operate to substitute the line of descent prescribed by it for the line prescribed by
the earlier sanad. The Subordinate Judge said: “Sanad was granted to Gajraj Singh,
and he could have consented to have it changed, and if he had done so, it would
have been binding on his heirs and successors, but if Girwar Singh got it converted
into a primogeniture sanad, he could not, by doing so, himself derive any benefit or
confer any benefit on his heirs and successors.”
In the Appeal Court the view was thus expressed: “The fact which renders the
sanad on which the defendant relies absolutely useless is the fact that the estate
had already been conferred by the Government on Gajraj Singh and his heirs for
ever when it professed to give it to Girwar Singh and his heirs for ever.”
92. At page 653 referring to the Government Grants Act, the Privy Council observed
as follows:—
“In the argument before their Lordships another objection to the powers of
Government was raised. It was suggested that though in the earlier troublous times
many things were effectively done by Government as acts of State, still, in or after
1861 (which is the earliest possible date for Girwar's sanad, for it was in April of
that year that he asked for it) no executive act of the Government could have
created an estate descending by any rule of inheritance other than that laid down
by the law, and the law in the present case would be the Hindu law.
Whatever force such a contention might otherwise have had appears to their
Lordships to be removed by the Act to which their attention was called, Act No. XV
of 1895 (The Crown Grants' Act, 1895). That Act recites, amongst other things, that
doubts have arisen as to the power of the Crown to impose limitations and
restrictions upon grants and other transfers made by it or under its authority, and it
is expedient to remove such doubts. And Section 3 enacts that “all provisions,
restrictions, conditions, and limitations over contained in any such grant or transfer
as aforesaid shall be valid and take effect according to their tenor, any rule of law,
statute, or enactment of the Legislature to the contrary notwithstanding.”
93. Therefore, the point that arose for decision before the Privy Council was entirely
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different and the petitioners cannot rely upon the Government Grants Act, 1895 to say
that the MCD has no right to issue the notice of demolition in case of violation of the
building bye-laws. It may also be noticed that the petitioners cannot rely upon the
Government Grants Act, 1895 because the MCD does not seek to interfere with the
possession of the land of the petitioners, and the case of the MCD

Page: 347

is that construction cannot be put up in these lands without obtaining permission from
the MCD. It does not require any argument to show that the petitioners cannot rely
upon the Government Grants Act for the purposes of maintaining their illegal acts.

94. The learned Senior Counsel then relied upon the decision in Janendra Nath
Nanda v. Jadu Nath Banerji, AIR 1938 Calcutta 211 at page 214. This again is easily
distinguishable and does not render any help to the case of the petitioners.
95. The learned Senior Counsel then invited our attention to the decision of the
Supreme Court in State of U.P. v. Zahoor Ahmad, (1973) 2 SCC 547 : AIR 1973 S.C.
2520 paragraph 11. Here again, the facts are entirely different and the Supreme Court
did not touch any point relevant to the points at issue. The learned Senior Counsel
then referred to the decision of the Supreme Court in Express Newspapers Pvt. Ltd. v.
Union of India, (1985) 1 SCC 641 : A.I.R. 1986 S.C. 872. This is the case where the
Lt. Governor took action against the Express Newspapers Pvt. Ltd. for the alleged
violation of the building bye-laws by the Express Newspapers. That action of the Lt.
Governor was challenged before the Supreme Court. In paragraph 25 at page 884 the
Supreme Court noticed the construction done by the petitioner, which reads as
follows:—
“The material on record discloses that the construction of the new Express Building
with an increased FAR of 360 with a double basement was in conformity with
Clauses 2(5) and 2(14) of the perpetual lease-deed dated March 17, 1958
inasmuch as it was with the express sanction of the lessor i.e. the Union of India. It
is also quite clear that Sikander Bakht, the then Minister for Works & Housing was
throughout guided by the officials of the Ministry, particularly the Secretary,
Ministry of Works & Housing, who was the Competent Authority to act for the
President with regard to any contract, grant or assurance of property of the Union
relating to any matter whatsoever in relation thereto by virtue of the notification
issued by the President under Art. 299(1) and further that the grant of such
permission was after the matter had been dealt with at all levels and was in
conformity with the orders of the then Vice-Chairman, Delhi Development Authority
dated October 21, 1978 as one under ‘special appeal’.”
96. In paragraph 30 at page 887 the Supreme Court noticed the permission given
by the Ministry to the petitioner for the construction, which is as follows:—
“The Ministry of Works & Housing by letter dated February 2, 1978 conveyed to the
Vice Chairman, Delhi Development Authority the decision of the Union of India to
permit the petitioners to build with an FAR of 360 as below:
“It has been decided that FAR in this case may be increased up to 360 so that with
the extra basement area the firm would have an additional built-up area of nearly
50,000 sq. feet. You are requested to take necessary action in the matter”.
At page 889 the Supreme Court noticed the petitioners' case as follows:—
“In the facts and circumstances hereinbefore adumbrated, the petitioners pleaded
inter alia that:
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1. The proposed action of re-entry by the lessor i.e. the Union of India, Ministry of
Works & Housing at the instance of the Lieutenant Governor of Delhi is meant to be an
act of political vendetta. The impugned notices have been issued with an evil eye and
an unequal hand and with a deliberate design to compel the petitioners to close down
the Express Group of Newspapers in general and the Indian Express in particular. The
said notices are ex facie illegal and without jurisdiction and are contrary to the factual
and legal provisions. The arbitrary and discriminatory initiation of executive action
under the guise of alleged infraction of the terms of the lease and/or the Master Plan of
Delhi and/or the Municipal building bye-laws is violative of the petitioners'
fundamental rights under Arts. 14, 19(1)(a) and 19(1)(g) of the Constitution.

2. The construction of the new Express Building with an increased FAR of 360 was
in conformity with Clause 2(5) of the perpetual lease dated March 17, 1958
inasmuch as it was with the express sanction of the lessor i.e. the Union of India.
The grant of permission by Sikandar Bakht, the then Minister for Works &
Housing to sanction the construction of the new Express Building with an
increased FAR of 360 was in accordance with the Master Plan, after M.N. Buch,
Vice-Chairman, Delhi Development Authority by his order dated Oct. 21, 1978 as
“one under special appeal” under the Master Plan, Chapter II, Part A, Zoning
Regulations, Item 13, Use Zone-C-2, at p. 50 directed that plots Nos. 9 and 10
at Bahadurshah Zafar Marg leased to the Express Newspapers Pvt. Ltd. should be
‘amalgamated together into one plot and taking into account the existing built
up area occupied by the old Express Building built on the eastern portion of the
underground sewage drain with an FAR of 260, the construction of the new
Express Building on the western portion thereof after removal of the sewer line
with an overall FAR of 360 was permissible.”
97. This is the Express Newspaper's case and the facts are different and the
Supreme Court decided the issue on the peculiar facts of that case. I fail to see how
this decision can be of any help to the petitioners. The learned Senior Counsel then
referred to the opinion of Francis Bennion 2nd Edn. 1992 in his book Statutory
Interpretation page 411 Section 198, which reads as under:—
“Section 198. The rule ut res mais valeat quatn pereat—It is a rule of law that
the legislator intends the interpreter of an enactment to observe the maxim utres
magis valeat quant pereat; so that he must construe the enactment in such a
way as to implement, rather than defeat, the legislative purpose.”
98. The learned Senior Counsel referred to Sections 12 and 22 of the D.D. Act,
1957 and contended that there is a distinction between the two Sections which would
have an impact on the case of the petitioners. Section 22 does not speak of
development area and speaks of Nazul lands. Section 12 refers to development area
and that does not speak of Nazul lands. According to the learned Senior Counsel
development area means hereafter to be declared under this Act and the area means
the land already there in the scheme. He then referred to Section 59 of the Act which
speaks of dissolution of the authority. According to the learned Senior Counsel, it

Page: 349

is significant to notice that there is similar provision in Section 103 of the U.P. Town
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Improvement Act, 1919. Therefore, the learned Senior Counsel wanted to infer that
the scheme of the Act was to make the DDA as successor-in-interest as it were, of the
Delhi Improvement Trust. The learned Senior Counsel then referred to the introduction
of Section 22A in the D.D.A. Act in 1963, which reads as follows:—

“22-A. Power of Authority to develop land in non-development area.—

Notwithstanding anything contained in Sub-section (2) of Section 12, the Authority
may, if it is of opinion that it is expedient to do so, undertake or carry out any
development of any land which has been transferred to it or placed as its disposal
under Section 15 or Section 22 even if such land is situate in any area which is not
a development area.”
99. Then the learned Senior Counsel referred to Section 22(3) of the D.D. Act and
the learned Senior Counsel wanted us to infer that Nazul lands means development
area. The learned Senior Counsel relied on the decision State of Mysore v. Allunt
Karibasappa, (1974) 2 SCC 498 : A.I.R. 1974 S.C. 1863 at page 1866, and
Corporation of the City of Nagpur, Civil Lines, Nagpur v. Ramchandra G. Modak, AIR
1984 S.C. 626 at page 627.
100. AIR 1974 SC 1863 related to superseding of the committee of management of
a municipality. I have gone through the case and I do not find any ratio relevant to
the point at issue. AIR 1984 S.C. 626 is a case where the point that was mooted was
whether under Section 59 of the City of Nagpur Corporation Act, 1950 the Commercial,
Corporation on whom vested the exercise, supervision and control over the action
proceedings of all municipal officers and servants. Supreme Court said that vesting
and control read together would convey an absolute control in the authority. The ratio
of this decision does not at all come to the help of the petitioners.
101. The learned senior Counsel then said the power of the authority under the
Delhi Municipal Corporation Act is a discretionary power and, therefore, the discretion
has to be exercised by the concerned authority in accordance with the known
principles and it cannot be arbitrary and fanciful and at the whims and fancies of the
concerned authorities. In CW.4545/94 the petitioners put their case thus:—
“9. It appears the promoters of the building applied to respondent No. 3 for grant of
permission for erecting residential building, a fact the petitioner has only recently
come to know. But this is not material because the area in which the building
stands, is outside the jurisdiction of the respondents 3 and 4, and as already
stated in paragraph 3 above, the plot vests in Delhi Development Authority,
being the successor body of Delhi Improvement Trust. Action, if any, in regards
to the building can only be taken in accordance with Section 186, U.P.
Municipalities Act, 1916, read with Section 49, U.P. Town Improvement Act,
1919, and Section 60, Delhi Development Act, 1957.
10. Most of the buildings in the area in which the building is situate, are commercial
and multi-storeyed structures.
12. The building plans for all buildings other than those erected by either

Page: 350

the Delhi Development Authority or Manager Telephone Nigani, were sanctioned as

residential buildings.

13. This fact in itself shows, the building bye-laws, so far as the area in which the
building stands, are unreasonable and any insistence on compliance of such
unreasonable bye-laws would be per se violative of reasonableness. If the Delhi
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Development Authority may raise high rise buildings and put it to commercial
use, if Mahanagar Telephone Nigam may with impurity do the same, if private
persons may also do likewise in the immediate vicinity, it is inherently
discriminatory to subject the building to a hostile treatment.
15. The threatened demolition of the building, by Delhi Municipal Corporation of
Delhi would be abuse of authority and power, exercise of excess of jurisdiction
and mala fide too, as the building is not within the area over which the said
Municipal Corporation can exercise power and authority.”
102. The learned Senior Counsel referred to the photographs shown as annexure
P.2 collectively to the writ petition where there are number of buildings having more
than 2.1/2 floors in the area. The learned Senior Counsel also refers to the amendment
petition CM.827/95. The petitioners wanted to have the following amendment:—
“4. The petitioner craves leave to this Hon'ble Court to annex the documents
referred to in paragraph 3 above to the captioned writ petition and add the
following sub paragraphs to paragraph 11 therein:—
“The petitioner craves leave to also refer to any rely upon a chart, annexed to the
writ petition as Annexure P-2 A, giving list of buildings in Delhi which have more
than two and half storeys.
The petitioner is also placing on record, as Annexure P-2B, a photo copy of plan of a
five storeyed building sanctioned by Municipal Corporation of Delhi.”
5. Paragraph 11 of the writ petition, after the amendment aforementioned will read
as under:—
“11. Petitioner annex to this petition as Annexure ‘P-2’ (Colly.) a collage of
photographs which show, there already exist a large number of buildings, put to
non residential use and in height too having more floors than two and a half,
some are ten floor or even sixteen floor buildings.
The petitioner craves leave to also refer to and rely upon a chart, annexed to the
writ petition as Annexure P-2 A, giving list of buildings in Delhi which have more
than two and half storeys.
The petitioner is also placing on record, as Annexure P-2B, a photo copy of plan of a
five storeyed building sanctioned by Municipal Corporation of Delhi.”
103. The learned Senior Counsel submitted that it is the duty of the authorities to
find out whether there are unauhorised constructions in the locality. There are

Page: 351

19 officers in MCD and 9 officers in DDA for this purpose. According to the learned
Senior Counsel there must be some reasons for the authority not to take serious view
in respect of the buildings in question in this case also when they had allowed the
other constructions referred to in paragraphs 4 and 5 of the amendment petition, the
learned Senior Counsel, as per the amendment, produced a sanctioned plan by MCD in
Jhandewalan Scheme about which Mr. Arun Jaitley, learned senior Counsel for MCD
submitted that it was a wrong action by the MCD and action is being taken against the
concerned authorities. The learned Senior Counsel for the petitioners referred to bye-
laws 481-483 to be approved by the Government. The learned Senior Counsel asserted
that MCD and DDA should explain how the plan could be sanctioned by the authorities.
The learned Senior Counsel then referred to the counter filed by the MCD at page 77
and according to the learned Senior Counsel paragraph 10 in the writ petition has not
been traversed. In my view that when facts are before the Court, when there is a
general denial by the authorities of all the allegations in the petition, the fact that
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there is no specific denial of paragraph 10 cannot be pressed into service by the
petitioners when they have to prove their case by producing all materials in this
behalf. The petitioners cannot try to pick hole in the case of the respondents and try to
spin out a case.

104. The learned Senior Counsel referred to the decision (96) Lawyers Edition at
page 113 and 116. The learned Senior Counsel referred to Khudi Ram Dass v. State of
West Bengal, AIR 1975 S.C. 550 at page 552 paragraph 11. The case arose under
Internal Security Act. Then the learned Senior Counsel referred to Corporation of
Calcutta v. Mulchand Agarwala, AIR 1956 S.C. 110. The relevant passage is at page
114, which reads as follows:—
“In this view, the point for decision is whether the order passed by the Municipal
Magistrate and affirmed by the learned Judge in revision is open to attack on the
merits. The respondent contends that the Magistrate has under Sec. 363 a
discretion whether he should pass an order for demolition or not, and that this
Court should not in appeal interfere with the exercise of that discretion especially
when it has been concurred in by the High Court. Now, the language of Sec. 363 is
that the Magistrate ‘may’ pass an order for demolition of the building, and though
the word ‘may’ might in some contexts be construed as meaning ‘shall’ that is not
the sense in which it is used in Sec. 363.
We agree with the respondent that Sec. 363 does not require that when a building
is shown to have been erected without permission or completed otherwise than in
accordance with the terms of the permission or in breach of the building rules, an
order for its demolition should be made as a matter of course. In our opinion, it
does give the Magistrate a discretion whether he should or should not pass such an
order.
That was the construction put in—‘Abdul Samad v. Corporation of Calcutta, 33 Cal.
287 (A), on Sec. 449 of the Calcutta Municipal Act, (Bengal Act III of 1899) which
corresponds to Sec. 363 of the present Act on language which is, so far as the
present matter is concerned, the same. In re-enacting the present section in the
same terms as Sec. 449 of Bengal Act III of 1899, it must be taken that the
Legislature has accepted the interpretation put on them in ‘33 Cal 287

Page: 352

(A)’, as correctly representing its intention. It should accordingly be held that the
word ‘may’ in Sec. 363 does not mean ‘shall’ and that the Magistrate has under that
section a discretion whether he should pass an order for demolition or not.

The position, therefore, is that the orders of the Courts below are based on mistakes
and misdirections, and cannot be supported. The conduct of the respondent in
adopting a hide-and-seek attitude in completing the constructions in deliberate
defiance of the law calls for severe action. It would be most unfortunate, and the
interests of the public will greatly suffer, if the notion were to be encouraged that a
person might with impunity break the building rules and put up a construction and
get away with it on payment of fine.”
105. The learned Senior Counsel said that the word used ‘may’ has to be construed
giving a discretionary power to the authority and that is what Supreme Court had
held. Therefore, according to the learned Senior Counsel Section 343 of the D.M.C. Act
also says ‘may’. Therefore, in every case of unauthorised construction the
Commissioner cannot say that the building should be demolished. Section 343 of the
D.M.C. Act reads as follows:—
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“343. Order of demolition and stoppage of building and works in certain

cases and appeal—(1) Where the erection of any building or execution of any work
has been commenced, or is being carried on, or has been completed without or
contrary to the sanction referred to in Section 336 or in contravention of any
condition subject to which such sanction has been accorded or in contravention of
any provisions of this Act or bye-laws made thereunder, the Commissioner may, in
addition to any other action that may be taken under this Act, make an order
directing that such erection work shall be demolished by the person at whose
instance the erection or work has been commenced or is being carried on or has
been completed, within such period (not being less than five days and more than
fifteen days from the date on which a copy of the order of demolition with a brief
statement of the reasons therefore has been delivered to that person), as may be
specified in the order of demolition:
Provided that no order of demolition shall be made unless the person has been
given by means of a notice served in such manner as the Commissioner may think
fit, a reasonable opportunity of showing cause why such order shall not be made:
Provided further that where the erection or work has not been completed, the
Commissioner may by the same order or by a separate order, whether made at the
time of the issue of the notice under the first proviso or at any other time. Direct
the person to stop the erection or work until the expiry of the period within which
an appeal against the order of demolition, if made, may be preferred under Sub-
section (2).
(2) Any person aggrieved by an order of the Commissioner made under Subsection
(1) may prefer an appeal against the order to [the Appellate Tribunal] within the
period specified in the order for the demolition of the erection or work to which it
relates.
(3) Where an appeal is preferred under Sub-section (2) against an order of

Page: 353

demolition [the Appellate Tribunal may, subject to the provisions of Subsection (3) of
Section 347] stay the enforcement of the order on such terms, if any, and for such
period, as it may think fit.

Provided that where the erection or any building or execution of any work has not
been completed at the time of making of the order of demolition, no order
staying the enforcement of the order of the demolition shall be made by [the
Appellate Tribunal unless security, sufficient in the opinion of the said Tribunal]
has been given by the appellant for not proceeding with such erection or work
pending the disposal of the appeal.
(4) [No Court] shall entertain any suit, application or order proceeding for
injunction or other relief against the Commissioner to restrain him from taking
any action or making any order in pursuance of the provisions of this section.
(5) [Subject to an order made by the Administrator on appeal under Section 347D,
every order by the Appellate Tribunal Appeal under this section, and subject to
the orders of the Administrator and the Appellate Tribunal on appeal] the order
of demolition made by the Commissioner shall be final and conclusive.
(6) Where no appeal has been preferred against an order of demolition made by the
Commissioner under Sub-section (1) or where an order of demolition made by
the Commissioner under that sub-section [has been confirmed on appeal,
whether with or without variation, by the Appellate Tribunal, and by the
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Administrator in a case where an appeal has been preferred against the order of
the [the Appellate Tribunal] the person against whom the order has been made
shall comply with the order within the period specified therein, or as the case
may be, within the period, if any fixed by [the Appellate Tribunal or the
Administrator] on appeal and on the failure of the person to comply with the
order within such period, the Commissioner may himself cause the erection or
the work to which the order relates to be demolished and the expenses of such
demolition shall be recoverable from such person as an arrear of tax under this
Act.]”
106. We can usefully refer to the passage in Interpretation of Statutes by G.P.
Singh 5th Edn. (1992) page 264 wherein reference is made to the decision of the
Supreme Court in Central Bank of India Ltd. v. Karunamoy Banerjee, AIR 1968 S.C.
266 at page 267. I shall deal with this contention at the appropriate stage presently.
The learned Senior Counsel relied upon a few passages from Wade Administrative Law
375 Indiscriminate use of Power, 395-396 reasonableness. The learned Senior Counsel
relied upon a passage in Schwartz, Administrative Law, (an American Book), 3rd
Edition. The passage reads as follows:—
“Judicial power over discretion is now crystalized in the” arbitrary, capricious and
abuse of discrimination’. Clause of the Federal Administration Procedure Act quoted
in the preceding section. There are comparable provisions in State Review Statute.
They confirm the judicial authority to intervene where discretion has been abused.”
107. Abuse of discretion occurs where the power has been exercised in a manner
i.e. in the traditional phrase, arbitrarily or capriciously. The test is once again a test of

Page: 354

reasonableness. Rationality is what is required under both the substantial evidence

rule and the arbitrary and capricious standard. Review of discretion is thus subject to
essentially the same standard of review as findings of facts under the substantial
evidence rule. Under that rule as seen in Section 10.8 the Court now determines
whether a challenged finding was reasonable one in the light of evidence available on
record. A comparable determination is made when discretion is reviewed. The Court
determines whether the exercise of discretionary power was reasonable on the record
presented and the circumstances of the particular case. As the Supreme Court has put
it, where the exercise of administrative decision is at issue, the question is whether
the challenged acts falls within that ‘zone of reasonableness’ that the Courts allow the
agency on review. Mobil Oil Corporation v. F.D.C., (1974) 417 U.S. at page 307.

108. The learned Senior Counsel referred to the decision in Air India v. Nergesh
Merza, (1981) 4 SCC 335 : AIR 1981 S.C. 1829. He relied upon the decision at page
1850 which reads as follows:—
“Coming now to the second limb of the provisions according to which the services of
AHs would stand terminated on first pregnancy, we find ourselves in complete
agreement with the argument of Mr. Setalvad that this is a most unreasonable and
arbitrary provision which shocks the conscience of the Court. The Regulation does
not prohibit marriage after four years and if an AH after having fulfilled the first
condition becomes pregnant, there is no reason why pregnancy should stand in the
way of her continuing in service. The Corporations represented to us that pregnancy
leads to a number of complications and to medical disabilities which may stand in
the efficient discharge of the duties by the AHs: It was said that even in the early
stage of pregnancy some ladies are prone to get sick due to air pressure, nausea in
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long flights and such other technical factors. This, however, appears to be purely an
artificial argument because once a married woman is allowed to continue in service
then under the provisions of the Maternity Benefit Act, 1961 and The Maharashtra
Maternity Rules, 1965 (these apply to both the Corporation as their Head offices are
at Bombay,), she is entitled to certain benefits including maternity leave. In case,
however, the Corporations feel that pregnancy from the very beginning may come
in the way of the discharge of the duties by some of the AHs, they could be given
maternity leave for a period of 14 to 16 months and in the meanwhile there could
be no difficulty in Management making arrangements on a temporary or ad hoc
basis by employing additional AHs. We are also unable to understand the argument
of the Corporation that a woman after bearing children becomes weak in physique
or in her constitution. There is neither any legal nor medical authority for this bald
proposition. Having taken the AH in service and after having utilised her services for
four years, to terminate her service by the Management if she becomes pregnant
amounts to compelling the poor AH not to have any children and thus interfere with
and divert the ordinary course of human nature. It seems to us that the termination
of the services of an AH under such circumstances is not only a callous and cruel act
but an open insult to Indian womanhood—the most sacrosanct and cherished
institution. We are constrained to observe that such a course of action is extremely
detestable and abhorrent to the notions

Page: 355

of a civilised society. Apart from being grossly unethical, it smacks of a deep rooted
sense of utter selfishness at the cost of all human values. Such a provision, therefore,
is not only manifestly unreasonable and arbitrary but contains the quality of unfairness
and exhibits naked despotism and is, therefore, clearly violative of Article 14 of the
Constitution. In fact, as a very fair and conscientious Counsel Mr. Nariman realised the
inherent weakness and the apparent absurdity of the aforesaid impugned provisions
and in the course of his arguments, he stated that he had been able to persuade the
Management to amend the Rules so as to delete ‘first pregnancy’ as a ground for
termination of the service and would see that suitable amendments are made to
Regulation 46 (i) (c) in the following manner:

“(a) Regulation 46(i)(c) will be amended so as to substitute for the words “or on
first pregnancy”, the words “or on a third pregnancy”.
(b) There will be a suitably framed Regulation to provide for the above and for the
following:
(i) An air hostess having reason to believe that she is pregnant will intimate this
to Air India and will also elect in writing within a reasonable time whether or
not to continue in service.
(ii) If such air hostess elects to continue in service on pregnancy, she shall take
leave from service for a period not later than that commencing from 90 days
after conception and will be entitled to resume service only after confinement
(or premature termination of pregnancy) and after she is certified by the
Medical Officer of AIR INDIA as being fit for resuming her duties as an air
hostess after delivery or confinement or prior termination of pregnancy. The
said entire period will be treated as leave without pay subject to the air
hostess being entitled to maternity leave with pay as in the case of other
female employees and privilege leave under the Regulations.
(iii) Every such air hostess will submit to an annual medical examination by the
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Medical Officer of AIR INDIA for certification of continued physical fitness or
such other specifications of health and physical condition as may be
prescribed by AIR INDIA in this behalf in the interest of maintenance of
efficiency.
(iv) It will be clarified that the provisions relating to continuance in service on
pregnancy will only be available to married women-an unmarried woman on
first pregnancy will have to retire from service.”
109. The learned Senior Counsel relied on paragraphs 105 and 106 at page 1856
which would read as follows:—
“We fail to see how a young and attractive AH would be able to cope with difficult or
awkward situations more effectively than others because smartness or beauty
cannot be the only hallmark of competency. Similar observations were made by the
Mahesh Tribunal in the following terms:

Page: 356

“The management claims this on the ground that the cabin crew service has to be
attractive to passengers.”

110. The argument that AHs should be young and attractive and should possess
pleasing manners seems to suggest that AHs should by their sweet smiles and
pleasant behaviour entertain and look after the passengers which cannot be done by
women of older age. This argument seems to us to be based on pure speculation and
an artificial understanding of the qualities of the fair sex and, if insult to the institution
of our sacred womanhood. Such a morbid approach is totally against our ancient
culture and heritage as a woman in our country occupies a very high and respected
position in the society as a mother, a wife, a companion and a social worker. It is idle
to contend that young women with pleasing manners should be employed so as to act
as show pieces in order to cater to the varied tastes of the passengers when in fact
older women with greater experience and goodwill can look after the comforts of the
passengers much better than a young woman can. Even if the Corporation had been
swayed or governed by these considerations, it must immediately banish or efface the
same from its approach. More particularly such observations coming from a prestigious
Corporation like A.I. appear to be in bad taste and is proof positive of denigration of
the role of women and a demonstration of male chauvinism and verily involves nay
discloses an element of unfavourable bias against the fair sex which is palpably
reasonable and smacks of pure official arbitrariness. The observations of Sastri, C.J. in
Kathi Raning Rawat's case, (AIR 1952 SC 123) (supra), may be extracted thus (at p.
125):—
“All legislative differentiation is not necessarily discriminatory…. Discrimination thus
involves an element of unfavourable bias…. If such bias is disclosed…. it may well
be that the statute will, without more, incur condemnation as violating a specific
constitutional prohibition.”
111. The learned Senior Counsel then brought to our notice paragraph at page
1859 which reads as under:—
“Regulation 46(i)(c) provides that AH would retire on attaining the age of 35 years
or on marriage if it takes place within four years of service. The last limb of this
provision relating to first pregnancy in the case of AHs has already been struck
down by us and the remaining sub-clause (c) has to be read with Regulation 47
which provides that the services of any employee may, at the option of the
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Managing Director, on the employee being found medically fit, be extended by one
year beyond the age of retirement, the aggregate period not exceeding two years.
This provision applies to employees who retire at the age of 58. So far as the AHs
are concerned, under the Regulation the discretion is to be exercised by the
Managing Director to extend the period upto ten years. In other words, the spirit of
the Regulation is that an AH, if medically fit, is likely to continue up to the age of
45 by yearly extensions given by the Managing Director. Unfortunately, however,
the real intention of the makers of the Regulation has not been carried out because
the Managing Director has been given an uncontrolled, unguided and absolute
discretion to extend or not to extend the period of retirement in the case of AHs
after 35 years. The words ‘at the option’ are wide enough to allow the Managing
Director to exercise his discretion in favour of one AH and not in favour of the other
which may result

Page: 357

in discrimination. The Regulation does not provide any guidelines, rules, or principles
which may govern the exercise of the discretion by the Managing Director. Similarly,
there is also no provision in the Regulation requiring the authorities to give reason for
refusing to extend the period of retirement of AHs. The provision does not even give
any right of appeal to higher authorities against the order passed by the Managing
Director. Under the provision, as it stands, the extension of the retirement of an AH is
entirely at the mercy and sweet-will of the Managing Director. The conferment of such
a wide and uncontrolled power on the Managing Director is clearly violative of Article
14, as the provision suffers from the vice of excessive delegation of powers.”

112. I am afraid, that the reliance upon the above case by the learned Senior
Counsel is not at all correct and the Supreme Court decided the case, on totally
different circumstances, which has absolutely no bearing on the facts of this case. The
Supreme Court in S.G. Jaisinghani v. Union of India, AIR 1967 S.C. 1427 has quoted
with approval Diey's concept of Rule of Law and, therefore, the principle is well known
and difficulty would arise only in its application to the facts of a given case. The
learned Senior Counsel placed considerable reliance on the resolution dated
24.12.1965, Annexure P.5 in CW.4545/94. That is a resolution No. 728 passed in an
ordinary meeting of the Delhi Development Authority on 24.12.1965. The subject
matter of the resolution is “change of residential use to the commercial use contrary to
the master plan F-1(12)/64-WD”. The resolution became necessary as the
Commissioner, Municipal Corporation of Delhi had written to the DD A about the use of
residential premises to commercial use and the provisions of Section 29(2) of the D.D.
Act read with Section 14 which would speak of imposition of punishment for
contravention. Therefore, the matter had to be considered in the light of the situation
that prevailed on that date. Paragraphs 4 and 5 of the resolution read as follows:—
“4. In the result, if the requirements of the Master Plan are to be enforced, the only
course open would appear to be for prosecutions to be launched. However a
decision on this point is bound up with the conditions obtaining in the city. For
instance, it is well known that office accommodation in Delhi, both for
Governmental needs and for private commercial houses, is extremely short and it is
because of this shortage, which is certain to continue for quite some time yet, that
residential premises have been obtained on rent by establishments wanting to have
offices in Delhi. The prosecution of property owners, who have let out such buildings
for office accommodation, is thus likely to pose a serious problem and it is,
therefore, for consideration whether prosecutions be launched or whether no notice
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of use contrary to the Master Plan be taken until the present situation substantially
improves.
5. The Standing Committee, in its meeting held on the 14th December, 1965
discussed the matter at length. It was felt that, as office accommodation in Delhi
for governmental needs as well as for private commercial houses is extremely short,
it would not be feasible to launch prosecutions against property-owners for putting
residential premises to commercial use in contravention

Page: 358

of the provisions of the Master Plan, until the present situation in this respect
substantially improves. It was, however, recommended that:—

(i) Positive steps should be taken for early development of district centres in Kalkaji
and Pusa Road, etc. so that the shortage of office accommodation is relieved to
some extent.
(ii) Government may be moved for amendment of the Delhi Development Act and
the Delhi Municipal Corporation Act so as to incorporate there in suitable
provisions which would enable to the concerned public authority to appropriate a
portion of the benefit accruing to property owners as a result of increase in value
of the property on account of its commercialisation; and
(iii) draft regulations under the Delhi Development Act should be put up to the
Delhi Development Authority immediately for approval.”
113. This can't be pressed into service by the petitioners to legalise their illegal
constructions.
114. When a specific question was put by us about the appeal filed by the plaintiffs
in the suits, the learned Senior Counsel said that an amendment petition was filed by
the plaintiffs in the suit and that was not considered by the learned Single Judge and
the petition for amendment is still pending and the decision in the writ petitions will
cover the case in the appeals also. The learned Senior Counsel submitted that
according to him the question is whether the MCD has jurisdiction to issue demolition
notice and the question is not whether the constructions in question are unauthorised
or not. From the arguments advanced by the learned Senior Counsel we can safely
infer the petitioners were conscious of the facts that the construction made by them
are unauthorised and, therefore it is, the ancillary and subsidiary argument on the
discretionary power under section 343 was projected. Therefore, in all the writ
petitions the fact that the constructions are unauthorised is a matter beyond any
doubt. Therefore, on the factual matrix the Court is not invited to adjudicate as there
is no such need. In fine, the crux of the argument of the learned Senior Counsel is that
DDA alone will have jurisdiction over the matter and if DDA comes forward with a
notice of demolition the petitioners have effective answers to the notice and ultimate
authority is only the Central Government.
115. The learned Senior Counsel then advanced arguments with reference to CW.
No. 4882/94 and CW. 429/95. The learned Senior Counsel referred to paras 17 and 18
of the writ petition, which are as under:—
“The properties mentioned above are all constructed by private persons. The
building plans of each one of these properties are sanctioned by Municipal
Corporation of Delhi for constructing residential houses. All these “residential
houses” are put to commercial use. These “residential houses” are no longer the two
and half storeyed residential houses sanctioned by respondent No. 1. These
originally sanctioned “residential houses” are commercial buildings of four/five or
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more storeys, standing right along the road and the Municipal Corporation has not
taken any action against them.
According to the Building Bye-laws (as adopted by the Municipal Corporation

Page: 359

of Delhi) residential buildings cannot exceed ground-floor, first and second floors and
the Barsati floor. The photographs clearly show the floors of these buildings are far in
excess. Even their FARA is in excess of the permitted FAR under the building bye-
laws. The list in paragraph 16 is not exhaustive but illustrative.”

116. The learned Senior Counsel referred to the works study in the first Master Plan
and also the fact that how the pattern of land use maintained by the Corporation and
the learned Senior Counsel submitted the place itself was a business centre. In the
Master Plan in 1962 also the place is referred to as a commercial centre. The learned
Senior Counsel referred to Annexure J at page 79 of the Bye-laws by the Nabi's
Publication. The learned Senior Counsel referred to para 6 page 16 in CW.429/95 for
the purpose of focussing the point of discrimination. The learned Senior Counsel
referred to Addl. Distt. Magistrate, Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521 :
AIR 1976 S.C. 1207 and submitted that the High Court has to consider on the basis of
natural laws. The learned Senior Counsel referred to Article 142 of the Constitution of
India, which reads as follows:—
“142. (1) The Supreme Court in the exercise of its jurisdiction may pass such
decree or make such order as is necessary for doing complete justice in any cause
or matter pending before it, and any decree so passed or order so made shall be
enforceable throughout the territory of India in such manner as may be prescribed
by or under any law made by Parliament and, until provision in that behalf is so
made, in such manner as the President may by order prescribe.
(2) Subject to the provisions of any law made in this behalf by Parliament, the
Supreme Court shall, as respects the whole of the territory of India, have all and
every power to make any order for the purpose of securing the attendance of any
person, the discovery or production of any documents, or the investigation or
punishment of any contempt of itself.”
The learned Senior Counsel said that power of the High Court in Article 226 is as
wide as the power of the Supreme Court in Article 142. As a matter of fact, the
learned Senior Counsel said the power of the High Court under Article 226 is
wider than the power under Article 142. The learned Senior Counsel while
winding up his submissions said that the genesis of all these municipal laws is
only for sanitation and, therefore, what has to be seen is the sanitation aspect of
the problem and according to him sanitation law becomes municipal laws and
Sanitation Committee becomes Municipal Committee.
117. The learned Counsel Mr. Rawal, appearing for the petitionrs in C.W. 5197/94
adopted the arguments of Mr. Lekhi and according to him he was appearing in C.W.
5197/94. The learned Counsel submitted that the MCD had acquiesced in the
unauthorised constructions and the MCD failed to take action at the right time and the
MCD had not acted in accordance with the provisions in the MCD to check
unauthorised constructions and, therefore, MCD is estopped from taking any action.
The learned Counsel also made his submissions on that premise on facts. He relied
upon the passage in Vol. 16 Halsbury 4th Edn. para 1592. He also invited our
attention to the ratio of the Supreme Court in Collector of Bombay v. Municipal
Corporation of the City of Bombay, AIR 1951 S.C. 469 at page 470 and
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Page: 360

also at page 476. He also referred to the decision in Algar v. Middlesex County Council,
1945 (2) All England Reports 243 at page 250. He also referred to West Country
Cleaners (Falmouth) Ltd. v. Saly, 1966 (3) All England Reports page 210 at page 212.
He also referred to the decision in Miss Sangeeta v. Prof. U.N. Singh, AIR 1980 Delhi
27 which dealt with the case of students. He referred to the decision Motilal Padampa
Sugar Mills Co. Ltd. v. The State of Uttar Pradesh, (1979) 2 SCC 409 : AIR 1979 S.C.
621 at 651. He also referred to Estoppel by Revision by Spencer and Bower 3rd Edn.
page 48. Having regard to the principles of estoppel, I do not find any difficulty in
rejecting the contentions of the learned Senior Counsel without any further
consideration of the facts of the case.

118. Mr. G.L. Sanghi, learned Senior Counsel advanced argument in CW.5183/94.
There are two petitioners in the writ petition and the premises is N-5/34, Pusa Road
stated that the agreement to sell was on 5.6.1994 in favour of his clients. On
25.10.1994 there were registered sale deeds and on 13.11.1994 there were some sale
deeds. He stated that misuser cannot warrant demolition. He submitted that
demolition even if it is done it can be only to the extent of the offending area and not
the entire building. That is not the issue here. The authorities will, it is expected, only
demolish the offending portion. But if in a given case the offending portion is so vast if
it is demolished the unoffending portion cannot survive, the authorities cannot help it.
The learned Senior Counsel referring to Sections 346 and 347 of MCD Act, 1957
submitted that there was no notice to the petitioners. The learned Senior Counsel also
stated that the demolition threat not warranted in law. The learned Senior Counsel did
not invite our attention to the facts and circumstances under which the petitioners
purchased the property. Arguments were also advanced by him in C.W. 279/95. It was
contended that the petitioners could rely upon the doctrine of legitimate expectations.
In this connection, paragraph 18 of page 19 of the writ petition was relied on. He
invited our attention to the decision in Food Corporation of India v. Kamdhenu Cattle
Feed Industries, (1993) 1 SCC 71 : AIR 1993 S.C. 1601 paragraphs 7 and 8.
119. Arguments were also advanced in C.W. 5192/94. It was contended that there
was no notice and for the ground floor sanction was granted for commercial use by the
MCD.
120. Mr. Prashant Bhushan advanced arguments in W.P. 482/95 and W.P. 345/95.
He submitted that plans were sanctioned for commercial purposes in premises No. 24,
Patel Nagar and there are other unauthorised constructions, no action taken by the
Corporation. Mr. Manmohan also argued contending that as per Unnikrishnan's case,
(1993) 1 SCC 645, decided by the Supreme Court, this Court has got power to lay
down policy and on the facts and circumstances of this case, this Court may frame as
a scheme as to whether relating to the unauthorised construction. No question of
giving any guidelines or laying down policy would arise as the matter is governed by
statutory provisions.
121. On 22.2.1995 Mr. Lekhi; learned Senior Counsel again made few submissions
and brought to our notice the office order issued by the Commissioner, M.C.D. on
4.4.1986 where priorities for demolitions are given. The office order reads as follows:—
“OFFICE OF M.C.D. COMMISSIONER

Page: 361
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Town Hall

No. 11/C Delhi

Dated 4.4.86
Office Order
In partial modification of office Order No. 38/Bldg. dated 5.9.1977, priorities of
demolition of unauthorised construction will be as under:
First Priority;
(a) Cases of unauthorised construction of commercial nature such as markets,
offices, godowns which have been dismissed/remanded from the Courts.
(b) Unauthorised construction of commercial nature including cases where
unauthorised structure was demolished and has been reconstructed.
(c) All cases of commercial as well as residential nature where sanction of building
plans is revoked.
(d) Unauthorised construction of new colonies on green agricultural land/private
land.
(e) Unauthorised construction of residential nature which has been dismissed from
the Court, including the cases of unauthorised construction which affect rights
(light, ventilation, passage etc. of neighbors).
Second Priority;
(a) Cases of unauthorised construction effected by any structure or coming in the
right of way of the road.
(b) Unauthorised construction or residential nature in set backs of residential and
non-residential buildings.
Third Priority;
All other cases which are not covered in priorities mentioned above.
2. The inter-se priority for demolition of unauthorised constructions in any of the
above categories will be fixed by the concerned Zonal Engineer (B) himself the
guiding principle being that in the same category, cases in which demolition
orders have been passed last should be demolished first.
3. The cases will be entered in the demolition register sectionwise i.e. the matured
cases of the area of each Junior Engineer will be recorded separately in the
demolition register in the order detailed above and the demolition action will be
taken by the Jr. Engineer accordingly.
4. Out of turn demolition action can be taken, where deemed necessary, after
obtaining specific order from the Addl. D.C./Zonal Asstt. Commissioner in charge
of the Zone.
5. Daily demolition programme of the Zone will be specifically prescribed by the
Addl. D.C./Zonal Assistant Commissioner/Zonal Engineer

Page: 362

(Bldg.) in accordance with the area/JE wise priorities prescribed in above paras and
will not be left to the lower staff.

6. ADCs/ZACs/ZE(B) shall personally ensure that on an average four cases per

demolition squad are pulled down every day. Monthly progress report on
demolition will be sent by Addl.DC/Zonal Asstt. Commissioner to the Executive
Engineer in the proforma already circulated by 7th of each month who will
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submit a consolidated report to Commissioner by 10th of every month.

7. No official of the Vigilance Department below the rank of Dy. Director of Vigilance
shall call for a file from the Building Department. The Vigilance Department will
not keep the files of the building Department for more than 10 days without the
approval of Dy. Commissioner. The files concerning unauthorised construction
should be returned by the Vigilance Department after taking extracts, if
necessary, so that the processing of Vigilance cases and action against
unauthorised construction go on simultaneously.
8. Site inspection of unauthorised construction cases shall be carried out to the
following extent:
ZAC 5% of total cases booked in a month ZE(B) 20% of total cases booked in a
month.
9. It should be noted that ADCs/ZACs exclusively responsible for the administrative
control of Bldg. Department including the unauthorised construction and should
take necessary disciplinary action against the erring officials at their own level.
10. Sometimes complaints are received from the Zones that trucks are not available
for demolition purposes. Instructions already exist that zones may engage trucks
and labour as and when required by them on hire.
11. ADC/ZAC/ZE(B) will chalk out programme of demolition in such a way that each
J.E. demolish unauthorised construction of 2nd and 3rd priorities also at least
once a month each, so that unauthorised construction of all categories are
demolished side by side.
This order will take immediate effect and is issued for strict compliance.
sd/-
(V.K. Kapoor)
COMMISSIONER”
122. According to learned Senior Counsel if the priorities are to be followed at the
discretion of the authorities no unauthorised building will be demolished and it will
become ah arbitrary exercise of powers by the authorities and whether the buildings in
question would come under a priority category would again be decided arbitrarily by
the authorities. The learned Senior Counsel relied upon a few passages in Delhi
Municipal Digest by Mr. Verma which do not render any assistance for deciding the
dispute in this case.

Page: 363

123. The learned Senior Counsel Mr. Arun Jaitley appearing for MCD formulated his
submissions thus, (i) the petitioners are guilty of misrepresentation and suppression
of material facts and, therefore, they are not entitled to invoke equitable jurisdiction
under Article 226 of the Constitution of India; (ii) some of the petitioners are guilty of
civil contempt because they claim rights under sale deeds executed after 2.11.1994
when the learned Single Judge of this Court restrained the owners from creating any
third party interest in the properties; (iii) in respect of ten properties in question about
65 proceedings have been initiated since 21.1.1994 in different Courts. In most of the
cases the pendency of the earlier proceedings and the orders passed in the earlier
cases were not disclosed and all the unauthorised constructions were carried out after
obtaining stay orders from the Original Side of this Court from 21.1.1994; (iv) that the
petitioners in the writ petitions and the appellants in the appeals against the orders of
the learned Single Judge have with impunity had acted in violation of several laws
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governing the construction of buildings and they are against public interest and
indirectly they seek to regularise those violations by invoking the jurisdiction of this
Court. The details of the suits filed and the writ petitions filed need not be elaborately
referred to.

124. The learned Senior Counsel submitted that while filing civil suits
representations were made that the constructions have been made in accordance with
the sanctioned plans and also the Delhi Municipal Corporation Act and the building bye
-laws but actual facts were suppressed. Later on, when the MCD entered appearance in
the suit facts were completely clarified and placed before the Court and the Court
vacated the orders of injunctions passed earlier. It is further contended that having
failed before the Civil Court deliberately without mentioning those facts the persons
claiming rights through the plaintiffs in the civil suits had filed writ petitions on false
representations and, therefore, inasmuch as the petitioners based their claim on
falsehood and fraud, they are not entitled to any indulgence from this Court. The
learned Senior Counsel relied upon the following cases:—
1. 1917 (1) K.B. 486 (C.A.) at page 504, The King v. The General Commissioners
for the Purposes of the Income Tax Acts for the District of Kensington.
2. AIR 1940 Lahore page 69, Basheshar Nath v. Municipal Committee, Moga.
3. (1978) 2 SCC 209, Udai Chand v. Shanker Lal.
4. AIR 1978 Punjab & Haryana 326, Tetar Mandal v. Executive Officer.
5. 36 (1988) DLT 304, Anand Swarup v. Municipal Corporation of Delhi.
6. AIR 1992 Delhi 197, Seemax Construction (P) Ltd. v. State Bank of India.
7. 1994 (30) D.R.J. 153, T.A. George v. DDA.
8. (1994) 1 SCC 1 : AIR 1994 S.C. 853, S.P. Chengalvaraya Naidu (dead) by L.Rs.
v. Jagannath (dead) by L.Rs..
125. In the first case referred to above, the Court of Appeal in England decided

Page: 364

about the conduct of the person for the grant of relief of injunction. The Court
observed at page 495 as under:—

“Before I proceed to deal with the facts I desire to say this: Where an ex parte
application has been made to this Court for a rule nisi or other process, if the Court
comes to the conclusion that the affidavit in support of the application was not
candid and did not fairly state the facts, but stated them in such a way as to
mislead the Court as to the true facts, the Court ought, for its own protection and to
prevent an abuse of its process, to refuse to proceed any further with the
examination of the merits. This is a power inherent in the Court, but one which
should only be used in cases which bring conviction to the mind of the Court that it
has been deceived. Before coming to this conclusion a careful examination will be
made of the facts as they are and as they have been stated in the applicant's
affidavit, and everything will be heard that can be urged to influence the view of the
Court when it reads the affidavit and knows the true facts. But if the result of this
examination and hearing is to leave no doubt that the Court has been deceived,
then it will refuse to hear anything further from the applicant in a proceeding which
has only been set in motion by means of a misleading affidavit.”
126. Lord Cozens-Hardy M.R. observed at page 505 as under:—
“That is merely one and perhaps rather a weighty authority in favour of the general
proposition which I think has been established, that on an ex parte application
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uberrima fides is required, and unless that can be established, if there is anything
like deception practised on the Court, the Court ought not to go into the merits of
the case, but simply say “We will not listen to your application because of what you
have done.”
127. In the second case referred to above, Mr. Justice Din Mohammad of the Lahore
High Court observed at page 70 as follows:—
“Under Sec. 56(j), Specific Relief Act, an injunction cannot be granted when the
conduct of the applicant or his agents has been such as to disentitle him to the
assistance of the Court. This provision has been interpreted in various decisions and
they all unanimously lay down that he who seeks equity must do equity and, unless
the plaintiff comes into Court with clean hands, no relief should be granted to him
by way of injunction. In Rangammal v. Venkatachari, (1895) 18 Mad 378, the
following remarks of Story were quoted with approval:
The Court cannot but leave the guilty plaintiff to the consequences of his own
inequity and decline to assist him to escape from the toils which he had studiously
prepared to entangle others.
In Seeni Chettiar v. Santhanathan Chettiar, (1896) 20 Mad 58 at p.67, it was
observed:
That rule (Sec. 56, Clause (j), Specific Relief Act) rests on the maxim that he who
seeks equity must do equity and implies that a plaintiff seeking an injunction must
come with clean hands. With reference to this point, it is laid down in Kserr on
Injunctions, on the authority of the case therein cited, that a plaintiff, who asks for
an injunction, must be able to satisfy the Court that his own acts and dealings in
the matter have been fair and honest and free from any taint

Page: 365

of fraud or illegality, and that if, in his dealings with the person against whom he
seeks relief or with third parties, he has acted in an unfair or inequitable manner, he
cannot have relief.

The facts as set out above clearly indicate that the plaintiffs inveigled the
Committee into passing a resolution which is now being attacked as ultra vires. The
Committee had rejected the application for sanction” in unequivocal terms more
than a year before the resolution of 8th December was passed. In fact, even a suit
had been instituted to contest the notice issued by the Municipal Committee. The
attitude of the Committee changed only when the plaintiffs made an offer of Rs.
3000 to Lala Chandu Lal for being allowed to put up the proposed structure. It was
on that representation that Lal Chandu Lal intervened as a mediator and at the
request of one of the plaintiffs made an oral offer of Rs. 3000 on behalf of the
plaintiffs. The Committee made a counter offer and resolved that if the plaintiffs
paid Rs. 2000 permission could be given to the constructing of a part of the roof.
The plaintiff's treat this offer as a permission granted by the Committee under Sec.
172 and want to utilize that portion of the permission which benefits them and to
repudiate that part of it which goes against them. In other words, they want to put
up the construction without any payment on the ground that the Committee had no
authority to demand that payment. This is rank dishonestly.”
128. In the third case, referred to above, the Supreme Court extracted the
following passage from an earlier case decided by the Supreme Court:—
“Exercise of the jurisdiction of the Court under Article 136 of the Constitution is
discretionary: it is exercised sparingly and in exceptional cases, when a substantial
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question of law falls to be determined or where it appears to the Court that
interference by this Court is necessary to remedy serious injustice. A party who
approaches this Court invoking the exercise of this overriding discretion of the Court
must come with clean hands. If there appears on his part any attempt to overreach
or mislead the Court by false or untrue statements or by withholding true
information which would have a bearing on the question of exercise of the
discretion, the Court would be justified in refusing to exercise the discretion or if
the discretion has been exercised in revoking the leave to appeal granted even at
the time of hearing of the appeal.”
129. In the 4th case, referred to above, the Punjab & Haryana High Court following
the decision of the Court of Appeal quoted from the decision of the Full Bench of the
Allahabad High Court, which is in the following terms:—
“A person obtaining an ex parte order or a rule nisi by means of a petition for
exercise of the extraordinary powers under Art. 226 of the Constitution must come
with clean hands, must not suppress any relevant facts from the Court, must refrain
from making misleading statements and from giving incorrect information to the
Court. Courts, for their own protection, should insist that persons invoking these
extraordinary powers should not attempt, in any manner, to misuse this valuable
right by obtaining ex parte orders by suppression, misrepresentation or
misstatement or facts. Applying this principle to the present case, we feel that, in
this case, the petitioner-Company has disentitled itself to ask for a writ of
prohibition by material suppression,

Page: 366

misrepresentations and misleading statements which have been found by us above.”

130. Ultimately, the Punjab & Haryana High Court said “agreeing with the long line
of precedents and affirming a rule which appears to us hoary by usage, we hold that
the writ petitioners, in the present case, have by their own conduct disentitled
themselves to the relief which they sought to claim.”
131. In the 5th case, referred to above, Mr. Justice B.N. Kirpal (as he then was)
sitting singly observed as under:—
“It is a cardinal principle of law that a person must come to the Court with clean
hands if he seeks an injunction under Order 39 Rules 1 and 2. In the present case
the conduct of the plaintiff leaves much to be desired. As already noted, the
plaintiff has had little regard to tell the truth and has time and again
misrepresented the true facts in Court. Such deliberate attempt on the part of the
plaintiff to mislead the Court may or may not amount to a contempt but will
certainly, to my mind, disentitle the plaintiff to any interim relief. On this ground
alone, therefore, the plaintiff is not entitled to the injunction prayed for.”
132. In the 6th case, referred to above, my Lord Mr. Justice Y.K. Sabharwal was
pleased to consider a case under similar circumstances and was pleased to observe as
under:—
“The suppression of material fact by itself is a sufficient ground to decline the
discretionary relief of injunction. A party seeking discretionary relief has to approach
the Court with clean hands and is required to disclose all material facts which may,
one way or the other, affect the decision. A person deliberately concealing material
facts from Court is not entitled to any discretionary relief. The Court can refuse to
hear such person on merits. A person seeking relief of injunction is required to
make honest disclosure of all relevant statements of facts otherwise it would
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amount to an abuse of the process of the Court. Reference may be made to decision
in The King v. The General Commissioners for the purposes of the Income-tax Acts
for the District of Kensington, 1917 (1) King's Bench Division 486 where the Court
refused a writ of prohibition without going into the merits because of suppression of
material facts by the applicant. The legal position in our country is also no different.
(See: Charanji Lal v. Financial Commissioner, Haryana, Chandigarh, AIR 1978
Punjab and Haryana 326 (FB). Reference may also be made to a decision of the
Supreme Court in Udai Chand v. Shankar Lal, (1978) 2 SCC 209 : AIR 1978 SC
265: (1978) 2 SCC 209. In the said decision the Supreme Court revoked the order
granting special leave and held that there was a misstatement of material fact and
that amounted to serious misrepresentation. The principles applicable are same
whether it is a case of misstatement of a material fact or suppression of material
fact.”
133. In paragraph 12 what my Lord observed is more relevant and reads as
follows:—
“The tendency of the litigants to approach different Courts to somehow or the other
obtain interim orders without full disclosure of the earlier judicial proceedings and
without full disclosure of all material facts is on constant

Page: 367

increase and it is necessary for due administration of justice to reiterate the legal
proposition that such a person may be refused a hearing on merits.”

134. In the 7th case, as referred to above, my Lord, Mr. Justice Jaspal Singh
observed at page 159, which is as follows:—
“For an ex parte interim injunction the Court requires uberrima fides on the part of
the applicant. This being the accepted legal position right from the days of King's
Bench Division Judgment in The King v. The General Commissioners for the
purposes of the Income Tax Acts for the District of Kensington 1917 (1) KB 486 the
learned Additional Judge legally could and rightly did refuse to grant to the
appellants the relief of temporary injunction.”
135. In the 8th case, referred to above, the Supreme Court observed at page 855
as under:—
“The Courts of law are meant for imparting justice between the parties. One who
comes to the Court, must come with clean hands. We are constrained to say that
more often than not, process of the Court is being abused. Property-grabbers, tax
evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life
find the Court process a convenient lever to retain the illegal gains indefinitely. We
have no hesitation to say that a person whose case is based on falsehood, has no
right to approach the Court. He can be summarily thrown out at any stage of the
litigation.”
136. There is considerable force in the submissions made by the learned Senior
Counsel and the writ petitions deserve to be dismissed on this score alone.
137. But having regard to the large canvas of arguments, and with due deference
to the learned Senior Counsel who argued for various writ petitioners, we dealt with all
the arguments submitted by the learned Counsel.
138. The second point submitted by the learned Counsel regarding the civil
contempts committed by the petitioners. This Court while passing orders on 2.11.94 in
suits categorically imposed an embargo that the plaintiffs will neither induct anyone
nor create third party interest in the properties in question. This Court, as a matter of
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fact, had given liberty to the MCD to give public notice in this behalf. Pursuant to the
directions issued by this Court, a public notice, as a matter of fact, was issued by MCD
on 9.11.1994 warning the public that acquiring any interest in the properties in
question they will be doing so at their own risks. In flagrant disobedience to the orders
passed by mis Court, the plaintiffs in those suits had temerity to effect transfers in
favour of third parties. The details of the writ petitions in which sale transactions had
been entered into, after the passing of the orders of this Court on 2.11.1994 by the
Hon'ble Ms. Justice Usha Mehra are as follows:—
1. CW. No. 5213/94 Ritesh Industries v. MCD.
Sale deed executed on 2.12.94 (one month after the passing of the order).
2. C.W. 5186/94 Phoenix International v. UOI. Sale deed dated 8.11.94.
3. C.W. 5192/94 Sunil Narula v. UOI.

Page: 368

Sale deed dated 5.12.1994.

4. C.W. 5183/94 Jindal Drilling & Industries v. UOI.

Sale deed dated 13.11.1994.
5. C.W. 5205/94 Tiruvandagam Investment P. Ltd. v. UOI. Sale deed on 8.11.1994.
139. The learned Senior Counsel contended that the parties are guilty of civil
contempt and they cannot rely upon the sale deeds and then seek to protect a case
that they were not aware of the orders passed by this Court and they are all bona fide
purchasers for value without notice. Learned Senior Counsel contended that the writ
petitions are liable to be dismissed. The learned Counsel relied upon the following
cases:—
1. 1952 (2) All England Reports 567, Hadkinson v. Hadkinson.
2. 45 (1975) Company Cases 444 at page 448, Century Flour Mills Ltd. v. S.
Suppiah.
3. (1988) 2 SCC 602, A.R. Antulay v. R.S. Nayak.
4. Judgment dated 25.1.1995 in SLP No. 21000/93 DDA v. Skippers Construction
(JT 1995 (2) S.C.) 391.
5. 1974 (3) All England Reports 217.
6. AIR 1977 Allahabad 83 (Referred to 1974 (3) All England Reports).
140. In the first case, referred to above, the Court of Appeal in England recording
the obedience of orders passed by the Courts, Romer, L.J. observed as under:—
“It is the plain and unqualified obligation of every person against, or in respect of,
whom an order is made by a Court of competent jurisdiction to obey it unless and
until that order is discharged. The uncompromising nature of this obligation is
shown by the fact that it extends even to cases where the person affected by an
order believes it to be irregular or even void.”
Denning, L.J. observed as follows:—
“The Court would only refuse to hear a party to a cause when the contempt
impeded the course of justice by making it more difficult for the Court to ascertain
the truth or to enforce its orders and there was no other effective means of securing
his compliance. The Court might then in its discretion refuse to hear him until the
impediment was removed or good reason was shown why it should not be
removed.”
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141. In the second case, referred to above, the Full Bench of the Madras High Court
observed as follows:—
“Where in violation of a stay order or injunction against a party, something has
been done in disobedience, it will be the duty of the Court as a policy to set the
wrong right and not allow the perpetuation of the wrong doing. In our view, the
inherent power will not only be available in such a case, but it is bound to be
exercised in that manner in the interests of justice.”

Page: 369

142. In the third case, referred to above, it was observed by the Supreme Court that
the wrong committed by anybody must be remedied by the Courts.

143. In the 4th case cited above, the Supreme Court had observed that anybody
who commits wrongs against society should not be left unpunished.
144. Here in the instant case, the petitioners, who attempted to put up building
without obtaining sanction from the concerned authorities, cannot be heard to contend
that they have not committed any wrong and the MCD has no jurisdiction.
145. In the 5th case, referred to above, Lord Denning observed as follows:—
“It was Lord Bacon in his essay on Judicature who said: ‘The principal duty of a
Judge is to suppress force and fraud’. As part of this it is the duty of a Judge to
denounce wrong-doing when it is established before him. He speaks for all law-
abiding citizens. His words uphold the opinion of the good. And shake the
confidence of the wicked. By condemning wrongdoing, he reinforces the moral
sanction on which law and order so much depend.”
146. In the 6th case, referred to above, a Division Bench of the Allahabad High
Court followed the principles laid down by Lord Justice Denning.
147. The third submission of the learned Counsel is the abuse of process of law.
The learned Counsel submitted that proceedings have been initiated with reference to
the buildings without disclosing the earlier proceedings and the orders passed therein.
It is submitted that the petitioners, builders and the owners entered the arena of
adventurism and, therefore, they are not entitled to be heard at all in respect of the
contentions raised by the petitioners in the writ petition. He brought to our notice the
following decisions of the Supreme Court:—
1. (1980) 3 SCC 311 : AIR 1980 S.C. 946, The Advocate General, State of Bihar v.
Madhya Pradesh Khair Industries.
2. (1994) 6 SCC 322, Bloom Dekor Limited v. Subhash Hintatlal Desai.
3. 1995 (1) Apex Decisions (SC) 229.
4. Order of the Supreme Court dated 8.2.1995 in SLP (C) No. 21000/93; DDA v.
Skipper Constructions, J.T. 1995 (2) S.C. 391.
148. In the first case, referred to above, the Supreme Court had occasion to deal
with a situation where an abuse of process of Court amounted to contempt. A person
in stead of filing a case in the Patna High Court filed the same in Calcutta High Court.
Their Lordships of the Supreme Court referred to the various circumstances under
which the person concerned abused to the process of Court. Their Lordships quoting
very judgment of the Supreme Court of India states, which are in the following terms:
—
“It is a mode of vindicating the majesty of law, in its active manifestation against
obstruction and outrage”. Per Frank Further, J. in Offutt v. U.S., (1954) 348 US 11.
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“The law should not be seen to sit by limply, while those who defy it go free,

Page: 370

and those who seek its protection lose hope”. Pser Judge, Curtis-Raleigh quoted in
Jennison v. Baker, (1972) 1 All ER 997 at p. 1006.”

149. Their Lordships punished the person for contempt. As pointed out by the
Supreme Court, the petitioners were playing a game by filing these writ petitions
when the applications for injunctions were dismissed by civil Courts.
150. In the cases referred to as items 2 and 3 above, Supreme Court reiterated the
principles stated earlier. In the case referred to as 4th item also, the Supreme Court
put down strongly the attitude of a building contractor.
151. The next point that was argued by the learned Senior Counsel was that the
petitioners had violated the law and, therefore, they cannot seek any relief in this
Court under Article 226 of the Constitution of India. As earlier pointed out earlier, the
fact that there has been violations of the bye-laws is not a matter of admission by the
petitioners. But what is argued on behalf of the petitioners is that a discretion that is
vested in the Commissioner under Section 343 because the word used is ‘may’ in that
section and, therefore, the Commissioner cannot pick and choose for the purpose of
demolishing the buildings constructed in violation of the law. In other words, the word
‘may’ does not mean shall. The learned Counsel brought to the notice that in Rahul v.
MCD, CM(M) 59/93 where it is held that merely because an unauthorised construction
is transferred and goes into many hands, the basic character of the nature of the
construction would not change or the unauthorised construction would not become an
authorised one. About the notice not having been served upon the petitioners, it was
contended by the learned Senior Counsel for the MCD that the notice under Section
343 is to be served only on a person at whose instance the construction has been
made. He relied on the decision Ram Narain v. Municipal Corporation of Delhi, 1991
(44) DLT page 441. Touching on the scheme of the law pertaining to the construction
of the buildings in the city, the learned Senior Counsel submitted that Section 7 of the
Delhi Development Act provides for the framing of the Master Plan. Section 8 provides
for the planning of Zonal Development Plan. As per Section 14 of that Act, that after
coming into force of the plans no land shall be used or permitted to be used for any
purpose contrary to the plans. Therefore, under the law no one can be permitted to
use the land nor can the Municipal Corporation permit anybody to use the land
contrary to the plans. Section 53(2) of the D.D.A. Act provides that the Act and the
Rules framed there under shall prevail over every other legislation to the contrary.
Therefore, there is a clear mandate to the authorities to conform to the law. Looking at
the scheme of things and Section 343 of the D.M.C. Act the role of the Commissioner
becomes a power coupled with the performance of a public duty and he has to keep in
mind the public interest and he is the authority for enforcing the law. It cannot be
contended that the building bye-laws and the Regulations and Rules framed
thereunder are not in public interest. Therefore, looking at the power in its proper
perspective in Section 343 of the DMC Act of the Commissioner, the learned Counsel
would contend that the ‘may’ should be read as ‘shall’. He invited our attention to the
following cases:—
1. AIR 1963 S.C. 1618, State of Uttar Pradesh v. Jogendra Singh.
2. (1974) 2 SCC 506 : AIR 1974 S.C. 2177 at page 2181, K. Ramadas Shenoy v.
The Chief Officers Town Municipal Council Udipi.
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Page: 371

3. (1980) 1 SCC 258 at page 263, State (Delhi Admn.) v. I.K. Nangia.

4. 1981 (1) Andhra Weekly Reports page 166.

5. AIR 1984 Kerala 170 at page 176, P. Saina v. Kondseri.
6. (1991) 3 SCC 341 at page 345, Pratibha Cooperative Housing Society Ltd. v.
State of Maharashtra.
7. (1991) 4 SCC 54 : AIR 1991 S.C. 1902 at page 1913, Bangalore Medical Trust v.
B.S. Muddappa.
8. (1992) 2 SCC 426 at page 434, Sanjay Place Group Housing Association v. Agra
Development Authority.
152. Meeting the submissions of the learned Counsel for the petitioners with
reference to the decision of the Supreme Court in Corporation of Calcutta v. Mulchand
Agarwala, AIR 1956 S.C. 110, the learned Counsel submitted that even the judgment
would stipulate that the word ‘may’ would indicate only ‘shall’ and that is easily
distinguishable on the merits.
153. In controverting the arguments on behalf of the petitioners mat there are
several unauthorised constructions in the city and the authorities have acted in a
discriminatory fashion in choosing to demolish only the properties mentioned in the
petitions and also the properties subject matter of the appeals and consequently the
action of the authorities come within the mischief of the Article 14 of the Constitution
of India, the learned Senior Counsel submitted that such an argument cannot at all be
countenanced because a person who seeks equity must do equity and it is a basic
principle of law no man can take advantage of his own wrong and it is submitted that
the Constitution seeks to protect under Article 14 only those persons who have been
discriminated or denied equal protection or who deserve succour against arbitrary
actions of the authorities and Article 14 is not intended to protect the wrong doers. If
the contention of the petitioners is accepted, then no law can be enforced and the
enforcement of any provisions of law would depend upon the sweet will and pressure
of a particular individual. It is axiomatic that no man can take advantage of his own
wrong. The petitioners have completely ignored their duties to the society as
envisaged under the provisions of the Constitution. It is really disturbing that the law
breakers should with impunity try to take umbrage under cover of discrimination
calling in aid, the pervasive and the most potent weapon in the hands of the Courts
against arbitrary action of any authority functioning within the territory of India. We
cannot subscribe to the view that such persons, as the petitioners, would be entitled
to a hearing. Under the constitutional set up, as declared by Chief Justice Marshall of
the United States of Supreme Court the only organ of the State which can have
effective control over the enforcement of laws is the Court and in that sphere the Court
and the Court alone should have a final say. When we are governed by rule of law, in
my view, no Court will be justified in entertaining any argument on behalf of the
petitioners.
154. Learned Counsel for the MCD brought to our notice the following decisions:—

Page: 372

1. 1975 Labour & Industrial Cases 1624.

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2. 1987 (I) Karnataka Law Journal 163.

3. 1994 (28) D.R.J. 563.
4. 1994 (I) Apex Decision 1002 at page 1009.
5. 1995 (I) Apex Decision (S.C.) 265.
155. In the case first referred to above, Full Bench of this Court observed in para
41 in the following terms:—
“It is well settled that Article 14 has no application where action is taken by the
authorities to remove one evil and merely because no action is taken to remove
another alleged evil it cannot be said that evil which is sought to be removed is hit
by the provision of Article 14 of the Constitution. It may be that two persons may
commit different offences but only one person is prosecuted by the authorities. The
one who is prosecuted cannot complain of violation of Article 14 merely because the
other one is not prosecuted. Article 14 has no application in such cases.”
156. In the second case referred to above, the Karnataka High Court expressed this
view in very clear terms in the following manner:—
“In this petition the petitioner has assailed the proposed action of the respondent-
State of Karnataka and its officers in the Excise Department directing re-auction of
bids which had once been confirmed in favour of the petitioner on the sole ground
that respondents 22 to 35 are also defaulters but whose bids at the auctions,
confirmed in their favour have not been subjected to re-auction, and therefore, the
right of the petitioner for equal treatment assured under Article 14 of the
Constitution has not been meted out to it (Form of Parnters).
It is difficult to envisage discrimination when the law is given effect to. If the
challenge is to the law on the ground that it discriminates then that could be
examined. But, in the enforcement of the law if there has been discrimination, it
cannot be complained of by one who admittedly stands disqualified by the law.
Reliance in this behalf placed by Sri Narasimha Murthy, on the decision of the
Supreme Court in Vishundas Hundumal etc. v. The State of Madhya Pradesh (A.I.R.
1981 S.C. 1636) is really not of much assistance to support the claim made by the
petitioner. It was conceded there that the Nationalisation of certain routes for the
exclusive operation of the State undertaking under Chapter-IV (A) of the M.V. Act
had resulted in the discrimination of some others who had been permitted to
operate on the very nationalised routes. That was stated to be on account of
inadvertance or over-sight on the part of the Government agency. In that
circumstance, the Supreme Court observed that denial of equal protection flowed
from State action and had the direct impact on the fundamental rights of the
petitioners therein. Therefore, the Supreme Court made what they described as the
constructive approach by eliminating the discrimination by permitting the
petitioners also to operate on those nationalised routes.”

Page: 373

157. In the third case referred to above, this Court dealt with the case of a student
who failed to pass the examination held for the XI standard to become eligible to
study in the XII standard claimed transfer certificate which would entitle him to get
admission in XII standard in some other institutions. His case was that in respect of
some other students the management had issued transfer certificate to that effect.
The management explained the circumstances under which the transfer certificate
enabling the students to get admission in XII standard in other schools and the
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management submitted that such a practice had been discontinued. His Lordship Mr.
Justice R.C. Lahoti speaking for the Division Bench observed as under:—

“We have grave doubts if the respondents were justified in adopting the policy of
issuing transfer certificates or giving promotions to higher class as an exception
merely on ‘humanitarian consideration’ inspite of the performance of the student
not justifying promotion to higher class. Such policy has been discontinued. The
petitioner has not been able to cite any instance where inspite of having failed, a
student might have been promoted to higher class. We can not also approve the
action of the respondent institution issuing transfer certificates entitling the
students in two exceptional cases to admission in higher class in other institutions.
We are not satisfied that grounds—on which respondent institution proceeded to
work out exceptions, could have been valid grounds for justifying such exceptional
approach. We have, therefore, to see if the petitioner can be assisted by issuing a
writ commanding the respondent institution to issue similar transfer certificate to
the petitioner. Suffice it to refer to a Division Bench decision of this Court in the
Chief Commissioner v. Mrs. Kitty Puri, AIR 1973 Delhi—wherein it has been held
that a denial of illegal favour cannot amount to discriminatory treatment violative of
principle of equality Article 14 of the Constitution.”
158. We may also refer to a recent decision of the Supreme Court in Madras
Fertilizers Lid. v. Asstt. Collector of Central Excise [JT 1994 (1) SC 150] wherein their
Lordships have reiterated their own view in Coromandal Fertilizers Ltd. v. Union of
India, [1958 (1) SCR 523] as under:—
“A wrong decision in favour of any particular party does not entitle any other party
to claim the benefit on the basis of the wrong decision.”
159. In the 4th case referred to above, this Court dealt with a case where the
petitioner claimed a plot for industrial purposes on concessional rates, when as per the
statutory rules he was not entitled to the same. It was his case that persons similarly
situated like him, who were also not entitled to get on concessional rates, the
respondent-DDA had allotted plots on concessional rates, and therefore, DDA cannot
have any objection to allot a plot to him on concessional rates. Deciding the matter His
Lordship Mr. Bhat observed as under:—
“On these pleadings, it is not possible for me to hold definitely that petitioner has
been discriminated. Further, in case, a few individuals or individual units were
wrongly favoured by the Ist respondent, this Court cannot compel the Ist
respondent to repeat the same wrong doing in favour of the petitioner by recourse
to Article 14 of the Constitution of India. There cannot be a constitutional right to
be illegally favoured only because, a few others were so favoured. Petitioner shall
have to establish that under the relevant statutory

Page: 374

provisions or under the law governing the allotment of industrial sites by the Ist, he is
eligible for allotment at a concessional rate. The relevant principle is stated in Narain
Dass v. Improvement Trust, Amritsar, (1973) 2 SCC 265 : AIR 1972 SC 865 at page
871:—

“Equal laws have to be applied to ail persons in the same situation and there must
be no discrimination between one person and another if as regards the subject
matter of the legislation their position is substantially the same. Section 56 does
not suffer from any vice offending Article 14 and indeed it was not so contended by
Shri Gupte. What was contended by him was that while administering Section 56
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there has been hostile discrimination against the appellants because lands under
orchards belonging to persons similarly placed have been exempted whereas the
appellants have been refused exemption. No doubt, equal protection can be denied
as much by the administration of a law as by legislation……..In any event if the
appellants have failed to bring their case within Section 56 of the Act then merely
because some other party has erroneously succeeded in getting his lands exempted
ostensibly under that section that by itself would not clothe the present appellants
with a right to secure exemption for their lands. The rule of equality before the law
or of the equal protection of the laws under Article 14 cannot be invoked in such a
case.”
160. The learned Counsel then argued on the question relating to the scheme
framed under the United Provinces Town Improvement Act, 1919 and the same being
in existence has contended for by the petitioners. The learned Counsel submitted that
no document has been filed to show about the existence of any scheme under that
Act. As already noticed, the agreement between the Delhi Improvement Trust and
party referred to in CW.4958/94 is of no help. Further, the learned Counsel submitted
assuming that there was any scheme that cannot be said to be in force after the
coming into force of the Act in 1957. The learned Counsel brought to our notice the
several provisions of the Acts.
161. Rebutting the arguments on behalf of the petitioners under Section 60 of the
Delhi Development Act, 1957, which has already been extracted above, the learned
Counsel submitted what are the rights saved or specifically mentioned in the
provisions itself and there can never be a vested right with reference to the procedure
to be followed. He relied upon the following cases:—
1. AIR 1971 S.C. 974 at page 979.
2. (1985) 1 SCC 436 at page 441.
3. 1961 (2) All England Reports 721 at page 730.
4. (1991) 4 SCC 333, 337, 378.
5. AIR 1980 S.C. 77 at page 81.
6. AIR 1955 N.U.C. 1122.
7. AIR 1964 S.C. 1333 (1336).
8. 1965 (I) SCR 323.
9. AIR 1972 S.C. 1826.

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162. In view of the fact that the proposition of law is very clear, we feel that it is not
necessary to refer to the facts in each of these cases.

163. The learned Counsel asserted that when an area is specifically developed as a
development area DDA comes into the picture on a reading of the provisions of D.D.A.
Act and of M.C.D. Act, 1957.
164. With reference to nazul lands, provisions are made under the D.D. Act in
Sections 22 and 22A of the Act. According to the learned Counsel Nazul land does not
ipso facto become a developed area. He referred to Section 2-E of the D.D. Act as to
the definition of the developed area. Because a land is a zonal land the municipal
functions and powers cannot be assumed by the DDA. Nazul land and developed area
are two distinct things under the D.D.A. Act, 1957.
165. About the argument that under the lease deed, which has already been
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extracted, permission is to be obtained from the lessor namely Delhi Improvement
Trust would not make M.C.D. Act inapplicable to the area. The obtaining permission
from the lessor is different from obtaining sanction from MCD. The learned Counsel
specifically stated that the reliance placed by the petitioners upon Indian Express
case, AIR 1986 (I) SCC 133 (supra) is of no avail to the petitioners.
166. Meeting the argument on the ground of estoppel, the learned Counsel
submitted and in my view rightly, there is no scope for the applicability on the
principle of estoppel when the petitioners are guilty of violation of law.
167. Controverting the argument on the point of legitimate expectations, the
learned Counsel submitted that the doctrine of legitimate expectations cannot at all be
pressed into service by the petitioners. The scope and ambit of doctrine of legitimate
expectations has been clearly laid down by the Supreme Court in Union of India v.
Hindustan Development Corporation, J.T. 1993 (1) S.C. 94.
168. Yet another argument advanced by the petitioners that an undertaking is
taken from the owners of the properties at the time of sanctioning of plans and it
speaks of misuse charges and, therefore, once there is an undertaking taken by the
authorities they can only impose penalty for misuse charges and they are precluded
from taking any action from sealing or demolition. Learned Counsel submitted that a
reading of the undertaking itself would expose the case of the petitioners. In the
undertaking, it is clearly mentioned thatthe authorities free to take any action under
law. The undertaking is as follows:—
“I______________s/o______________r/o.______________
which expression shall mean and include all his/her heirs, executors, administrators
legal representative and assigns do hereby undertake as under:—
2. I am the owner of House No.________a portion of which is under the tenancy of
on a monthly rent of Rs.______________. That the said house is a purely a
residential house.
3. The House/a portion of house consisting of__________________is being used
by the____________for funning a____________which has been treated as a
mis-use of the said premises by the MCD as violation of Section 347 of DMC Act.
The MCD has consented to

Page: 376

recover the mis-use charges temporarily on year to year basis with the specific
condition that I shall continue to pay one month's rent annually by way of penalty till
such time the mis-use of the premises is removed. I fully understand this acceptance
of the penalty by the MCD, however, does not amount to the regularisation of the mis-
use of the premises. I shall see that the mis-use of the property is removed as early as
possible without any lapse on my part and I shall continue to pay the aforesaid
penalty till the mis-use is completely removed.

4. The recovery of mis-use charge is only for violation of Section 347 of the Act and
I am fully aware that it shall not confer any right with respect to any
unauthorised construction existing in the premises and MCD reserve its rights to
launch any other proceedings under any other section of the Act, Bye-laws, rules
and regulations enforced from time to time. It will further have not bearing
against any action by Govt./Semi-Govt. Autonomous bodies etc. under their
respective rules and regulations.
5. This undertaking is binding and irrevocable. I undertake to abide by terms and
conditions contained in these presents and further undertake that the MCD or
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any other appropriate authority shall have power to get the mis-use discontinued
in such manner as they deem fit and proper.
In witness where of I the above named have affixed by hands on these present
after understanding the contents thereof.”
169. Regarding the petition for impleadment of Mr. Rupinder Singh, we did not
entertain the petition and, therefore, it does not require any consideration.
170. The learned Counsel while meeting the submission on behalf of the
petitioners, with reference to the resolution dated 28th December, 1965, it was
submitted that it has absolutely no relevance and that resolution cannot be a charter
for a perpetual violation of the municipal laws.
171. The argument about the comparison of some multi-storeyed commercial flats
in some residential areas is not at all tenable. Because it would depend upon the
Master Plan and the Zonal Plans and also the nature of the development of the District
Centres and the authorities had permitted those constructions in accordance with the
Rules. If there is any building put up without the sanction and permission from the
authorities it would be demolished. The learned Counsel submitted that it is for the
municipal authorities keeping in view the public interest and for maintaining healthy
environment to devise means for the performance of the plans. He referred to Vol. 82
American Jurisprudence 2nd Edition page 5711. He also referred to Vol. 82 American
Jurisprudence page 431 and submitted that one of the established principles of law is
that the legislative judgment of the zoning authorities should not be annulled by a
Court on the sole ground that it is in disagreement with, the wisdom of the judgment.
So long there is a rational and justifiable basis for the law and it is within the
parameters delineated by the constitution. The Court will not substitute its judgment
for that of the experts in the field.

Page: 377

172. One thing which is very clear is that the petitioners in the writ petitions are
claiming rights through the owners who had approached the Civil Courts and failed to
get interim orders against the orders passed by the MCD for demolition. Another
important fact about which there is no dispute and there cannot be any dispute is that
the constructions made by the petitioners and the parties to the civil litigation were
without proper sanction or permission from the authorities and they are in violation of
the rules and regulations and bye-laws. Mr. P.N. Lekhi, learned Senior Counsel made a
categorical statement, as we had already noticed, while arguing the matter, that he is
not on the question of the constructions being unauthorised but he is focussing
attention of the Court on the jurisdiction of the MCD with reference to the area in
which the buildings are situated to take action for the alleged violations of the
municipal laws. Therefore, the factual matrix need not be considered any more to deal
with the points of law raised by the learned Counsel for the parties. In C.W. 4545/94,
the petitioner is Mr. Anil Kumar Khurana. The facts briefly are:—

27.9.1948 Delhi Improvement Trust granted 90

years lease to Smt. Vidya Wati in respect
of 11/5-B Pusa Road (Road No. 34).
27.8.1952 Smt. Vidya Wati transferred lease—hold
rights to S. Hardit Singh.
3.10.1953. S. Hardit Singh transferred the property
to National Investment Trust Ltd.
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12.12.1955. National Investment Trust Ltd.
transferred leasehold rights and super-
structure constructed to Mrs. Madhu
Sudan Ltd.
15.4.1969. Mrs. Madhu Sudan Ltd. sold lease—hold
rights to Mrs. Toshi Talwar.
4.5.1992 Mrs. Toshi Talwar by eight different
registered sale deeds sold rights, titles
and interest including the leasehold
rights in the property to the following
persons for a total consideration of Rs.
2.05 crores:—
1. Hemant Kumar S/o Sh. Krishan Kumar
2. Pawan Kumar S/o Sh. Gopal Chand
3. Kamal Kumar Taneja S/o Sh. R.C. Taneja
4. M/s. D.N. Taneja HUF
5. Smt. Salra Taneja w/o Sh. K.K. Taneja
6. Smt. Veena Taneja w/o Sh. D.N. Taneja
7. Ms. Anjali Rani d/o Sh. Devki Nandan
8. Ms. Anjali Rani d/o Sh. Devki Nandan
The petitioner filed CM.817/95 for the production of office order dated 11.1.1995 by
Govt. of India and office order dated 12.1.1995 by MCD.
173. CM.827/95 was filed for an amendment of the petition. Mr. Rupinder Singh
sought to implead himself as a party on the ground of public interest litigation in
CM.908/95, which was dismissed as withdrawn on 20th February 1995. Another

Page: 378

CM——/95 was filed on 21th February 1995 for the production of Mislbundh Register
by the Municipal Corporation of Delhi.

174. The learned Counsel for the MCD in his written arguments in Annexures A & B
has given the details about the suits filed by the parties before us. In Annexure C, the
report by the local Commissioner in suit No. 159/94 on the Original Side of this Court
filed by Pramjit Kaur and others. All this report shows that the constructions have
been made after ad-interim orders passed by this Court and in spite of public notice
issued by the MCD on 9.11.1994.
175. We have carefully considered the facts and circumstances and have analysed
the cases cited before us and we have also considered the relevant provisions under
the D.D.A. Act and D.M.C. Act. The point put forth at the forefront is the want of
jurisdiction on the part of MCD to take action. The principal contention is that the
lands concerned in these cases are nazul lands dealt with by the Delhi Improvement
Trust. The successor-in-interest of the Delhi Improvement Trust is Delhi Development
Authority and, therefore, the municipal functions would vest with the Delhi
Development Authority and if at all there is any violation the authority that could take
action or issue notice to the owners is the authority under the D.D.A. Act and the MCD
has no jurisdiction to take any action in respect of the violations alleged. As stated
above, the learned Counsel dealt with elaborately about the concept of Nazul land and
stated that even the D.D.A. after the commencement of D.D. Act had maintained the
distinction in the guidelines issued on land management under the Heading “Scope of
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Land Management by DDA”. The same reads as follows:—
“Scope of Land Management of DDA—
1.10 The lands dealt by DDA can be broadly categorised under the following heads:
—
Nazul-I Lands
(a) Old Nazul lands
The Govt. of India placed various Nazul Estates at the disposal of the erstwhile
Delhi Improvement Trust with effect from 1.4.1937 through the Nazul
Agreement of March, 1937. These Nazul lands, popularly known as Old Nazul
Estates, are now under the management of Delhi Development Authority as the
successor body of Delhi Improvement Trust. These lands are managed as per
provisions of the Nazul Agreement 1937 and Punjab Land Revenue Act, 1887.
The receipts and expenditure relating to these Nazul Estates are being booked
under a separate section of Account called ‘Nazul Account-I’.
(b) Land transferred front the Land & Development Office—
The Govt. of India, Ministry of Works and Housing transferred from the control of
the Land & Development Office to DDA certain nazul lands for management
under Section 22(1) of the Delhi Development Act subject to the condition that
the Authority shall not make or cause or permit to be made any construction on
the said land and shall when required by the Central Govt. so to do, replace the
said lands or any portion thereof, as may be so required, at the disposal of the
Central Govt. These lands are treated as Nazul lands and

Page: 379

the receipts and expenditure relating to the land is book under ‘Nazul Account-I’.

(c) Lands of urbanised villages earlier vested in gaon-sabha:

The Govt. of India, Ministry of Works & Housing transferred to the Authority
under Section 22(1) of the Delhi Development Act, 1957 certain lands vested in
Central Govt. on urbanisation of specified villages for the purpose of development
and maintenance as green subject to the condition that the DD A shall not make
or cause or permit to be made any construction on these lands and shall when
required by the Central Govt. so to do, replace the said lands or any portion
thereof, as may be so required, at the disposal of the Central Govt. These lands
are treated as nazul land and the receipts and expenditure relating to these
lands is booked under “Nazul Account-I”.
Nazul-II Lands
These lands are acquired by Delhi Administration (Land & Bldg. Deptt.) through the
Land Acquisition Collectors Delhi under the scheme of Large Scale Acquisition,
Development and Disposal of Land in Delhi framed by the Govt. of India, Ministry of
Home Affairs, New Delhi in 1961. For this purpose, a Revolving Fund has been
placed at the disposal of Delhi Admn. (Land & Bldg. Deptt.) out of which the cost of
acquisition is met. The lands so acquired, amongst others, are placed at the
disposal of the Delhi Development Authority under Section 22(1) of Delhi
Development Act, 1957 for development and disposal. These lands are managed as
per provisions of D.D. Act, 1957 and Delhi Development Authority (Disposal of
Developed Nazul land) Rules, 1981. The receipts and expenditure on account of
these lands are booked under a separate section and accounts called “Nazul
Account-II”.
Nazul Account-III Lands
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These lands are placed at the disposal of the DDA by the Central Govt. for
implementation of the Jhuggi Jhopari Removal Scheme being executed by the
Authority on behalf of the Central Govt. The receipts and expenditure on account of
these lands are booked under a separate section of accounts called “Nazul Account-
III”. These lands vest in the President and are given out only in his name on lease
hold basis.
General Development Lands
These lands are required by the DDA out of General Development Accounts Funds
as its own property. These lands also include the unutilised lands within the
urbanisation limits of Delhi previously under the management of Ministry of
Rehabilitation, Govt. of India purchased by the Authority on as-is-where-is” basis
on payment of Rs. 30 crores out of the General Development Account Fund. The
receipts and expenditure on account of these lands are booked under a separate
section of accounts called “General Development Account”.
1.11 The Authority considered and approved guidelines on principles/procedures
governing transfer of amenities and services from DDA to MCD in development
areas under Sec. 36 of the Act. As per these guidelines, transfer

Page: 380

of amenities and civic services to MCD shall not effect DDA's role in management,
control and disposal of Nazul lands.

Training of revenue staff and handling of litigation.

1.12 In view of the difficulties faced by the Authority in getting the trained revenue
staff, Authority decided to form its own cadre of revenue staff and approved
syllabus for training of various categories of revenue staff keeping in view
requirement of Authority, land laws applicable in Delhi and to increase general
knowledge of the staff to equip them to shoulder their responsibility efficiently.
1.13 There are large number of legal cases pending in various Courts pertaining to
Lands Deptt. Proper contesting of these cases form an integral part of the duties of
officers posted in the Lands Deptt. Detailed instructions for streamlining the
handling of litigation work in various Deptts. of DDA were issued by VC, DDA in
September, 1990.
The procedure for conducting Court cases in Lands Deptt. was further rationalised in
the meeting taken by Commissioner (L) on 19th September, 1990.”
176. Then learned Counsel referred to office order dated 23.1.1995 issued by Delhi
Development Authority, Office of Commissioner (LD) with reference to the execution of
agreements for renewal in respect of Nazul-I lands. This was given to us at the time of
arguments on 21st February, 1995. This deals with the guidelines relating to the
renewal of lease deeds with reference to Nazul-I lands and it does not speak of the
municipal functions. A resolution dated 20.10.1986 on transfer of amenities and civic
services from DDA to MCD under Section 36 of the D.D. Act, 1957. The resolution
reads as follows:—
“The Authority considered the item at length and resolved that the agreement
regarding the principles and procedures governing the transfer of services and
amenities from DDA to MCD in development areas and the time-frame as contained
in Appendix ‘C’ to item No. 10 of the agenda be approved. The Authority further
resolved that the DDA staff as is working in these colonies shall stand transferred to
the MCD and these colonies shall not include any of the slum and JJ Colonies or the
Urban Villages. It further resolved that the payment of the deficiency charges will
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be made only after the approval of the Authority.”

177. This has absolutely no bearing on the question at issue. For administrative
convenience matters are considered by the authorities then and there depending upon
the exigencies and that cannot confer any right on the petitioners. Section 2 (e) of the
D.D.A. Act, 1957 defines development area. The definition reads as follows:—
“2(e)—“development area” means any area declared to be a development area
under sub-section (1) of Section 12.”
178. A reading of the provisions of the Delhi Development Act, with particular
reference to Sections 12, 22 and 22 A, would make it clear that the contention on
behalf of the petitioners is not at all acceptable in law. The petitioners have completely
misunderstood

Page: 381

the scope of the jurisdiction and the functions of the Municipal Authorities with
reference to the buildings situated within the area of the MCD. It is clear from the
reading of the provisions of the Delhi Municipal Corporation Act, the only authority
relating to the construction of buildings within its area is the Municipal Corporation of
Delhi and the contention that MCD has no jurisdiction is not at all acceptable. The
various authorities relied on by the petitioners do not touch on the question at issue.
Therefore, there is absolutely no difficulty in accepting the submissions made on
behalf of the MCD in this behalf. Another argument that DDA did not file any
independent counter, even though it adopted the counter filed by the MCD cannot
avail the petitioners.

179. Mr. Shanti Bhushan, learned Senior Counsel submitted, inter-alia, that this
Court can direct the authorities to frame a scheme for the purpose of regularising the
unauthorised constructions by imposing such terms and conditions that may be
expedient in this behalf. He produced a Bill No. 28/91, presented before the Karnataka
Legislative Council which reads the Karnataka Regularising of Unauthorised
Construction in Urban Areas Bill, 1991. The document produced mentions Bill as
passed by the Legislative Assembly. When a question was put by my Lord, the Hon'ble
Mr. Justice Y.K. Sabharwal, whether it has become law, the learned Senior Counsel
replied stating that he was not aware of it. The document was produced on 21st
February, 1995 at the time of arguments. We do not see any relevancy at all for us to
consider in the light of the law and the facts and circumstances of this case. The law is
clear governing the construction of buildings in the area and, therefore, the situation
does not call for framing of any scheme by this Court.
180. We have no hesitation in rejecting the arguments on the question of the scope
of the resolution dated 28.12.1965 and the ground of estoppel and legitmate
expectations.
181. The judgment under appeals, rendered by the learned Single Judge, with
great respect, is correct and we find no reasons to interfere with it.
182. For all these reasons, all the writ petitions are dismissed and the appeals
against the order of the learned Single Judge and C.M.(M) are also dismissed. It is
made clear that all interim orders pending the writ petitions and appeals stand
vacated. This judgment disposes of the other connected writ petitions also.
183. My brother Justice Sabharwal was so kind to send me the draft of the
judgment prepared by him. I read it with pleasure for its brevity and beauty besides
being very instructive. Before I could bestow any thought on the judgment, I
marvelled at the way in which the learned Judge could capsulize the entire arguments.
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With great respect and admiration I allowed myself to be enticed by the splender of
the language. With due deference and respect I concur my Brother in all respects.
Writ Petitions dismissed.
———
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