TMI Blog2010 (6) TMI 751X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of this Court are involved, they are, namely: (a) As to whether the State Government - a Revisional Authority under the Statute, could take upon itself the task of a lower statutory authority?; (b) Whether the order passed or action taken by a statutory authority in contravention of the interim order of the Court is enforceable?; and (c) Whether Court can grant relief which had not been asked for? 3. Facts and circumstances giving rise to these appeals are that lands owned and possessed by predecessor-in-interest of private appellant Manohar Lal and respondent Ugrasen were acquired under the provisions of the Land Acquisition Act, 1894 (hereinafter referred to as the `Act'). Notification under Section 4 of the Act was issued on 13.08.1962 covering about 32 acres of land in the Revenue Estates of Kaila Pargana Loni Dist. Meerut (now Ghaziabad). Declaration under Section 6 of the Act in respect of the said land was made on 24.05.1965 along with Notification under Section 17(1) invoking the urgency clause. Possession of the land except one acre was taken on 13.07.1965 and award under Section 11 of the Act was made on 11.05.1970. The Government of Uttar Prade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land as the land covered by Plot Nos. 5 to 16 had been subject matter of the interim order of the High Court in a writ petition filed by Shri Manohar Lal. 6. Shri Ugrasen withdrew his Writ Petition No.1932 of 1980 on 6.3.1981 and deposited the compensation amount, i.e. ₹ 32,010.60 on 3.3.1981. GDA allotted the land to Shri Ugrasen in Plot Nos. 36, 38, 39, 44, 46 and 47 vide order dated 02.01.1985, though it was also the land in dispute i.e. covered by the interim order passed by the High Court. Shri Ugrasen refused to take those plots as is evident from letter dated 7.1.1985 as certain encroachment had been made upon the said lands. GDA, vide letter dated 27.3.1989, allotted Plot Nos. 5, 7 to 16 to Shri Manohar Lal. Thus, being aggrieved, Shri Ugrasen filed Writ Petition No. 6644 of 1989 before the High Court for quashing of the said allotment in favour of Shri Manohar Lal. 7. Parties exchanged the affidavits and after hearing the parties and considering the material on record, the High Court allowed the said Writ Petition vide judgment and order dated 22nd July, 2003. Hence, these appeals. 8. Shri P.S. Patwalia, learned Senior counsel appearing for the appellant-Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to issue any such direction. The said judgment has been approved and followed by this Court in U.P. State Electricity Board Vs. Ram Autar and Anr. (1996) 8 SCC 506. 12. In Bangalore Development Authority and Ors. Vs. R. Hanumaiah and Ors. (2005) 12 SCC 508, this Court held that the power of the Government under Section 65 of the Bangalore Development Authority Act, 1976 was not unrestricted and the directions which could be issued were those which were to carry out the objective of the Act and not those which are contrary to the Act and further held that the directions issued by the Chief Minister to release the lands were destructive of the purposes of the Act and the purposes for which the BDA was created. 13. In Bangalore Medical Trust Vs. B.S. Muddappa Ors. AIR 1991 SC 1902, this Court considered the provisions of a similar Act, namely, Bangalore Development Authority Act, 1976 containing a similar provision and held that Government was competent only to give such directions to the authority as were in its opinion necessary or expedient and for carrying out the purposes of the Act. The Government could not have issued any other direction for the reason that Government h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave exercised that power. While exercising that power he cannot abdicate his responsibility in favour of anyone - not even in favour of the State Government or the Chief Minister. It was not proper for the Chief Minister to have interfered with the functions of the Cane Commissioner. In this case what has happened is that the power of the Cane Commissioner has been exercised by the Chief Minister, an authority not recognised by Clause (6) read with Clause (11) but the responsibility for making those orders was asked to be taken by the Cane Commissioner. The executive officers entrusted with statutory discretions may in some cases be obliged to take into account considerations of public policy and in some context the policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but this will not absolve them from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for them to be given binding instructions by a superior. 17. In Chandrika Jha Vs. State of Bihar and Ors. AIR 1984 SC 322, this Court while dealing with the provisions of Bihar and Orissa Co-operative Societi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is confined only to matters of policy and not any other. Such matters of policy yet again must be in relation to discharge of duties by the officers of the authority and not in derogation thereof.... The direction of the Chief Minister being de'hors the provisions of the Act is void and of no effect. 20. In Indore Municipality Vs. Niyamatulla (Dead through L.Rs.) AIR 1971 SC 97, this Court considered a case of dismissal of an employee by an authority other than the authority competent to pass such an order i.e. the Municipal Commissioner, the order was held to be without jurisdiction and thus could be termed to have been passed under the relevant Act. This Court held that to such a case the Statute under which action was purported to be taken could afford no protection . 21. In Tarlochan Dev Sharma Vs. State of Punjab Ors. (2001) 6 SCC 260, this Court, after placing reliance upon a large number of its earlier judgments, observed as under: In the system of Indian democratic governance as contemplated by the Constitution, senior officers occupying key positions such as Secretaries are not supposed to mortgage their own discretion, volition and decision-making auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereof..... the wrong perpetrated by the respondents in utter disregard of the order of the High Court should not be permitted to hold good. 26. In Delhi Development Authority Vs. Skipper Construction Co. (P) Ltd. Anr. AIR 1996 SC 2005, this court after making reference to many of the earlier judgments held: On principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them. 27. In Gurunath Manohar Pavaskar Vs. Nagesh Siddappa Navalgund, AIR 2008 SC 901, this Court while dealing with the similar issues held that even a Court in exercise of its inherent jurisdiction under Section 151 of the Code of Civil Procedure, 1908, in the event of coming to the conclusion that a breach to an order of restraint had taken place, may bring back the parties to the same position as if the order of injunction has not been violated. 28. In view of the above, it is evident that any order passed by any authority in spite of the knowledge of the interim order of the court is of no consequence as it remains a nullity. 29. In Messrs. Trojan Co. Vs. RM.N.N. Nagappa Chettiar AIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relation thereto as it may think fit: Provided that the State Government shall not pass an order prejudicial to any person without affording such person a reasonable opportunity of being heard. (4) ...................................... 35. Clause (1) thereof empowers the State Government to issue general directions which are necessary to properly enforce the provisions of the Act. Clause (3) thereof make it crystal clear that the State Government is a revisional authority. Therefore, the scheme of the Act makes it clear that if a person is aggrieved by an order of the authority, he can prefer an appeal before the Appellate Authority i.e. Divisional Commissioner and the person aggrieved of that order may file Revision Application before the State Government. However, the State Government cannot pass an order without giving opportunity of hearing to the person, who may be adversely affected. 36. In the instant case, it is the revisional authority which has issued direction to GDA to make allotment in favour of both the parties. Orders had been passed without hearing the other party. The authority, i.e. GDA did not have the opportunity to examine the case of either of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry is in different ink. (d) True copy of application now submitted bears the date 13.12.1966. (e) There is no signature on the cyclostyled copy. (f) Application was made in 1971 and was rejected in 1977 by Shri Watal. Decision not challenged. Ugrasen kept quiet till 1980. (g) Clerk Mr. Jai Prakash was not working before 1979. 40. It is settled legal proposition that burden lies on the person, who alleges/avers/pleads for existence of a fact. Sh. Ugrasen was95 under an obligation to establish the fact of submission of the application in time. Entry in respect of his application has been made in Postal Receipt Register. As said application was sent by post, Sh. Ugrasen could explain as to whether the application was sent by Registered Post/Ordinary Post or under Postal Certificate and as to whether he could produce the receipt, if any, for the same. In such a fact-situation, the application filed by Shri Ugrasen could not have been entertained at all, even if he was entitled for the benefit of the Land Policy. 41. The High Court committed an error observing that if the State Government had allowed the application filed by Ugrasen it was implicit that delay, if a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e its power under the Act, and deprived the aggrieved party to file appeal against the order of allotment. Thus, orders passed by the State Government stood vitiated. More so, it was a clear cut case of colourable exercise of power. 44. So far as the case of allotment in favour of Manohar Lal is concerned in more than one respect, it is by no means better than the case of Ugrasen as the initial allotment had been made by GDA in his favour consequent to the directions of the Chief Minister of Uttar Pradesh who had no competence to deal with the subject under the Statute and he has already been put in possession of a part of allotted land in commercial area, contrary to the Land Policy. 45. There are claims and counter claims regarding the dates of Section 6 declaration; taking of possession of land; and of making Awards so far as the land of Manohar Lal is concerned. As per the affidavit filed by the Vice-Chairman, GDA, Section 6 declaration was made on 24.5.1965 invoking the urgency clause under section 17(1); possession was taken on 13.7.1965; and Award was made on 11.5.1970. Manohar Lal preferred writ petition no.4159/1980 before the Allahabad High Court stating that Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trimento et injuria fieri locupletiorem , means that it is a law of nature that one should not be enriched by the loss or injury to another. (vide The Ramjas Foundation Ors. Vs. Union of India Ors. AIR 1993 SC 852; K.P. Srinivas Vs. R.M. Premchand ors. (1994) 6 SCC 620 and Nooruddin Vs. (Dr.) K.L. Anand (1995) 1 SCC 242). 48. Similarly, in Ramniklal N. Bhutta Anr. Vs. State of Maharashtra Ors. AIR 1997 SC 1236, this Court observed as under:- The power under Article 226 is discretionary. It will be exercised only in furtherance of interest of justice and not merely on the making out of a legal point.....the interest of justice and the public interest coalesce. They are very often one and the same. ..... The Courts have to weigh the public interest vis vis the private interest while exercising....any of their discretionary powers (Emphasis added). 49. In M/s Tilokchand Motichand Ors. Vs. H.B. Munshi Anr. AIR 1970 SC 898; State of Haryana Vs. Karnal Distillery, AIR 1977 SC 781; and Sabia Khan Ors. Vs. State of U.P. Ors. AIR 1999 SC 2284, this Court held that filing totally misconceived petition amounts to abuse of the process of the Court. Such a lit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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