K. Ramamoorthy, J. ( 1 ) THIS is a Text Book example of law breakers attempting to establish wrongsthrough process of law seeking the imprimatur this Court. This is the meat of thematter. ( 2 ) THE concerned authorities had prepared plans regulating the construction ofbuildings by virtue of powers conferred on them by various statutes. The wholescheme of the Act, Rules, Regulations and Bye-laws is based on the thinking thatsense of the ordinary peace living in the city and its surroundings by modern men willbe shocked if structures are allowed to come up unregulated. One cannot ignore thatthe object of the law is to instil orderliness in matters of public welfare and compelpublic to conform to certain rules, the non compliance whereof will result itself indislocation of normal living which the rules are intended to assure to the people. Thelocal bodies are empowered to develop lands, to provide basic amenities, to disposeof developed lands, to put up complexes, residential and commercial, according to theneeds and aspirations of the people. The development of Delhi was not a little owingto the untiring efforts of DDA, MCD, National Capital Territory of Delhi and theunion of India. Indeed, a great deal has been done and yet much more remains to bedone. The increase in population is in geometric progression in the country, influx ofpeople from all over the country into Delhi for eking out their livelihood poses stupendous problems to the authorities and it is a matter of pride for the citizens of thiscountry that the authorities are ready and willing to face any challenge and act to meetthe demands of the people. Every effort is made to stimulate civic interest in peopleand organised efforts are being made to make National Capital Territory of Delhi apleasant, green, orderly and beautiful place to dwell in. ( 3 ) IT appears that a comprehensive scheme is on the anvil to develop satellite citiesto reduce congestion in the cities by setting up industries, providing employment forpeople 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 forthe discharge of sewerage which is essential for sanitary condition without whichpeople cannot maintain good health. It is relevant fo notice the preamble to Masterplan For Delhi 1990. 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 forthe discharge of sewerage which is essential for sanitary condition without whichpeople cannot maintain good health. It is relevant fo notice the preamble to Masterplan For Delhi 1990. "delhi, the locus of the socio-economic and political life of India, a symbolof ancient values and present aspirations, the capital of the largestdemocracy, is assuming increasing emmence amongst the great cities of theworld. 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 thethrobbing lanes of Shahjahanabad. It is a gem with many facets. PRESENTLY, growing at unprecedented pace, the city must be equipped toface the contemporary challenges. It should be able to integrate its elegantpast 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 should be able to improve their economic capabilities andshare 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 withthe planing and development problems of the developing countries could bestarted in the city. Such an Institute along with the research and training inthe development problems could have specialised departments of newlyemerging fields, e. g. Energy, Ecology, Environment, Genetics, Computerscience and others. IT needs to be emphasised that the modernisation of the city is not to be inparts but as a whole, not as limited actions in certain fields but as an attitudeto decision making. In the development of all the areas for urban activitiesi. e. housing, commercial and industrial areas and areas for public facilities,the emphasis should be on long range efficiency, futuristic view point andhealthy environment for sustaining a high quality of life. DELHI has a distinct personality. In the process of modernisation the cityalong with providing an environment of livability, performing functions ofstate and economic efficacy, must reflect its personality through its formand through its activity in its parts and as a whole. " ( 4 ) LAWS are meant to be obeyed. DELHI has a distinct personality. In the process of modernisation the cityalong with providing an environment of livability, performing functions ofstate and economic efficacy, must reflect its personality through its formand through its activity in its parts and as a whole. " ( 4 ) LAWS are meant to be obeyed. They are made keeping in mind the welfare ofthe entire community. ( 5 ) 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 howdid the authorities concern permit such flagrant violations of law to take place wouldreally beggar all description. We can draw a lesson from the action of the Housingsecretary in the U. S. A. The U. S. Housing Secretary Mr. Hindry Cisnerys, wasresponding really to a healthy impulse by running down two young men while theywere trying to steal watches from a street vendor in Washington. The question whichmr. Cisnerys asked after he had nabbed the two young men "what kind of citizens orgovernment leader would I be if I did not try to help? ( 6 ) 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. ( 7 ) I feel that the provisions in statutes, Rules, Regulations and Bye-laws do notmeet the demands of today s situation. The process has to be strengthened. The lawmust be provided with more biting teeth and there must be genuine apprehension inthe mind of every person engaged in the real estate business that any infraction orviolation of laws would bevisited with exemplary punishment, for, they spoil thesociety and try to enthuse in the law abiding citizens that any violation would not betaken cognizance of by the authorities and that they have the means to get round thelaw. The law should also provide severe punishment for erring officers and responsibility must be Fixed on them. 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 arethe persons to implement the law but must also be conscious of the position that in awelfare state it is the obligation of the state to ensure the creation and sustaining conditions congenial to good health of the people which is a sine-qua-non for the progressof the country as a whole not only in the Field of science and technology but also in allspheres of human endeavours to meet the challenge, particularly at this juncture,arising out of globolisation of everything under the sun. ( 8 ) IT is argued on behalf of the petitioners that the authorities who could haveprevented, by qua-timet action, as it were, by using their power, the builders fromcommencing construction and according to the petitioners the officials concernedconnived and had been privy to the illegal act. According to the petitioners the cannybuilders would not have the temerity to venture into illegal acts without the help of theofficials. It is regrelable 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 beto take such action as they deem Fit against officers who had committed the wrongs. Unless stern measures are taken against the officials who are guilty of such seriousmisdemenours, government cannot maintain the purity of administration. The indolence on the part of the concerned authorities has spawned the unauthorised constructions. However, that can not cloth the petitioners with any right to approach thiscourt seeking protection for their illegal acts. It can not be gain said that theprovisions are made to regulate the building construction for the safety, health andwell 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 civilisation where might was right when there were no laws governing the affairs of men. 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 civilisation where might was right when there were no laws governing the affairs of men. Wehave to remember the famous words of an English Judge "amongst many other pointsof 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 rulesof law which give both to the head and members that which of right belongeth to themand not by any arbitrary or uncertain form of government. " ( 9 ) THEREFORE, law is a must for an orderly society. ( 10 ) THE petitioners would contend that they have built complexes, buildings for thesake of the people as there is acute accommodation for both residentials and nonresidentials and the respondents cannot have any objection and instead of seeking todemolish the building they should regularise them. The sleight hands and vile mindswould try to act in defiance of law on the premise that the law is not enforceableagainst them. The persons who can command some money and power tend to commitsuch offences with calculations and evil designs with the only motive of personal profitwithout any concern for the wellbeing of the community at large and future of thecountry. The petitioners assert that they have not committed any wrong because theircontention is that Delhi Development Authority is the successor-in-interest of Delhi Improvement Trust therules and Regulations will be entirely different. I am reminded of the words of Haryjones in Efficiency of Law in this behalf "there are many mansions in the House ofjurisprudence and I would not be little in one s prepective of law in society providedonly that he docs not insist that his is the only perspective that gives a true and meaningful view of ultimate legal reality. " The petitioners would contend that their action isthe only thing that is acceptable in the present situation and their action cannot at allbe characterised as anything contrary to law. " The petitioners would contend that their action isthe only thing that is acceptable in the present situation and their action cannot at allbe characterised as anything contrary to law. ( 11 ) THE Supreme Court on more than one occasion has noticed that there hasbeen steady decline in standard in public life and it is hoped that those who are inpower have in the fore front of their minds the welfare and wellbeing of the countrythat people with sense of patriotism and sacrifice would emerge in public life. ( 12 ) 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. ( 13 ) IT is submitted on behalf of the respondents that the petitioners have no legalright to make a grievance. There must be judicially enforceable right as a legallyprotected right. ( 14 ) THE Supreme Court has very forcefully observed about the powers of the courtin A. I. R. 1981 S. C. 625 "the writ must right the wrong forthwith or must stand selfcondemned as make believe. " ( 15 ) AND, therefore, the writ cannot protect the wrong. It is the duty of the Courtsto preserve public good and interdict misuse of powers and position. The Supremecourt has given the guidance by staling that scanning must be done through the objective lens of the Court representing the collective conscience of the community and notthrough the tingedlens of wrong doers whose economic interest may be prejudiciallyeffected 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. ( 16 ) I would like to recall the observations of the House of Lord in 1961 Vol. I Allengland Reports 446 "i entertain no doubt that there remains in the Courts of law aresidual 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 istheir duty to guard it against attacks which may be more insidous because they arenovel and unprepared for". ( 17 ) BEARING in mind these canons and principles, I proceed to consider the respective contentions of the parties. ( 17 ) BEARING in mind these canons and principles, I proceed to consider the respective contentions of the parties. ( 18 ) 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 aclear vision of facts and law. I am bound to place on record my sincere appreciationof their industry and forensic ability to focus our attention to the core of the matter. ( 19 ) THE Supreme Court has lime and again laid down the parameters of the jurisdiction of the High Court sitting under Article 226 of the Constitution of India to givereliefs to the litigant public. The High Courts, therefore, have to act within thatsphere of jurisdiction as laid down by the Supreme Court of India. ( 20 ) MR. P. N. Lekhi, learned senior counsel formulated his points. His submissionwas Five fold; (1) The MCD has no jurisdiction to take any proceedings with referenceto 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 ofthe provisions of Section 60 of the Delhi Development Act, 1957 read with provisionsof U. P. Town Improvement Act, 1919 the authority in relation to sanction plans, issueorders regarding demolition would rest only with DDA; (3) Section 12 of the Delhidevelopment 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 theowner 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 ofauthority is ultra vires; (C) Discretionary power is not a discriminatory power and themunicipality or Corporation cannot choose the buildings fordemolition when there is more than two lakhs buildings unauthorisedlyconstructed. (5) In view of the resolution dated 24. 12. 65 the threat of demolition is bad in lawand the resolution makes the area a commercial area. ( 21 ) LEARNED counsel REFERRED TO to the agreement dated 31. 3. 1937 between thesecretary of State and between Delhi Improvement Trust. He explained the conceptof Nazul Lands referring to (a) Aiyer s Judicial Dictionary XIth Edition, D. D. Act byr. 12. 65 the threat of demolition is bad in lawand the resolution makes the area a commercial area. ( 21 ) LEARNED counsel REFERRED TO to the agreement dated 31. 3. 1937 between thesecretary of State and between Delhi Improvement Trust. He explained the conceptof Nazul Lands referring to (a) Aiyer s Judicial Dictionary XIth Edition, D. D. Act byr. K. Yadav 1987th Edition page 113, Section 84 (2) of Delhi Land Revenue Act, 1954,rule 233 Delhi Land Revenue Rules, 1962, Rule 237 where the Delhi Development Authority is to maintaintwo Registers, Register B and Register A; (b) Section 22 of the Delhi Developmentact 1957 and guidelines issued by Land Management published by D. D. A. on27. 1. 1992. ( 22 ) THE learned counsel relied upon Chauthmal vs. The State of Rajasthan andothers, A. I. R. 1967 Rajasthan 179. In that case nazul land is defined under section3 (i) (b) of the Rajasthan Land Revenue Act, 1956. It is defined as "means abadi landwithin 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 Stategovernment 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. 00 ap-proval 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 thewrit petition for Rs. 801. 00. The 4th respondent in the writ petition Smt. Kanwari Baifiled a petition before the Collector to set aside the sale and for a direction to themunicipality to sell the land to her by virtue of the fact that she is an adjoining ownerof 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 incase it is sold by it. The Collector set aside the sale in favour of the petitioner andrecommended the sale of the land to the 4th respondent under the provision of Section 97 of the Act. Section 97 of the Rajasthan Municipality Act mentions such a right to the adjoining owner of a plot in the control of the Municipality incase it is sold by it. The Collector set aside the sale in favour of the petitioner andrecommended the sale of the land to the 4th respondent under the provision of Section 97 of the Act. ( 23 ) THE State Government accepted the recommendation of the Collector and setaside the sale in favour of the petitioner and directed the sale in favour of the 4threspondent and directed Municipal Board Merta to sell the plot to Smt. Kanwari Baiin accordance with the Government notification. This was challenged by the writpetitioner 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 according to the petitioner the Municipal Board was within its powers to execute a saledeed 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 thegovernment and it was no longer a property of the Government and, therefore, no approval need be obtained by the Municipality from the Collector. ( 24 ) THE argument on behalf of both the respondents was that a special provisionwas made for nazul lands and the ownership was still retained by the Government andin view of the special provision in Section 80 (1) of the Act approval of the Collector isnecessary. 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 Boardbut did not belong to it. Nazul lands placed at the disposal of the Board undernotification of 8. 10. 1959 belong to the second class. They vest in the Board butbelonged to Government. In view of the decision of Their Lordships of the Supremecourt REFERRED TO to above there is no reason to hold that these lands do not vest in themunicipal Boards. I accordingly hold that the nazul lands placed at the disposal ofthe Boards under notification dated 8. 10. 1959 vest in the Municipal Board but do notbelong to it". ( 25 ) THE learned Sr. I accordingly hold that the nazul lands placed at the disposal ofthe Boards under notification dated 8. 10. 1959 vest in the Municipal Board but do notbelong to it". ( 25 ) THE learned Sr. counsel relied upon the decision of the Supreme Court in Thefruits and 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 isa word of variable import is shown by the provisions of Indian Statute also. It wouldthus appear that the word vest has not got a fixed connotation meaning any of casesthat the property is owned by the persons or authority in whom it vests. It may vesttitle or it may vest in possession or it may vest in a limited sense, as indicated in thecontext 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 orin 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 ofthe bye laws in respect of the construction made by the petitioners or the owners orbuilders. The learned counsel REFERRED TO to the decision in Vishal Builder. (P) Ltd v-Delhi Development Authority, ILR (1977)1 Delhi 724. The Delhi Development Authority adverliscd for perpetual lease with reference to plots of land in District Centre Kalkaji, which is nowcalled 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 Delhi Development Authority 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 TOto the nature of the land vide pages 740 to 742. The land was nazul land. The learnedjudge expressed the view that the ultimate authority with reference to land is Centralgovernment and when no rules have been framed by the Government and, therefore,dda cannot do anything. Ultimately, the learned Judge directed the Delhi Development Authority to returnthe entire amount to the petitioner. The land was nazul land. The learnedjudge expressed the view that the ultimate authority with reference to land is Centralgovernment and when no rules have been framed by the Government and, therefore,dda cannot do anything. Ultimately, the learned Judge directed the Delhi Development Authority to returnthe entire amount to the petitioner. This case is relied upon by the learned counsel toshow 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 thepetitioner or his predecessor is valid or not. The learned counsel further submitted that if Delhi Development Authority 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 contendedthat 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 [stategovernment) sanctions an improvement scheme it shall announce the factby notification, and, except in the case of a deferred street scheme, development scheme, or town expansion scheme, the Trust shall forthwith proceedto execute the same. (2) The publication of a notification under sub-section (1) in respect ofany scheme shall be conclusive evidence that the scheme has been dutyframed and sanctioned. " HE REFERRED TO to clause 4 of the agreement dated 31. 3. 1937 between thesecretary of Delhi State and Delhi Improvement Trust. Clause 4 of theagreement 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 sanctionedunder section 42 of the Act. " THE learned counsel contended that relying on the words in pursuance of that thelease in favour of the predecessor in interest was in pursuance of the scheme framedand, therefore, we are governed only by what has happened under the scheme of theact and we have to consider who are the successors-in-interest. For this purpose, thelearned counsel brought to our notice the case reported in "the Trustees of Port ofbombay vs. The Premier Automobile. f Ltd. and another, (1974) 4 Supreme Court Cases710. 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 Trustwith reference to the goods imported by it. f Ltd. and another, (1974) 4 Supreme Court Cases710. 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 Trustwith reference to the goods imported by it. The Port Trust took a plea that the claimwas barred by time under Section 87 of the port Trust Act, which is reproduced asunder :- "s. 87. No suit or other proceeding shall be commenced against any person for any thing done, or purporting to have been done, in pursuance ofthis 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, norafter six months from the accrual of the cause of such suit or other proceeding. " IT was contended on behalf of the respondent- plaintiff that whenever there is anact of negligence on the part of the Port that cannot be said to be in pursuance of theact and, therefore, it would be open to the Port Trust to take the plea of limitation. Inother words, the contention was that the question of limitation under section 87 wouldarise only if something done validly by the authorities under the provisions of the Actand not when there is a gross omission on their part to do something which they areobliged to do under the provisions of the Act. ( 26 ) THE Supreme Court dealt with this aspect at page 718 in paragraph 10 in thefollowing words:- "a cognate point arises as to whether you can attribute the neglect to comply with a law as something done in pursuance of that law. Here again thefallacy is obvious. If under colour of office, clothed with the robes ofauthority, a person indulges in conduct not falling under the law he is notacting 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 apparelthat 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. It is the apparelthat 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 theofficial 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 actunder it. On the other hand, a police officer who collects water cess or amunicipal officer who takes another into custody, is not by any stretch oflanguage acting in pursuance of or under the relevant Act that gives himpower. And certainly not an act of taking bribe or committing rape. Such isthe sense of the words we are called upon to construe. The true meaning ofsuch and similar words used in like statues has been set out by Halsburycorrectly and concisely (3rd edn" Vol. 24, pages 189-190): AN act may be done in pursuance of or in the execution of the powersgranted by a statute, although that act is prohibited by the statute. A personacting under statutory powers may erroneously exceed the powers given, orinadequately discharge the duties imposed, by a statute yet if he acts bonafide in order to execute such powers or to discharge such duties, he is con-sidered as acting in pursuance of the statute. Where a statute imposes aduty, 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 meaningof 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 norelevance in this context. So the intendment of the statute certainly takes inits broad embrace all official action, positive and negatives, which is theoperative cause of the grievance. ALTHOUGH the Act, in the present case, uses only the expression act andomits neglect or default or omission , the meaning does not suffer and ifother statutes have used all these words it is more the craftsman s anxiety toavoid taking risks in court, not an addition to. the semantic scope of theword act . ALTHOUGH the Act, in the present case, uses only the expression act andomits neglect or default or omission , the meaning does not suffer and ifother statutes have used all these words it is more the craftsman s anxiety toavoid taking risks in court, not an addition to. the semantic scope of theword act . Of course, this is the compulsion of the statutory context and itmay well be that other enactments, dealing with different subject-matter,may exclude from an act in the various General Clauses Acts, as including illegal omissions . The leading case of Jolliffee v. The Wallasey Localboard (supra) decided nearly a century ago has stood the test of time andstill current coin, and Stroud) Stround 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 completeperformance of a duty imposed under a public body under an Act of Parliament, or the continuing to leave any such duty unperformed, amounts to anact done or intended to be done within the meaning of a clause requiring anotice of action (Joliffee v. Wallasey, L. R. 9 C. P. 62 ). " THE argument is that by virtue of clause 4 in the agreement whatever done infavour of the lessees by the Delhi Improvement Trust in pursuance of the schemewould 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. Itis contended that Delhi Improvement Trust was acting within the powers conferredunder the Act and in pursuance of the Act. The inference further made is that Delhiimprovement 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 thestatutes 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 Delhi Development Authority is the reincarnation of Delhi Improvement Trust and it is an independent body like themcd. The force and ambit of statutory provisions cannot be hampered or hedged inby any features not recognised by and REFERRED TO to in the statute. It is a reasoneddoctrine recognised right from, Her Majesty The Queen vs. Burrah, Law Report Appeal Cases, (1878) Vol. The force and ambit of statutory provisions cannot be hampered or hedged inby any features not recognised by and REFERRED TO to in the statute. It is a reasoneddoctrine recognised right from, Her Majesty The Queen vs. Burrah, Law Report Appeal Cases, (1878) Vol. III (P. C.) 889, which is recognised, applied and approved bythe Supreme Court and High Courts in India. Reference was made to Section 49 ofthe 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.- (l) Theprovisions of Section 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), 268to 270 and 278 of the Municipalities Act shall, so far as may be consistentwith 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 schemeremains 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 tothe 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 thechairman or by an officer of the board: PROVIDED that the Trust may delegate to the Chairman or to any officer ofthe Trust all or any of the powers conferred by this section. (2) The Trust may make bye-laws for any area comprised in an improvementscheme which is outside the limits of the municipality- (A) generally for carrying out the purpose of this Act, arid (B) in particular and without prejudice to the generality of the aforesaidpowers the Trust may make bye-laws regarding any, of the mattersreferred TO to in Section 298 of the Municipalities Act. (3) The provisions of Sections 299 and 301 of the Municipalities Act shall, so far asmay be consistent with the tenor of this Act, be applicable to all bye-laws madeby a Trust under this sub-section, and all references in the said section to theboand shall be construed as referring to the Trust. (3) The provisions of Sections 299 and 301 of the Municipalities Act shall, so far asmay be consistent with the tenor of this Act, be applicable to all bye-laws madeby a Trust under this sub-section, and all references in the said section to theboand shall be construed as referring to the Trust. " THE argument is that by virtue of provisions of Section 49 the Trust shall exerciseall 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 publicadvantage to control and provide for the future expansion of amunicipality in any area to which this Act is extended, the Trust mayframe a scheme (to be called a "town expansion scheme" ). (2) Such scheme shall show the method in which it is proposed to lay outthe area to be developed and the purposes for which particular areasare 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 thetrust shall be required to supply such details as the [stategovernment] may consider necessary. (4) When any such scheme has been notified under Section 42, if anyperson desires to erect, add to or alter any building or wall within thearea comprised in the said scheme, he shall apply to the Trust forpermission to do so. (5) If the Trust refuses to grant permission to any person to erect, reerect,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 fromthe date of such refusal, it shall pay reasonable compensation to suchperson for any damage sustained by him in consequence of suchrefusal. REFERRING in particular to sub section 4 of Section 32 the learned counsel submittedthat 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. REFERRING in particular to sub section 4 of Section 32 the learned counsel submittedthat 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 Delhi Development Authority being theafter ego of Delhi Improvement Trust and the only authority competent to grant permission to build and sanction plan with reference to nazul lands is Delhi Development Authority and MCD hasno jurisdiction over the matter. In this connection, the learned counsel REFERRED TO to thepleadings in paragraphs 9 and 10 of the writ petition No. 4545/94 and submitted thatthe 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 pointedout by the learned sr. counsel that the Delhi Development Authority has not filed any counter though DDAmade it clear it was adopting the counter of the MCD. We have to consider what isthe 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 Delhidevelopment Act in the year 1957. According to the learned counsel developmentarea is different from nazul lands. It is significant, according to learned counsel, whileprovisions are made to nazul lands in D. D. Act nothing is mentioned in D. M. C. Actand 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, hewants us to accept that on the date of coming into force of the two Acts the nazullands were, and could be dealt with only by Delhi Improvement Trust and other landswere dealt with under the Act applicable to the respective areas. Learned counsel further submitted that the provisions in the D. D. Act, 1957 themselves would maintainthe difference and on a correct reading and interpretation of the relevant provisions itwill be clear that what he contends for is correct in law. The learned counsel for thepetitioners brought to our notice Section 60 of the D. D. Act, 1957. Section 60 reads asunder:- "s. 60. Repeal, etc. and savings. The learned counsel for thepetitioners brought to our notice Section 60 of the D. D. Act, 1957. Section 60 reads asunder:- "s. 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 of1919), shall cease to have effect in the Union territory of Delhi; and (B) the Delhi (Control of Building Operations) Act, 1955, shall standrepealed. Section 60 reads asunder:- "s. 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 of1919), shall cease to have effect in the Union territory of Delhi; and (B) the Delhi (Control of Building Operations) Act, 1955, shall standrepealed. (2) Notwithstanding the provisions of subsection (1)- (A) every officer and other employee serving under the Delhiimprovement Trust or the Delhi Development (Provisional) Authorityimmediately before the date of the constitution of the Authority shall,on and from such date, be transferred to and become an officer orother employee of the Authority with such designations as theauthority may determine and shall hold office by the same tenure, asthe same remuneration and on the same terms and conditions ofservice as he would have held the same if the Authority had not beenconstituted, and shall continue to do so unless and until such tenure,remuneration and terms and conditions are duly altered by theauthority: PROVIDED that any service rendered by any such officer or other employeebefore 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 otheremployee in the discharge of such functions under this Act as it may thinkproper 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 aforesaidacts, shall, so far as it is not inconsistent with the provisions of thisact, continue in force-and be deemed to have been done or takenunder the provisions of this Act unless and until it is superseded byanything done or any action taken under the said provisions; (C) all debts, obligations and liabilities incurred, all contracts entered intoand all matters and things engaged to be done by, with or for the Delhiimprovement Trust or the Delhi Development (Provisional) Authorityshall be deemed to have been incurred, entered into or engaged to bedone by, with or for the Authority; (D) all properties movable and immovable vested in Delhi Improvementtrust or the Delhi Development (Provisional) Authority shall vest inthe Authority; (E) all rents, fees and other sums of money due to the Delhi Improvementtrust or the Delhi Development (Provisional) Authority shall bedeemed to be due to the Authority; (F) all suits, prosecutions and other legal proceedings instituted or whichmight have been instituted by, for or against the Delhi Improvementtrust or the Delhi Development (Provisional) Authority may becontinued or instituted by, for or against the Authority. " RELATING to the scope of the law of Repeal he brought to our notice the passage atpage 116 in Maxwell Interpretation of Statutes, 12th Edn. which is as under:- "few principles of statutory interpretation are applied as frequently as thepresumption against alterations in the common law. It is presumed that thelegislature does not intend to make any change in the existing law beyondthat 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 oflaw without expressing its intention with irresistible clearness, and to giveany such effect to general words merely because this would be their widest,usual, natural or literal meaning would be to place on them a constructionother than that which Parliament must be supposed to have intended. If thearguments on a question of interetation are "fairly evenly balanced, that interpretation should be chosen which involves the least alteration of the existing law. " THE scheme of the Act is that on the date of the constitution of the. authority thescheme 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 ofd. D. Act, 1957. And as the lease entered into between Delhi Improvement Trust andthe lessees from whom the petitioners claim a right in relation to the nazui lands wouldbe intact and they remained undisturbed and they have to be governed by as per thescheme as it existed as on the date of the Act. Therefore, according to learned sr. counsel, the D. D. "act draws a line of demarcation which is bright and discerniblemaintaining the dichotomy between nazul lands and other lands. In support of hiscontention that the position of law as contended for by him is supported by Craies inhis book 7th Edn. page 355, which reads as under:- "the general rule as to the way in which repealing sections are to beregarded by the courts was well expressed in Hough v. Windus. In that casea question arose as to the effect of Bankruptcy Act, 1883, upon the Statuteof Westminster the Second (13 Edw. 1, c. 18) and writs of elegit. Bowenl. page 355, which reads as under:- "the general rule as to the way in which repealing sections are to beregarded by the courts was well expressed in Hough v. Windus. In that casea question arose as to the effect of Bankruptcy Act, 1883, upon the Statuteof Westminster the Second (13 Edw. 1, c. 18) and writs of elegit. Bowenl. 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 astudy of the framework of the Bankruptcy Act 1883 so far as it works arepeal of previous legislation. " THE argument is that the framework of the D. D. Act has to be carefully consideredto appreciate his submissions. He also REFERRED TO to a passage in Francis Bennion 19922nd 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 jurisor body of law. To repeal an enactment is to cause it to cease to be inlaw 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 Actcontaining it. Accordingly the rules applicable to amendments set outin 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 ofparliament in which the Act was passed. " ACCORDING to the learned counsel we have to see what is scope of repeal and whatit is that the Act intended to say that the provisions of the other Act REFERRED TO to wouldcease to have a effect. The counsel persisted, and said that the width of the repeal hasto be borne in mind. To further gain strength for his submission, he relied on two passages in Halsbur s Laws of England, 4th Edn. Vol. 44 page 539 para 883 and page 543para 888, which are as under :- "883. Saving clauses SAVING clauses are used in a statute to preserve earlier statutes which wouldotherwise be repealed by il, or rights which would otherwise be abrogatedby it. A saving clause cannot be taken to give any right which did not existalready. Vol. 44 page 539 para 883 and page 543para 888, which are as under :- "883. Saving clauses SAVING clauses are used in a statute to preserve earlier statutes which wouldotherwise be repealed by il, or rights which would otherwise be abrogatedby it. A saving clause cannot be taken to give any right which did not existalready. It can only preserve things which were actually existing at the timeof its enactment, and therefore cannot affect transactions complete at thedate of the repealing statute. WHERE an enactment is subject to an express saving for certain rights, it maybe 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 ofthe earlier of two statutes in pari materia cannot generally be ascertainedby looking at what is enacted in the later one, even where the two. statuesare 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 theearlier one or purports to declare its meaning. Further, where the interpretation of a statute is obscure or ambiguous or readily capable of morethan one interpretation, light may be thrown on the true view to be taken ofit by the aim and provisions of a subsequent statute. Where a far-reachingchange in the law is enacted in a particular field, it is possible, inappropriateinstances, that the court will construe earlier legislation as a part of a newwhole and give it a broader interpretation than would formerly have beenproper. " 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 Delhi Development Authority andnot MCD but referring to saving clause what the learned counsel intended to submit isthat the repeal Act would be applicable to the lands in question. The thrust of the argument is that nazul lands would be under the control of Delhi Development Authority andnot MCD but referring to saving clause what the learned counsel intended to submit isthat the repeal Act would be applicable to the lands in question. Prima facie, the contention appears to me very contradictory. The argument should run complementaryto the earlier argument that in the place of Delhi Improvement Trust Delhi Development Authority would come in but the argument should not in derogation of it sayingthat repeal Act is saved would apply to the lands in question. There is some mixing upof concept relating to repeal and saving. Learned counsel suggested in amplifying his submission that Section 12 of tire 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 thoseand other areas. (1) As soon as may be after the commencement of this Act, the Centralgovernment may, by notification in the Official Gazette, declare any area indelhi 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 TO by the Central Government to the Authorityand the Municipal Corporation of Delhi for expressing their views thereonwithin thirty days from the date of the receipt of the reference or withinsuch further period as the Central Government may allow and the period sospecified or allowed has expired. (2) Save as otherwise provided in this Act, the Authority shall not undertake orcarry out any development of land in any area which is not a development area. (2) Save as otherwise provided in this Act, the Authority shall not undertake orcarry 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 beundertaken or carried out in any area by any person or body (including adepartment 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 fromthe local authority concerned or any officer or authority thereofempowered or authorised in this behalf, in accordance with theprovisions made by or under the law governing such authority or untilsuch provisions have been made, in accordance with the provisions ofthe regulations relating to the grant of permission for developmentmade under the Delhi (Control of Building Operations) Act, 1955 (53of 1955) and in force immediately before the commencement of thisact: PROVIDED that the local authority concerned may [subject to the provisionsof 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 developmentshall be undertaken or carried out in that area unless such development is alsoin accordance with such plans. (5) Notwithstanding anything contained in sub-sections (3) and (4) development ofany land begun by any department of Government or any local authority beforethe commencement of this Act may be completed by that department or localauthority without compliance with the requirements of those sub-sections. " 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, thedelhi Improvement Trust shall not undertake or carry out any developmentof land in any area which is not a development area. " THIS is to demonstrate that the Act saves the lands under the jurisdiction of Delhiimprovement Trust from MCD. In this connection, the learned counsel brought toour notice the case reported in SCHULTE v. GANGI, 1945 90 Law Edn. 1114 andreferred TO to dissenting view by Frankfurter J. in the following words:-"for purposes of judicial enforcement, the "policy" of a statute should bedrawn out of its terms, as nourished by their proper environment, and not,like nitrogen, out of the air. 1114 andreferred TO to dissenting view by Frankfurter J. in the following words:-"for purposes of judicial enforcement, the "policy" of a statute should bedrawn out of its terms, as nourished by their proper environment, and not,like nitrogen, out of the air. " ARMED with this passage, the argument is that the the position of law on the date ofthe D. D. Act should be kept in mind. Next the learned senior counsel REFERRED TO 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 Regulationmade after the commencement of this Act, repeals any enactment hithertomade 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 repealtakes effect; or (B) affect the previous operation of any enactment so repealed or anythingduly done or suffered thereunder; or (C) affect any right, privilege, obligation or liability acquired, accrued orincurred under any enactment so repealed; or (D) affect any penalty, forfeiture or punishment incurred inrespect of anyoffence committed against any enactment so repealed; or (E) affect any investigation, legal proceeding or remedy in respect of anysuch right, privilege, obligation, liability, penalty, forfeiture orpunishment as aforesaid; AND any such investigation, legal proceeding or remedy may be instituted,continued or enforced, and any such penalty, forfeiture or punishment maybe imposed as if the repealing Act or Regulation had not been passed. " THE argument is that the rights accrued to the lessees could not be taken away andthe lessees cannot be brought under the control of MCD which is not the intendmentof the Act, especially when two acts are brought into the Statute Book more or lesssimultaneously. He relied on the decision reported in P. N. Balasubramanian vs. Union of India and another, ILR (1976) 1 Delhi 506. In this case, with reference to anact done by the writ petitioner when the Foreign Exchange Regulation Act, 1947 wasin force, proceedings were initiated after the coming into force of the Foreign Exchange Regulation Act, 1973, the argument was that the authorities cannot take anyaction against the petitioner under the new Act. In this case, with reference to anact done by the writ petitioner when the Foreign Exchange Regulation Act, 1947 wasin force, proceedings were initiated after the coming into force of the Foreign Exchange Regulation Act, 1973, the argument was that the authorities cannot take anyaction against the petitioner under the new Act. Reliance was placed in paragraph 8on the judgment and the same reads as follows :- "the assumption behind Shri Garg s argument regarding the effect of theprovisions of section 6 of the General Clauses Act is that the provisions ofthe repealed Act as such are continued in force even. after the repeal andthat the operation of the provisions of the repealing Act is barred. This isnot borne out by the language of section 6. For section 6 does not save theprovisions of the repealed Act as ,such. It "only saves the rights andliabilities which have accrued thereunder. All it ensures is that these rightsand liabilities would be enforced notwithstanding the repeal. For thislimited purpose it is not necessary to invoke the aid of the repealed Act assuch. For, the rights and liabilities may be such that they can been forcedunder the repealing Act itself. Even when the repealing Act is inconsistentwith the enforcement of these rights and liabilities, section 6 would save theoperation of only those parts of the repealed Act the operation of whichbeyond the date of repeal is necessary to give effect to these rights andliabilities. In understanding section 6 of the General Clauses Act, therefore,the first distinction to be made is between the provisions of the repealedact as such and the rights and liabilities which have accrued when that Actwas in force, i. e. , events or transactions or facts as distinguished from law orthe provisions of the repelled statute. " THIS Court negatived the contention that by virtue of Section 6 of the Generalclauses Act the jurisdiction of the authorities came to an end after the coming intoforce the Foreign Exchange Regulation Act, 1973. The passage relied upon by thelearned senior counsel hardly supports the petitioners. ( 27 ) THE learned sr. counsel then REFERRED TO to the decision reported in Qudrat Ullahvs. Municipal Board, Bareilty, (1974)1 Supreme Court Cases 202. The facts of this caseneed not be narrated in detail. The Municipal Board was owner of the property. Bysome arrangement the appellant before the Supreme Court was put in possession ofthe property. ( 27 ) THE learned sr. counsel then REFERRED TO to the decision reported in Qudrat Ullahvs. Municipal Board, Bareilty, (1974)1 Supreme Court Cases 202. The facts of this caseneed not be narrated in detail. The Municipal Board was owner of the property. Bysome arrangement the appellant before the Supreme Court was put in possession ofthe property. The point was whether the arrangement was a lease or as a licence. Atthe time of the transaction, the parties were governed by the United Provinces (Temporary) Control of Rent and Eviction Act, 1947. Subsequently, during the pendencyof 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 Actpersons in possession would not be entitled to any rights under the earlier Act. Thepoint that was framed for consideration by the Supreme Court in this behalf is as fol-lows :- "if Ex. I' 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 pendencyof the present appeal?" THE Supreme Court said that the rights of parties could be decided as per the lateract. The Supreme Court posited as under :- "now comes the additional ground taken before us based on the passage ofthe later Act. It is admitted that, by frequent amendments the duration ofthe Act was extended from time to time till at last it was to expire on 30/09/1972. Some time before this date the later Act, a permanentstatute, was put on the Statute Book which by Section 43 repealed the Actof 1947 and by Section 2 excluded from the scope of the protection of theact 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 thegovernment of India or any local authority; or "43. Repeal and savings.- (1), The United Provinces (Temporary) Control ofrent and Eviction Act, 1947 (V. P. Act No. III of 1947) is hereby repealed. 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 thegovernment of India or any local authority; or "43. Repeal and savings.- (1), The United Provinces (Temporary) Control ofrent and Eviction Act, 1947 (V. 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 naturaldeath by the end of September, 1972 but before its life had run out was extinguished by statutory repeal on 22/07/1972 on Which date the later Actcame into force. Surely, there has been a repeal of the Act which was reliedupon successfully by the defendant and his legal representative the appellant, throughout the litigation. But now that defence or protection is nolonger available. However, counsel for the appellant contends that a righthas accrued to him. under the Act which cannot be taken away by its repealsince the later Act is not in terms' a retrospective one. Factually, it is correctto say that Section 43 has not been retrospective. Even so, the counsel forthe respondent submits that, on the repeal of the Act, the disability whichbis clients suffered has disappeared and he is entitled to enforce his causeof action. According the tenant but imposed a disability on the landlord inenforcing his right to evict and that a mere defence cannot be described as aright in the defendant. According to him, the 'right' REFERRED TO to under Section 6 of the repealing Act is a substantive right and not a defensive plea. We have to examine these rival positions insome detail. CERTAIN propositions are clear regarding the consequence of repeal of astatute. The general principle is that an enactment which is repealed is tobe treated, except as to transactions passed and closed, as if it had never existed. However, the operation of this principle is subject to any savingswhich may be made, expressly or by implication, by the repealing enactment (vide Halsbury's Laws of England, Vol. 36 paragraph 714 ). " THIS decision does not at all help the petitioners because the case of the petitionersis that the nazul lands should be dealt with' as if in continuation of U. P. Town Improvement Act, 1919 and the petitioners substantial light is saved by Section 6 of thegeneral Clauses Act. 36 paragraph 714 ). " THIS decision does not at all help the petitioners because the case of the petitionersis that the nazul lands should be dealt with' as if in continuation of U. P. Town Improvement Act, 1919 and the petitioners substantial light is saved by Section 6 of thegeneral Clauses Act. While developing his argument further it was contended by thelearned 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 therepeal Act continues with full force. He relied on the decision in State of Punjab vs. Mohar Singh Pratap Singh, A. I. R. 1955 S. C. 84. Tersely stated the facts are after thepartition of India East Punjab Refugees (Registration of Land Claims) Act (12 of1948) was enacted. That gave right to repatriate from Pakistan to make a claim withthe 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 prosecutionwas 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 Landclaims) Act Ordinance (7 of 1948 ). The argument was that the Magistrate before himhe was tried for an offence under the Ordinance before the Act came into force andthe prosecution was started long after the Ordinance had come to an end. Reliancewas placed on Section 6 of the General Clauses Act, 1897. The passage relied on bythe 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 acontrary intention can be gathered from the new enactment. " 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. Thatwas reversed by the Supreme Court setting aside the judgment of the High Court. I failto 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 acontrary opinion. Thatwas reversed by the Supreme Court setting aside the judgment of the High Court. I failto 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 acontrary opinion. But when the repeal is followed by fresh legislation on thesame subject we would undoubtedly have to look to the provisions of thenew Act, but only for the purpose of determining whether they indicate adifferent intention. THE line of enquiry would be, not whether the new Act expressly keeps aliveold rights and liabilities but whether it manifests an intention to destroythem. We cannot therefore subscribe to the broad proposition that section6 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 suchcases also unless the new legislation manifests an intention incompatiablewith or contrary to the provisions of the section. Such incompatibility wouldhave to be ascertained from a consideration of all the relevant provisions ofthe new law and the mere absence of a saving clause is by itself notmaterial. " RELYING on this case, learned senior counsel submitted in such cases unless the newact has a manifest intention of incompatibility and to discover which the scheme ofboth the acts (D. D. Act, 1957 and D. M. C. Act, 1957) will have to be seen, the savingclause either by necessary implication or expressly, would save the existing arrangement. By this, the learned senior counsel again would try to persuade us to concludethat the MCD has no jurisdiction in the light of the statutory scheme enumerated byhim. He REFERRED TO to the case reported in M/s. Munshi Lal Beni Ram Glass Works vs. I. S. S. Singh, Assistant Labour Commissioner and others, 1969 (3) S. C. C. 786 and the pasage in paragraph 11. The Supreme Court simply followed the decision in 1955 S. C. 4 (supra ). The next case REFERRED TO to by him The Nagpur Hotel Owners Associationand others vs. The Corporation of the City of Nagpur and another, 1979m. C. C. 329. I doit want to refer to the facts. The case is similar to the decision of this Court in P. N. Balusubramanian vs. Union of India and another, ILR (1976) 1 Delhi 506. C. C. 329. I doit want to refer to the facts. The case is similar to the decision of this Court in P. N. Balusubramanian vs. Union of India and another, ILR (1976) 1 Delhi 506. It was and that there was repugnancy between Nagpur Corporation Act 1950 and theevention of Food Adulteration Act, 1954 for the purpose of escaping out of an of-fence committed with reference to food adulteration, the Bombay High Court expressed the view that there was no repugnancy and the prosecution launched underthe Prevention of Food Adulteration Act, 1954 was in accordance with law. This Section does not help the petitioners. ( 28 ) FOR the purpose of bringing to our notice the phraseology adopted by thesupreme Court about the change of hats, the learned senior counsel relied upon thedecision reported in Vasant Kumar Radha Krishan Bora (Dead) by L/rs. vs. Board oftrustee of the Port of Bombay and others, 1991 (1) S. C. C. 761. This is to show that afterfhe coming into force of the D. D. Act and by virtue of the provisions of Section 60 andsection 12 the Delhi Improvement Trust has merely changed its hat and the properauthority now is the Delhi Development Authority under the Delhi Development' Act,1957. The learned senior counsel while developing his argument went to the otheraspects 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 to by the learned senior counsel would bethings 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 thedelhi Municipal Corporation Act, 1957. He relied on the decision in M/s. Universalimports Agency and another vs. The Chief Controller of Imports and Exports and others,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 acontract with the dealer in Japan for importing articles. The transaction had beencomplete in every respect and the goods also had been imported and as a matter offact arrived in India before the order came into force. A trader in the Union territory of Pondicherry, which was under the control of French Government, had entered into acontract with the dealer in Japan for importing articles. The transaction had beencomplete in every respect and the goods also had been imported and as a matter offact arrived in India before the order came into force. The authorities under thisorder sought to levy duty on the basis that the import was governed by the provisionsof the order while as per the law existing prior to-that publication the duty payable wasless. The argument on behalf of the trader in Pondicherry was as per the saving clausein the in the order the import that was done by him was on 'things done coming withinthe saving clause' and, therefore, he cannot be called upon to pay duty under thisorder. The Supreme Court accepted that contention. In my view, the position in thiscase 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 towhich they are in possession are 'things done' coming under the saving clause in Section 60 of the D. D. Act, 1957. ( 29 ) THE learned senior counsel relied on decision in State of U. P. and Others vs. Maharaja Dharamander Prasad Singh, AIR 1989 S. C. 997 at page 1006. Except thecase refers to nazul land there is nothing which has any bearing on this case. Thenazul land therein was leased out to the lessee. From the lessee the respondent beforethe Supreme Court attempted to put up a commercial complex after obtaining permission from the Vice Chairman inviolation of the conditions of the lease. The Government issued notice to cancel the lease. The case of the respondent was that the permission was granted by the Vice Chairman and that cannot be revoked. The Highcourt accepted the contention on behalf of the respondent and allowed his writ petition. The Supreme Court reversed the decision of the High Court. SECTION 3 of the U. P. Urban Town Planning and Development Act is in pari materiawith Section 12 of the D. D. Act, 1957. Section 41 of the U. P. Urban Town Planning anddevelopment Act empowers the government to have control over the administrationby the Vice Chairman of the Development Authority. SECTION 3 of the U. P. Urban Town Planning and Development Act is in pari materiawith Section 12 of the D. D. Act, 1957. Section 41 of the U. P. Urban Town Planning anddevelopment Act empowers the government to have control over the administrationby the Vice Chairman of the Development Authority. Therefore, the decision by thesupreme Court cannot be of any help to the petitioners. ( 30 ) IT was further contended by the learned senior counsel that D. D. Act, 1957 isspecial Act and deals only with nazul lands and D. M. C. Act, 1957 is a (general Actand, therefore, if there is a conflict between general Act and special Act the latterwould prevail. ( 31 ) THE learned senior counsel then REFERRED TO to the aspect of vesting. The learnedsenior counsel REFERRED TO to Law Dictionary of Emami. The learned senior counselreferred TO to the decision in Fruit and Vegetable Merchants Union vs. Delhi Improvementtrust, AIR 1957s. 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 vestingin possession and vesting in title. This decision was followed by the Supreme Court incorporation of Hyderabad vs. P. N. Murthy and Others, 1987 (1) S. C. C. 568 = AIR 1987s. C. 802. It is asserted by the learned senior counsel that the Trust held the land onbehalf of the government. The learned senior counsel then REFERRED TO to the pleadings inc. W. 4958/94 and brought to out notice the lease deed dated 27. 9. 1948 i. e. a lease deedexecuted between the Delhi Improvement Trust, a body incorporate under the Unitedprovinces Town Improvement Act, 1919 and one Vidya Wati, who was the lessee. Thelease deed is in perpetuity from the date of lease dated 16. 7. 1948. Clause (i) refers tothe payment of rent and other tax rates and assessments. 9. 1948 i. e. a lease deedexecuted between the Delhi Improvement Trust, a body incorporate under the Unitedprovinces Town Improvement Act, 1919 and one Vidya Wati, who was the lessee. Thelease deed is in perpetuity from the date of lease dated 16. 7. 1948. Clause (i) refers tothe payment of rent and other tax rates and assessments. Clauses (ii), (iv) and (vi) ofthe agreement read as follows :- (II) to erect upon the said land within one year from the date hereof andthereafter at all times during the said term to maintain thereon a goodand substantial residential Bunglow, according to the Rules anddirections which now are or may hereafter be in force in Delhi underany Municipal Act or any bye-law framed by the Lessor or under anyother law Rule or Regulation for the time being applicable thereto, inrespect to materials to be used in and method of construction ofbuildings in the quarter in which the said land is situate to submitplans, sections, elevations and specifications for the construction of thebuilding to" be erected upon the said land for the approval of thelessor in duplicate, not to start the work of construction unless anduntil the approval of the Lessor has been obtained in writing, and notto make any alterations in and additions to the buildings so approvedby the Lessor at any time either externally or internally without firstobtaining the permission of the Lessor in writing; (IV) to complete the said buildings within One Year from the date hereofto the satisfaction of the Lessor and maintain the premises and allbuildings thereon in a sanitary condition according to the directions ofthe Lessor or, some officer duly authorised by him in this behalf; (VI) not to use the said land and buildings that may be erected thereonduring the said term for any other purpose than for the purpose ofresidential bungalow without the consent in writing of the said Lessor;provided that the lease shall become void if the land is used for anypurpose other than for which the lease is granted not being a purposesubsequently approved by the Lessor; ( 32 ) THEREFORE, on a reading of the entire lease deed, according to the learnedsenior counsel in the place of Delhi Improvement Trust Delhi Development Authoritywould come in and, therefore, there is no duality of power and there is no division ofpower. Further developing this point, learned senior counsel would contend that theauthority with reference to land for supervising and control of the buildings whichwere under the control of the Delhi Improvement Trust is Delhi Developmentauthority and, therefore, the MCD does not have any jurisdiction to take any action inrespect of the land or the buildings thereon which were under the control of the Delhiimprovement Trust. ( 33 ) THE learned senior counsel relied upon the provisions of the Governmentgrants 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 bedeemed ever to have applied to any grant or other transfer of land or of anyinterest therein heretofore made or hereafter to be made [by or on behalf ofthe Government] to, or in favour of, any person whomsoever, but every suchgrant and transfer shall be construed and take effect as if the said Act hadnot been passed. 3. Government grants to take effect according to their tenor.- Allprovisions, restrictions, conditions and limitations over contained in anysuch grant or transfer as aforesaid shall be valid-and take effect according totheir tenor, any rule of law, statute or enactment of the Legislature to thecontrary notwithstanding. "relying upon these provisions the learned senior counsel contends hat no law canabridge 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 scopeof the Government Grants Act and the Delhi Municipal Corporation Act, 1957. Thelearned senior, counsel in this behalf REFERRED TO to the decision in ILR 27 Allahabad 634 (P. C. ). The circumstances under which the matter went up to the Privy Council andthe facts are these; on 19-10-1859 a sanad was granted to one G. S. The terms of thegrant are, to the grantee and his heirs without indicating the line of inheritance; thatg. S. died on 16-1-1860 leaving behind him his two brothers G and D. D had two sonsat the time of death of G. S. Balbhaddar and Sheo. Balbhaddar's wife is Raghudanekunwar. 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. S. died on 16-1-1860 leaving behind him his two brothers G and D. D had two sonsat the time of death of G. S. Balbhaddar and Sheo. Balbhaddar's wife is Raghudanekunwar. 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 awill bequeathing ,the estate to Balbhaddar, who succeeded and got possession of the tahika. During Balbhaddar's lifetime Oudh Estate Act, 1869 was passed taking over the entire estateby the British Government. It would appear that in 1861 a new sanad was given to G. 34.- 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 thenearest male heir according to the rule of primogeniture. "the Privy Council REFERRED TO 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 pointof 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 onhis heirs and successors. " IN the Appeal Court the view was thus expressed:-"the fact which rendersthe sanad on which the defendant relies absolutely useless is the fact thatthe estate had already been conferred by the Government on Gajraj Singhand his heirs for ever when it professed to give it to Girwar Singh and hisheirs for ever. "at page 653 referring to the Government Grants Act, the Privy Council observed asfollows :- "in the argument before their Lordships another objection to the powers ofgovernment was raised. "at page 653 referring to the Government Grants Act, the Privy Council observed asfollows :- "in the argument before their Lordships another objection to the powers ofgovernment was raised. It was suggested that though in the earliertroublous timed many things were effectively done by Government as acts ofstate, still, in or after 1861 (which is the earliest possible date for Girwar'ssanad, for it was in April of that year that he asked for it) no executive act ofthe 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 presentcase would be the Hindu law. WHATEVER force such a contention might otherwise have had appears totheir Lordships to be removed by the Act to which their attention wascalled, 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 thecrown to impose limitations and restrictions upon grants and other transfers made by it or under its authority, and it is expedient to remove suchdoubts. And section 3 enacts that "all provisions, restrictions, conditions,and limitations over contained in any such grant or transfer as aforesaidshall be valid and take effect according to their tenor, any rule of law,statute, or enactment of the Legislature to the contrary notwithstanding. " ( 35 ) THEREFORE, the point that arose for decision before the Privy Council was entirely different and the petitioners cannot rely upon the Government Grants Act, 1895to say that the MCD has no right to issue the notice of demolition in case of violationof the building bye laws. It may also be noticed that the petitioners cannot rely uponthe Government Grants Act, 1895 because the MCD does not seek to interfere withthe possession of thp land of the petitioners, and the case of the MCD is that construction cannot be put up in these lands without obtaining permission from the MCD. Itdoes not require any argument to show that the petitioners cannot rely upon thegovernment Grants Act for the purposes of maintaining their illegal acts. ( 36 ) THE learned senior counsel then relied upon the decision in Janendra Nathnanda and others vs. Jadu Nalh Banerji and others, AIR 1938 Calcutta 211 at page 214. This again is easily distinguishable and does not render any help to the case of thepetitioners. ( 36 ) THE learned senior counsel then relied upon the decision in Janendra Nathnanda and others vs. Jadu Nalh Banerji and others, AIR 1938 Calcutta 211 at page 214. This again is easily distinguishable and does not render any help to the case of thepetitioners. ( 37 ) THE learned senior counsel then invited our attention to the decision of thesupreme Court in State of U. P. vs. Zahoorahmad and others, AIR 1973 S. C. 2520paragraph 11. Here again, the facts are entirely different and the Supreme Court didnot touch any point relevant to the points at issue. The learned senior counsel thenreferred TO to the decision of the Supreme Court in Express Newspapers Pvt. Ltd. andothers vs. Union of India and others, A. I. R. 1986 S. C. 872. This is the case where thelt. Governor took action against the Express Newspapers Pvt. Ltd. for the allegedviolation 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 thesupreme Court noticed the construction done by the petitioner, which reads as follows "the material on record discloses that the construction of the new Expressbuilding with an increased FAR of 360 with a double basement was in conformity with Cls. 2 (5) and 2 (14) of the perpetual lease-deed dt. 17/03/1958 inasmuch as it was with the express sanction of the lessor i. e. the Unionof India. It is also quite clear that Sikander Bakht, the then Minister forworks and Housing was throughout guided by the officials of the Ministry,particularly the Secretary, Ministry of Works and Housing, who was the competent authority to act for the President with regard to any contract, grantor assurance of property of the Union relating to any matter whatsoever inrelation thereto by virtue of the notification issued by the President underart. 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 ofthe then Vice-Chairman, Delhi Development Authority dt. Oct. 21, 1978 asone under 'special appeal'. "in paragraph 30 at page 887 the Supreme Court noticed the permission given bythe Ministry to the petitioner for the construction, which is as follows :- "the Ministry of Works and Housing by letter dt. Feb. Oct. 21, 1978 asone under 'special appeal'. "in paragraph 30 at page 887 the Supreme Court noticed the permission given bythe Ministry to the petitioner for the construction, which is as follows :- "the Ministry of Works and Housing by letter dt. Feb. 2, 1978 conveyed to thevice Chairman, Delhi Development Authority the decision of the Union ofindia 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 sothat with the extra basement area the Firm would have an additional built-uparea of nearly 50,000 sq. feet. You are requested to take necessary action inthe matter". AT page 889 the Supreme Court noticed the petitioners' case as follows :- "in the facts and circumstances hereinbefore adumbrated, the petitionerspleaded inter alia that: 1. The proposed action of re-entry by the lessor i. e. the Union of India,ministry of Works and Housing at the instance of the Lieutenantgovernor of Delhi is meant to be an act of political vendetta. Theimpugned notices have been issued with an evil eye and an unequalhand and with a deliberate design to compel the petitioners to closedown the Express Group of Newspapers in general and the Indianexpress in particular. The said notices are ex facie illegal and withoutjurisdiction and are contrary to the factual and legal provisions. Thearbitrary and discriminatory initiation of executive action under theguise of alleged infraction of the terms of the lease and/or the Masterplan of Delhi and/or the Municipal building bye-laws is violative of thepetitioners' 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 FARof 360 was in conformity with C1. 2 (5) of the perpetual lease dt. Mar. 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, thethen Minister for Works and Housing to sanction the construction of thenew Express Building with an increased FAR of 360 was in accordancewith the. Master Plan, after M. N. Buch, Vice-Chairman, Delhidevelopment Authority by his order dated Oct. 21, 1978 as "one underspecial appeal" under the Master Plan, Chapter II, Part A, Zoningregulations, Item 13, Use Zone-C-2, at p. 50 directed that plots Nos. 9and 10 at Bahadurshah Zafar Marg leased to the Express Newspaperspvt. Master Plan, after M. N. Buch, Vice-Chairman, Delhidevelopment Authority by his order dated Oct. 21, 1978 as "one underspecial appeal" under the Master Plan, Chapter II, Part A, Zoningregulations, Item 13, Use Zone-C-2, at p. 50 directed that plots Nos. 9and 10 at Bahadurshah Zafar Marg leased to the Express Newspaperspvt. Ltd. should be 'amalgamated together into one plot and takinginto account the existing built up area occupied by the old Expressbuilding built on the eastern portion of the underground sewage drainwith an FAR of 260, the construction of the new Express Building onthe western portion thereof after removal of the sewer line with anoverall FAR of 360 was permissible. " THIS is the Express Newspaper's case and the facts are different and the Supremecourt decided the issue on the peculiar facts of that case. I fail to see how thisdecision can be of any help to the petitioners. The learned senior counsel thenreferred TO 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 valeal quam pereat - It is a rule of lawthat the legislator intends the interpreter of an enactment to observe themaxim ut res magis valeat quam pereat; so that he must construe the enactment in such a way as to implement, rather than defeat, the legislative purpose. " ( 38 ) THE learned senior counsel REFERRED TO to Sections 12 and 22 of the D. D. Act,1957 and contended that there is a distinction between the two Sections which wouldhave 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 thatdoes not speak of nazul lands. According to the learned senior counsel developmentarea means hereafter to be declared under this Act and the area means the land already there in the scheme. He then REFERRED TO to Section 59 of the Act which speaks ofdissolution of the authority. According to the learned senior counsel, it is significantto notice that there is similar provision in Section 103 of the U. P. Town Improvementact, 1919. Therefore, the learned senior counsel wanted to infer that the scheme of heact was to make the DDA as successor-in-interest as it were, of the Delhi Improvement Trust. According to the learned senior counsel, it is significantto notice that there is similar provision in Section 103 of the U. P. Town Improvementact, 1919. Therefore, the learned senior counsel wanted to infer that the scheme of heact was to make the DDA as successor-in-interest as it were, of the Delhi Improvement Trust. The learned senior counsel then REFERRED TO to the introduction of Section22a in the D. D. A. Act in 1963, which reads as follows :- ( 39 ) AIR 1974 SC 1863 related to superseding of the committee of management ofa municipality. I have gone through the case and I do not find any ratio relevant to thepoint at issue. AIR 1984 S. C. 626 is a case where the point that was mooted waswhether under section 59 of the City of Nagpur Corporation Act, 1950 the Commercial, Corporation on whom vested the exercise, supervision and control over the actionproceedings of all municipal officers and servants. Supreme Court said that vestingand control read together would convey an absolute control in the authority. The ratioof this decision does not at all come to the help of the petitioners. ( 40 ) THE learned senior counsel then said the power of the authority under thedelhi Municipal Corporation Act is a discretionary power and, therefore, the discretion has to be exercised by the concerned authority in accordance with the knownprinciples and it cannot be arbitrary and fanciful and at the whims and fancies of theconcerned authorities. In CW. 4545/94 the petitioners put their case thus:- "9. It appears the promoters of the building applied to Respondent No. 3for grant of permission for erecting residential building, a fact thepetitioner has only recently come to know. But this is not materialbecause the area in which the building stands, is outside thejurisdiction of the Respondents 3 and 4, and as already stated inparagraph 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 section186, U. P. Municipalities Act, 1916, read with Section 49, U. P. Townimprovement Act, 1919, and Section 60, Delhi Development Act, 1957. 10. Most of the buildings in the area in which the building is situate, arecommercial and multi-storeyed structures. 12. Action, if any,in regards to the building can only be taken in accordance with section186, U. P. Municipalities Act, 1916, read with Section 49, U. P. Townimprovement Act, 1919, and Section 60, Delhi Development Act, 1957. 10. Most of the buildings in the area in which the building is situate, arecommercial and multi-storeyed structures. 12. THE building plans for all buildings other than those erected by eitherthe Delhi Development Authority or Manager Telephone Nigam, weresanctioned as residential buildings. 13. THIS fact in itself shows, the building bye-laws, so far as the area inwhich he building stands, are unreasonable and any insistence oncompliance of such unreasonable bye-laws would be per se violative ofreasonableness. If the Delhi Development Authority may raise highrise buildings and put it to commercial use, if Mahanagar Telephonenigam may with impurity do the same, if private persons may also do likewise in the immediate vicinity, it is inherently discriminatory tosubject the building to a hostile treatment. 15. THE threatened demolition of the building, by Delhi Municipalcorporation of Delhi would be abuse of authority and power, exerciseof excess of jurisdiction and mala fide too, as the building is not withinthe area over which the said Municipal. Corporation can exercisepower and authority. ( 41 ) THE learned senior counsel REFERRED TO to the photographs shown as annexure P. 2collectively to the writ petition where there are number of buildings having more than2. 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 thedocuments REFERRED TO 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, annexedto the writ petition as Annexure P-2a, 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 ofplan of a Five storeyed building sanctioned by Municipal Corporation ofdelhi. " 5. Paragraph 11 of the writ petition, after the amendmentaforementioned will read as under :- "11. THE petitioner is also placing on record, as Annexure P-2b, a photo copy ofplan of a Five storeyed building sanctioned by Municipal Corporation ofdelhi. " 5. Paragraph 11 of the writ petition, after the amendmentaforementioned will read as under :- "11. Petitioner annex to this petition as Annexure 'p-2' (Colly.) a collage ofphotographs which show, there already exist a large number ofbuildings, put to non residential use and in height too having morefloors than two and a half, some are ten floor or even sixteen floorbuildings. THE petitioner craves leave to also refer to and rely upon a chart, annexedto the writ petition as Annexure P-2a, giving list of buildings in Delhi whichhave more than two and half storeys. THE petitioner is also placing on record, as annexure P-2b, a photo copy ofplan of a five storeyed building sanctioned by Municipal Corporation ofdelhi. " ( 42 ) THE learned senior counsel submitted that it is the duty of the authorities tofind out whether there are unauhorised constructions in the locality. There are 19 officers in MCD and 9 officers in DDA for this purpose. According to the learnedsenior counsel there must be some reasons for the authority not to take serious view inrespect of the buildings in question in this case also when they had allowed the otherconstructions REFERRED TO to in paragraphs 4 and 5 of the amendment petition. Thelearned senior counsel, as per the amendment, produced a sanctioned plan by MCDin Jhandewalan Scheme about which Mr. Arun Jaitley, learned senior counsel formcd submitted that it was a wrong action by the MCD and action is being takenagainst the concerned authorities. The learned senior counsel for the petitionersreferred TO to bye-law 481-483 to be approved by the Government. The learned seniorcounsel asserted that MCD and DDA should explain how the plan could be sanctioned by the authorities. The learned senior counsel then REFERRED TO to the counterfiled by the MCD at page 77 and according to the learned senior counsel paragraph 10in the writ petition has not been traversed. In my view that when facts are before thecourt, when there is a general denial by the authorities of all the allegations in thepetition, the fact that there is no specific denial of paragraph 10 cannot be pressedinto service by the petitioners when they have to prove their case by producing allmaterials in this behalf. In my view that when facts are before thecourt, when there is a general denial by the authorities of all the allegations in thepetition, the fact that there is no specific denial of paragraph 10 cannot be pressedinto service by the petitioners when they have to prove their case by producing allmaterials in this behalf. The petitioners cannot try to pick hole in the case of therespondents and try to spin out a case. ( 43 ) THE learned senior counsel REFERRED TO to the decision (96) Lawyers Edition atpage 113 and 116. The learned senior counsel REFERRED TO to Khudi Ram Dass vs. State ofwest Bengal and others, AIR 1975 S. C. 550 at page 552 paragraph 11. The case aroseunder Internal Security Act. Then the learned senior counsel REFERRED TO to Corporationof Calcutta vs. Mulchand Agarwala, AIR 1956 S. C. 110. The relevant passage is at page114, which reads as follows :- "in this view, the point for decision is whether the order passed by themunicipal Magistrate and affirmed by the learned Judge in revision is opento attack on the merits. The respondent contends that the Magistrate hasunder S. 363 a discretion whether he should pass an order for demolition ornot, and that this Court should not in appeal interfere with the exercise ofthat discretion especially when it has been concurred in by the High Court. Now, the language of S. 363 is that the Magistrate 'may' pass an order fordemolition 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 usedin S. 363. WE agree with the respondent that S. 363 does not require that when abuilding is shown to have been erected without permission or completedotherwise than in accordance with the terms of the permission or in breachof the building rules, an order for its demolition should be made as a matterof course. In our opinion, it does give the Magistrate a discretion whetherhe 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 S. 449 of the Calcutta Municipal Act, (Bengal Act III of1899) which corresponds to S. 363 of the present Act on language which is,so far as the present matter is concerned, the same. THAT was the construction put in - 'abdul Samad v. Corporation of Calcutta,33 Cal. 287 (A), on S. 449 of the Calcutta Municipal Act, (Bengal Act III of1899) which corresponds to S. 363 of the present Act on language which is,so far as the present matter is concerned, the same. In re-enacting thepresent section in the same terms as S. 449 of Bengal Act III of 1899, it mustbe taken that the legislature has accepted the interpretation put on them in'33 Cal 287 (A)', as correctly representing its intention. It should accordingly be held that the word 'may' in S. 363 does not mean 'shall' and that themagistrate has under that section a discretion whether he should pass anorder for demolition or not. THE position, therefore, is that the orders of the courts below are based onmistakes and misdirections, and cannot be supported. The conduct of therespondent in adopting a hide-and-seek attitude in completing the constructions in deliberate defiance of the law calls for severe action. It would bemost unfortunate, and the interests of the public will greatly suffer, if the notion were to be encouraged that a person might with impunity break thebuilding rules and put up a construction and get away with it on payment offine. " THE learned senior counsel said that the word used 'may' has to be 'construedgiving 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. Actalso 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 :- "343. Order of demolition and stoppage of building and works in certaincases and appeal (1) Where the erection of any building or execution of any work has beencommenced, or is being carried on, or has been completed without orcontrary to the sanction REFERRED TO to in section 336 or in contraventionof any condition subject to which such sanction has been accorded orin contravention of any provisions of this Act or bye-laws madethereunder, the Commissioner may, in addition to any other actionthat may be taken under this Act, make an order directing that suchcrection. work shall be demolished by the person at whose instance theerection or work has been commenced or is being carried on or hasbeen completed, within. such period (not being less than five days andmore than fifteen days from the date on which a copy of the order ofdemolition with a brief statement of the reasons therefore has beendelivered to that person), as may be specified in the order ofdemolition: PROVIDED that no order of demolition shall be made unless the person hasbeen given by means of a notice served in such manner as the Commissionermay think fit, a reasonable opportunity of showing cause why such ordershall 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, whethermade at the time of the issue of the notice under the first proviso or at anyother time. direct the person to stop the erection or work until the expiry ofthe period within which an appeal against the order of demolition, if made,may be preferred TO under sub-section (2 ). (2) Any person aggrieved by an order of the Commissioner made undersub-section (1) may prefer an appeal against the order to [theappellate Tribunal] within the period specified in the order for thedemolition of the erection or work to which it relates. (3) Where an appeal is preferred TO under sub- section (2) against an orderof demolition [the Appellate Tribunal may, subject to the provisions ofsub-section (3) of section 347] stay the enforcement of the order onsuch terms, if any, and for such period, as it may think fit. PROVIDED that where the erection or any building or execution of any workhas not been completed at the time of making of the order of demolition,. noorder staying the enforcement of the order of the demolition shall be madeby [the Appellate Tribunal unless security, sufficient in the opinion of thesaid Tribunal] has been given by the appellant for not proceeding with sucherection or work pending the disposal of the appeal. (4) [no Court] shall entertain any suit, application or order proceeding forinjunction or other relief against the Commissioner to restrain himfrom taking any action or making any order in pursuance of theprovisions of this section. (5) [subject to an order made by the Administrator on appeal undersection 347. (4) [no Court] shall entertain any suit, application or order proceeding forinjunction or other relief against the Commissioner to restrain himfrom taking any action or making any order in pursuance of theprovisions of this section. (5) [subject to an order made by the Administrator on appeal undersection 347. D, every order by the Appellate Tribunal Appeal under thissection, and subject to the orders of the Administrator and theappellate Tribunal on appeal] the order of demolition -made by thecommissioner shall be final and conclusive. (6) Where no appeal has been preferred TO against an order of demolition made by the Commissioner under sub-section (1) or where an order ofdemolition made by the Commissioner under that sub-section [hasbeen confirmed on appeal, whether with or without variation, by theappellate Tribunal, and by the Administrator in a case where anappeal has been preferred TO against the order of the [the Appellatetribunal] the person against whom the order has been made shallcomply with the order within the period specified therein, or as thecase may be, within the period, if any fixed by [the Appellate Tribunalor the Administrator] on appeal and on the failure of the person tocomply with the order within such period, the Commissioner mayhimself cause the erection or the work to which the order relates to bedemolished and the expenses of such demolition shall be recoverablefrom such person as an arrear of tax under this Act. ]" ( 44 ) WE can usefully refer to the passage in Interpretation of Statutes by G. P. Singh5th Edn. (1992) page 264 wherein reference is made to the decision of the Supremecourt in Central Bank of India Ltd. vs. Karunarnoy Banerjee, AIR 1968 S. C. 266 atpage 267. I shall deal with tilis contention at the appropriate stage presently. Thelearned senior counsel relied upon a few passages from Wade Administrative Law 375indiscriminate use of Power, 395-396 reasonableness. The learned senior counselrelied 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, capriciousand abuse of discrimination'. Clause of the Federal Administration Procedure Act quoted in the preceding section. There are comparable provisionsin State Review Statute. They confirm the judicial authority to intervenewhere discretion has been abused. " ABUSE of discretion occurs where the power has been exercised in a manner i. e. inthe traditional phrase, arbitrarily or capriciously. Clause of the Federal Administration Procedure Act quoted in the preceding section. There are comparable provisionsin State Review Statute. They confirm the judicial authority to intervenewhere discretion has been abused. " ABUSE of discretion occurs where the power has been exercised in a manner i. e. inthe traditional phrase, arbitrarily or capriciously. The test is once again a test ofreasonableness. Rationality is what is required under both the substantial evidencerule and the arbitrary and capricious standard. Review of discretion is thus subject toessentially the same standard of review as findings of facts under the substantialevidence rule. Under that rule as seen in Section 10. 8 the Court now determineswhether a challenged finding was reasonable one in the light of evidence available onrecord. A comparable determination is made when discretion is reviewed. The Courtdetermines whether the exercise of discretionary power was reasonable on the recordpresented and the circumstances of the particular case. As the Supreme Court hasput it, where the exercise of administrative decision is at issue, the question is whetherthe challenged acts falls within that 'zone of reasonableness' that the Courts allow theagency on review. Mobil Oil Corporation vs. F. D. C. (1974) 417 U. S. at page 307. ( 45 ) THE learned senior counsel REFERRED TO to the decision in Air India vs. Nergeshmerza and others, AIR 1981 S. C. 1829. He relied upon the decision at page 1850 whichreads as follows :- "coming now to the second limb of the provisions according to which theservices of AHs would stand terminated on first pregnancy, we find ourselves in complete agreement with the argument of Mr. Setalvad that this is amost unreasonable and arbitrary provision which shocks the conscience ofthe court. The Regulation does not prohibit marriage after four years and ifan AH after having fulfilled the first condition becomes pregnant, there isno reason why pregnancy should stand in the way of her continuing in service. The Corporations represented to us that pregnancy leads to a numberof complications and to medical disabilities which may stand in the efficientdischarge of the duties by the AHs. It was said that even in the early stageof pregnancy some ladies are prone to get sick due to air pressure,-nausea inlong flights and such other technical factors. The Corporations represented to us that pregnancy leads to a numberof complications and to medical disabilities which may stand in the efficientdischarge of the duties by the AHs. It was said that even in the early stageof pregnancy some ladies are prone to get sick due to air pressure,-nausea inlong flights and such other technical factors. This, however, appears to bepurely an artificial argument because once a married woman is allowed tocontinue in service then under the provisions of the Maternity Benefit Act,1961 and The Maharashtra Maternity Rules, 1965 (these apply to both thecorporation as their Head offices are at Bombay,), she is entitled to certainbenefits including maternity leave. In case, however, the Corporations feelthat 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 maternityleave for a period of 14 to 16 months and in the meanwhile there could beno difficulty in Management making arrangements on a temporary or adhoc basis by employing additional AHs. We are also unable to understandthe argument of the Corporation that a woman after bearing children becomes weak in physique or in her constitution. There is neither any legalnor medical authority for this bald proposition. Having taken the AH inservice and after having utilised her services for four years, to terminate herservice by the Management if she becomes pregnant amounts to compellingthe poor AH not to have any children and thus interfere with and divert theordinary course of human nature. It seems to us that the termination of theservices of an AH under such circumstances is not only a callous and cruelact but an open insuit to Indian womanhood - the most sacrosanct andcherished institution. We are constrained to observe that such a course ofaction is extremely detestable and abhorrent to the notions of a civilisedsociety. Apart from being grossly unethical, it smacks of a deep rootedsense of utter selfishness at the cost of all human values. Such a provision,therefore, is not only manifestly unreasonable and arbitrary but contains thequality of unfairness and exhibits naked despotism and is, therefore, clearlyviolative of Article 14 of the Constitution. In fact, as a very fair and conscientious counsel Mr. Apart from being grossly unethical, it smacks of a deep rootedsense of utter selfishness at the cost of all human values. Such a provision,therefore, is not only manifestly unreasonable and arbitrary but contains thequality of unfairness and exhibits naked despotism and is, therefore, clearlyviolative 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 ofhis arguments he stated that he had been able to persuade the Managementto 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 toregulation 46 (i) (c) in the following manner: " (A) Regulation 46 (i) (c) will be amended so as to substitute for thewords "or on first pregnancy", the words "or on a third pregnancy". (B) There will be a suitably framed Regulation to provide for the aboveand for the following: (I) An air hostess having reason to believe that she is pregnant willintimate this to Air India and will also elect in writing within areasonable time whether or not to continue in service. (II) If such air hostess elects to continue in service on pregnancy, she shalltake leave from service for a period not later than that commencingfrom 90 days after conception and will be entitled to resume serviceonly after confinement (or premature termination of pregnancy) andafter she is certified by the Medical Officer of AIR INDIA as being fitfor resuming her duties as an air hostess after delivery or confinementor prior termination of pregnancy. The said entire period will betreated as leave without pay subject to the air hostess being entitled toroernity leave with pay as in the case of other female employees andprivilege leave under the Regulations. (III) Every such air hostess will submit to an annual medical examination bythe Medical Officer of AIR INDIA for certification of continuedphysical fitness or such other specifications of health and physicalcondition as may. be prescribed by AIR INDIA in this behalf in theinterest of maintenance of efficiency. (IV) It will be clarified that the provisions relating to continuance in serviceon pregnancy will only be available to married women - an unmarriedwoman on first pregnancy will have to retire from service. " THE learned senior counsel relied on paragraphs 105 and 106 at page 1856 which. (IV) It will be clarified that the provisions relating to continuance in serviceon pregnancy will only be available to married women - an unmarriedwoman on first pregnancy will have to retire from service. " 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 withdifficult 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: "the management claims this on the ground that the cabin crew service hasto be attractive to passengers. " 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 ofolder age. This argument seems to us to be based on pure speculation and an artificialunderstanding of the qualities of the fair sex and, if Insult to the institution of oursacred womanhood. Such a morbid approach is totally against our ancient culture andheritage 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 thatyoung women with pleasing manners should be employed so as to act as show pieces inorder to cater to the varied tastes of the passengers when in fact older women withgreater experience and goodwill can look after the comforts of the passengers 'muchbetter than a young woman can. Even if the Corporation had been swayed orgoverned by these considerations, it must immediately banish or efface the same fromits 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 therole of women and a demonstration of male chauvinism and verily involves nay discloses an element of unfavourable bias against the fair sex which is palpablyreasonable 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 (atp. 125);- "all legislative differentiation is not necessarily discriminatory. . . . Discrimination thus involves an element of unfavourable bias. . . The observations of Sastri, C. J. in Kathi Raning Rawat's case, ( AIR 1952 SC 123 ) (supra), may be extracted thus (atp. 125);- "all legislative differentiation is not necessarily discriminatory. . . . Discrimination thus involves an element of unfavourable bias. . . . If such bias isdisclosed. . . . it may well be that the statute will, without more, incur condemnation as violating a specific constitutional prohibition. " THE learned senior counsel then brought to our notice paragraph at page 1859which reads as under :- "regulation 46 (i) (c) provides that AH would retire on attaining the age of35 years or on marriage if it takes place within four years of service. Thelast limb of this provision relating to first pregnancy in the case of AHs hasalready been struck down by us and the remaining sub-clause (c) has to beread with Regulation 47 which provides that the services of any employeemay, at the option of the Managing Director, on the employee being foundmedically fit, be extended by one year beyond the age of retirement, the aggregate period not exceeding two years. This provision applies toemployees who retire at the age of 58. So far as the - AHs are concerned,under the Regulation the discretion is to be exercised b'y the Managingdirector to extend the period upto ten yeats. In other words, the spirit ofthe Regulation is that an AH, if medically fit, is likely to continue up to theage of 45 by yearly extensions given by the Managing Director. Unfortunately, however, the real intention of the makers of the Regulation has notbeen carried out because the Managing Director has been given an uncontrolled, unguided and absolute discretion to extend or not to extend theperiod of retirement in the case of AHs after 35 years. The words 'at theoption' 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 resultin discrimination. The Regulation does not provide any guidelines, rules, orprinciples which may govern the exercise of the discretion by the Managingdirector. Similarly, there is also no provision in the Regulation requiringthe authorities to give reason for refusing to extend the period of retirementof AHs. The provision does not even give any right of appeal to higherauthorities against the order passed by the Managing Director. Similarly, there is also no provision in the Regulation requiringthe authorities to give reason for refusing to extend the period of retirementof AHs. The provision does not even give any right of appeal to higherauthorities against the order passed by the Managing Director. Under theprovision, as it stands, the extension of the retirement of an AH is entirely atthe mercy and sweet-will of the Managing Director. The conferment ofsuch a wide and uncontrolled power on the Managing Director is clearlyviolative of Article 14, as the provision suffers from the vice of excessive delegation of powers. " ( 46 ) I am afraid, that the reliance upon the above case by the learned senior counselis 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 Supremecourt in S. G. Jaisinghani vs. Union of India and others, AIR 1967 S. C. 1427 has quotedwith approval Diey's concept of Rule of Law and, therefore, the principle is wellknown 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 dated24. 12. 1965, Annexure P. 5 in CW. 4545/94. That is a resolution No. 728 passed in an ordinary meeting of the Dellai Development Authority on 24. 12. 1965. The subject matter of the resolution is "change of residential use to the commercial use contrary to themaster plan F-1 (12)/64-WD". The resolution became necessary as the Commissioner,municipal Corporation of Delhi had written to the DDA about the use of residentialpremises to commercial use and the provisions of Section 29 (2) of the D. D. Act readwith 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 prevailedon 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 belaunched. However a decision on this point is bound up with the conditionsobtaining in the city. 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 belaunched. However a decision on this point is bound up with the conditionsobtaining in the city. For instance, it is well known that office accommodation in Delhi, both for Governmental needs and for private commercialhouses, is extremely short and it is because of this shortage, which is certainto continue for quite some time yet, that residential premises have been obtained on rent by establishments wanting to have offices in Delhi. Theprosecution of property owners, who have let out such buildings for officeaccommodation, is thus likely to pose a serious problem and it is, therefore,for consideration whether prosecutions be launched or whether no notice ofuse contrary to the Master Plan be taken until the present situation substantially improves. 5. The Standing Committee, in its meeting held on the 14/12/1965 discussed the matter at length. It was felt that, as office accommodation in Delhi for governmental needs as well as for private commercialhouses is extremely short, it would not be feasible to launch prosecutions against property-owners for putting residential premises to commercial use in contravention of the provisions of the Master Plan, until the presentsituation in this respect substantially improves. It was, however, recomended 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 Developmentact and the Delhi Municipal Corporation Act so as to incorporatethere in suitable provisions which would enable to the concernedpublic authority to appropriate a portion of the benefit accruing toproperty owners as a result of increase in value of the property onaccount of its commercialisation; and (III) draft regulations under the Delhi Development Act should be put upto the Delhi Development Authority immediately for approveal. " THIS can't be pressed into service by the petitioners to legalise their illegal constructions. " THIS can't be pressed into service by the petitioners to legalise their illegal constructions. ( 47 ) WHEN a specific question was put by us about the appeal filed by the plaintiffsin the suits, the learned senior counsel said that an amendment petition was filed bythe plaintiffs in the suit and that was not considered by the learned Single Judge andthe petition for amendment is still pending and the decision in the writ petitions willcover 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 noticeand 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 thepetitioners were conscious of the facts that the construction made by them are unauthorised and, therefore it is, the ancilliary and subsidiary argument on the discretionary power under section 343 was projected. Therefore, in all the writ petitions thefact 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. Infine, the crux of the argument of the learned senior counsel is that DDA alone willhave 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 onlythe Central Government. ( 48 ) THE learned senior counsel then advanced arguments with reference to CW. No. 4882/94 and CW. 429/95. The learned senior counsel REFERRED TO to paras 17 and 18of 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 bymunicipal Corporation of Delhi for constructing residential houses. Allthese "residential houses" are put to commercial use. These "residentialhouses" are no longer the two and half storeyed residential houses sanctioned by respondent No. 1. These originally sanctioned "residentialhouses" are commercial buildings of four/five or more storeys, standing rightalong the road and the Municipal Corporation has not taken any actionagainst them. ACCORDING to the Building Bye-laws (as adopted by the Municipal Corporation of Delhi) residential buildings cannot exceed groundfloor, first andsecond floor and the Barsati floor. The photographs clearly show the floorsof these buildings are far in excess. ACCORDING to the Building Bye-laws (as adopted by the Municipal Corporation of Delhi) residential buildings cannot exceed groundfloor, first andsecond floor and the Barsati floor. The photographs clearly show the floorsof these buildings are far in excess. Even their FARA is in excess of thepermitted FAR under the building bye-laws. The list in paragraph 16 is notexhaustive but illustrative. ( 49 ) THE learned senior counsel REFERRED TO to the works study in the First Master Planand also the fact that how the pattern of land use maintained by the Corporation andthe learned senior counsel submitted the place itself was a business centre. In the. Master Plan in 1962. also the place is referd to as a commercial centre. The learnedsenior counsel REFERRED TO to Annexure J at page 79 of the Bye-laws by the Nabi's Publication. The learned senior counsel REFERRED TO to para 6 page 16 in CW. 429/95 for thepurpose of focussing the point of discrimination. The learned senior counsel REFERRED TOto Additional Distt. Magistrate,jabalpur vs. Shivkant Shakla, AIR 1976 S. C. 1207 and submitted that the High Court has to consider on the basis of natural laws. The learnedsenior counsel REFERRED TO to Article 142 of the Constitution of India, which reads as follows:- "142. (1) The Supreme Court in the exercise of its jurisdiction may passsuch decree or make such order as is necessary for doing complete justice inany cause or matter pending before if, and any decree so passed or order somade shall be enforceable throughout the territory of India in such manneras may be prescribed by or under any law made by Parliament and, untilprovision in that behalf is so made, in such manner as the President may byorder 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 ofindia, have all and every power to make any order for the purpose ofsecuring the attendance of any person, the discovery or production ofany documents, or the investigation or punishment of any contempt ofitself. " THE learned senior counsel said that power of the High Court in Article 226 is aswide as the power of the Supreme Court in Article 142. As a matter of fact, thelearned senior counsel said the power of the High Court under Article 226 is widerthan the power under Article 142. " THE learned senior counsel said that power of the High Court in Article 226 is aswide as the power of the Supreme Court in Article 142. As a matter of fact, thelearned senior counsel said the power of the High Court under Article 226 is widerthan the power under Article 142. The learned senior counsel while winding up hissubmissions 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 tohim sanitation law becomes municipal laws and Sanitation Committee becomesmunicipal Committee. ( 50 ) THE learned counsel Mr. Rawal, appearing for the petitionrs in C. W. 5197/94adopted the arguments of Mr. Lekhi and according to him he was appearing incw. 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 themcd 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 reliedupon 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 vs. Municipal Corporation of the City of Bombay and Others, AIR 1951 S. C. 469 at page 470 and also at page476. He also REFERRED TO to the decision in Algar vs. Middlesex County Council, 1945 (2) All'england Reports 243 at page 250. He also REFERRED TO to West Country Cleaners (Falmouth)Ltd. vs. Saly, 1966 (3) All England Reports page 210 at page 212. He also REFERRED TO to thedecision in Miss Sangeeta vs. Prof. U. N. Singh and others, AIR 1980 Delhi 27 whichdealt with the case of students. He REFERRED TO to the decision Mis. Motilal Padampa Sugarmills Co. Ltd. vs. The State of Uttarpradesh and Others, AIR 1979 S. C. 621 at 651. Healso REFERRED TO to Estopple by Revision by Spencer and Bower 3rd Edn. page 48. Having regard to the principles of estopple, I do not find any difficulty in rejecting thecontentions of the learned senior counsel without any further consideration of thefacts of the case. . ( 51 ) MR. G. L. Sanghi, learned senior counsel advanced argument in CW. 5183/94. page 48. Having regard to the principles of estopple, I do not find any difficulty in rejecting thecontentions of the learned senior counsel without any further consideration of thefacts of the case. . ( 51 ) 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 Roadstated that the agreement to sell was on 5. 6. 1994 in favour of his clients. On 25. 10. 1994there were registered sale deeds and on 13. 11. 1994 there were some sale deeds. Hestated that misuser cannot warrant demolition. He submitted that demolition even if itis 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 isdemolished 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 alsostated that the demolition threat not warranted in law. The learned senior counsel didnot invite our attention to the facts and circumstances under which the petitionerspurchased the property. Arguments, were also advanced by him in C. W. 279/95. Itwas contended that the petitioners could rely upon the doctrine of legitimate expectations. In this connection, paragraph 18 of page 19 of the vmt petition was relied on. He invited our attention to the decision in Food Corporation of India vs. M/s. Kamdhenu Cattle Feed Industries, AIR 1993 S. C. 1601 paragraphs 7 and 8. ( 52 ) ARGUMENTS were also advanced in C. W. 5192/94. It was contended that therewas no notice and for the ground floor sanction was granted for commercial use bythe MCD. ( 53 ) 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 thecorporation. Mr. ( 53 ) 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 thecorporation. 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 laydown policy and on the facts and circumstances of this case, this Court may frame as ascheme as to whether relating to the unauthorised construction. No question of givingany guidelines or laying down policy would arise as the matter is governed by statutoryprovisions. ( 54 ) ON 22. 2. 1995 Mr. Lekhi, learned senior counsel again made few submissionsand brought to our notice the office order issued by the Commissioner, M. C. D. on4. 4. 1986 where priorities for demolitions are given. The office order reads as follows:-"office OF M. C. D. COMMISSIONERTown Hallno. 11/c Delhidated 4. 4. 86office ORDERIn partial modification of office order No. 38/bldg. dated 5. 9. 1977, prioritiesof demolition of unauthorised construction will be as under:first PRIORITY;a) Cases of unauthorised construction of commercial nature such asmarkets, 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 beenreconstructed. c) All cases of commercial as well as residential nature where sanction ofbuilding plans is revoked. d) Unauthorised construction of new colonies on green agriculturalland/private land. e) Unauthorised construction of residential nature which has been dismissed from the court, including the cases of unauthorisedconstruction which affect rights (light, ventilation, passage etc. ofneighbors ). SECOND PRIORITYa) 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 ofresidential and non-residential buildings. THIRD PRIORITYAll other cases which are not covered in priorities mentioned above,2. The inter-se priority for demolition of unauthorised constructions inany of the above categories will be Fixed by the concerned Zonal Engineer (B) himself the guiding principle being that in the samecategory, cases in which demolition orders have been passed lastshould be demolished first. 3. THIRD PRIORITYAll other cases which are not covered in priorities mentioned above,2. The inter-se priority for demolition of unauthorised constructions inany of the above categories will be Fixed by the concerned Zonal Engineer (B) himself the guiding principle being that in the samecategory, cases in which demolition orders have been passed lastshould be demolished first. 3. The cases will be entered in the demolition register sectionwise i. e. thematured cases of the area of each Junior Engineer will be recordsseparately in the demolition register in the order detailed above atthe 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 Additional D. C. /zonal Asstt. Commissioner in charge of the Zone. 5. Daily demolition programme of the Zone will be specificallyprescribed by the Additional D. C. /zonal Assistant Commissioner/zonalengineer (Bidg.) in accordance with the area/je wise prioritiesprescribed in above paras and will not be left to the lower staff. 6. ADCs/zacs/ze (B) shall personally ensure that on an average fourcases per demolition squad are pulled down every day. Monthlyprogress report on demolition will be sent by Addl. DC/zonal Asstt. Commissioner to the Executive Engineer in the proforma alreadycirculated by 7th of each month who will submit a consolidated reportto 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 Buildingdepartment. The Vigilance Department will not keep the files of thebuilding Department for more than 10 days without the approval ofdy. Commissioner. The files concerning unauthorised constructionshould be returned by the Vigilance Department after taking extracts,if necessary, so that the processing of Vigilance cases and actionagainst unauthorised construction go on simultaneously. 8. Site inspection of unauthorised construction cases shall be carried outto the following extent:zac 5% of total cases booked in a month ZE (B) 20% of total casesbooked in a month. 9. It should be noted that ADCs/zacs exclusively responsible for theadministrative control of Bldg. Department including the unauthorisedconstruction and should take necessary disciplinary action against theerring officials at their own level. 10. Sometimes complaints are received from the Zones that trucks are notavailable for demolition purposes. Instructions already exist that zonesmay engage trucks and labour as and when required by them on hire. 11. Department including the unauthorisedconstruction and should take necessary disciplinary action against theerring officials at their own level. 10. Sometimes complaints are received from the Zones that trucks are notavailable for demolition purposes. Instructions already exist that zonesmay engage trucks and labour as and when required by them on hire. 11. ADC/zac/ze (B) will chalk out programme of demolition insuch away that each J. E. demolish unauthorised construction of 2nd and 3rdpriorities also at least once a month each, so that unauthorisedconstruction 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"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 an arbitrary exercise of powers by the authorities and whether the buildings in question would come under a priority category would again be decided arbitrarily bythe authorities. The learned senior counsel relied upon a few passages in Delhimunicipal Digest by Mr. Verma which do not render any assistance for deciding thedispute in this case. ( 55 ) THE learned senior counsel Mr. Arun Jaitley appearing for MCD formulatedhis 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 areguilty of civil contempt because they claim rights under sale deeds executed after2. 11. 1994 when the learned Single Judge of this Court restrained the owners fromcreating any third party interest in the properties; (iii) in respect of ten properties inquestion 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 inthe earlier cases were not disclosed and all the unauthorised constructions were carried out after obtaining stay orders from the Original Side of this Court from21. 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 inviolation of several laws governing the construction of buildings and they are againstpublic interest and indirectly they seek to regularise those violations by invoking thejurisdiction of this Court. 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 inviolation of several laws governing the construction of buildings and they are againstpublic interest and indirectly they seek to regularise those violations by invoking thejurisdiction of this Court. The details of the suits filed and the writ petitions filed need not be elaborately referred to. ( 56 ) THE learned senior counsel submitted that while filing civil suits representations were made that the constructions have been made in accordance with thesanctioned plans and also the Delhi Municipal Corporation Act and the building bye-laws but actual facts were suppressed. Later on, when the MCD entered appearancein the suit facts were completely clarified and placed before the Court and the Courtvacated the orders of injunctions passed earlier. It is further contended that havingfailed before the Civil Court deliberately without mentioning those facts the personsclaiming rights through the plaintiffs in the civil suits had filed writ petitions on falserepresentations and, therefore, inasmuch as the petitioners based their claim on falsehood and fraud, they are not entitled to any indulgence from this Court. The learnedsenior counsel relied upon the following cases:-1. 1917 (1) K. B. 486 (C. A.) at page 504, The King vs. The Generalcommissioners for the Purposes of the Income Tax Acts for the Districtof Kensington. 2. AIR 1940 Lahore page 69, Basheshar Nath and others vs. Municipalcommittee, Moga. 3. 1978 (2) SCC 209 , Udai Chand vs. Shanker Lal and others. 4. AIR 1978 Punjab and Haryana 326, Tetar Mandal and others vs. Executiveofficer and others. 5. 36 (1988) DLT 304, Anand Swamp vs. Municipal Corporation of Delhi. 6. AIR 1992 Delhi 197, M/s. Seemax Construction (P) Ltd. vs. State Bank of India and another. 7. 1994 (30) D. R. J. 153, TA. George and another vs. DDA and others. 8. AIR 1994 S. C. 853, S. P. Chengalvaraya Naidu (dead) by L. Rs. vs. Jagannath (dead) by L. Rs. and others. ( 57 ) IN the first case referred to above, the Court of Appeal in England decidedabout the conduct of the person for the grant of relief of injunction. George and another vs. DDA and others. 8. AIR 1994 S. C. 853, S. P. Chengalvaraya Naidu (dead) by L. Rs. vs. Jagannath (dead) by L. Rs. and others. ( 57 ) IN the first case referred to above, the Court of Appeal in England decidedabout 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 exparte application has been made to this Court for a rule nisi or otherprocess, if the Court comes to the conclusion that the affidavit in support ofthe application was not candid and did not fairly state the facts, but statedthem in such a way as to mislead the Court as to the true facts, the Courtought, for its own protection and to prevent an abuse of its process, torefuse to proceed any further with the examination of the merits. This is apower inherent in the Court, but one which should only be used in caseswhich 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 thefacts 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 thecourt when it reads the affidavit and knows the true facts. But if the resultof this examination and hearing is to leave no doubt that the Court has beendeceived, then it will refuse to hear any thing further from the applicant in aproceeding which has only been set in motion by means of a misleading affidavit. "lord Cozens-Hardy M. R. observed at page 505 as under:-"that is merely one and perhaps rather a weighty authority in favour of thegeneral proposition which I think has been established, that on an ex parteapplication uberrima fides is required, and unless that can be established, ifthere is anything like deception practised on the Court, the Court ought notto go into the merits of the case, but simply say "we will not listen to yourapplication because of what you have done. " ( 58 ) IN the second case referred to above, Mr. " ( 58 ) IN the second case referred to above, Mr. Justice Din Mohammad of thelahore High Court observed at page 70 as follows:-"under Sec. 56 (j), Specific Relief Act, an injunction cannot be grantedwhen the conduct of the applicant or his agents has been such as to disen title him to the assistance of the Court. This provision has been interpretedin various decisions and they all unanimously lay down that be who seeksequity must do equity and, unless the plaintiff comes into Court with cleanhands, no relief should be granted to him by way of injunction. In Rangammal v. Venkatachari, (1895) 18 Mad 378, the following remarks of Storywere quoted with approval:the Court cannot but leave the guilty plaintiff to the consequences of hisown inequity and decline to assist him to escape from the toils which he hadstudiously prepared to entangle others. In Seeni Chettiar v. Santhanathan Chettiar, (1896)20 Mad 58 at p. 67, it was observed:that rule (Sec. 56, cl. (j), Specific Relief Act) rests on the maxim that hewho 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 Courtthat his own acts and dealings in the matter have been fair and honest andfree from any taint of fraud or illegality, and that if, in his dealings with theperson against whom he seeks relief or with third parties, he has acted in anunfair or inequitable manner, he cannot have relief. The facts as set out above clearly indicate that the plaintiffs inveigled thecommittee into passing a resolution which is now being attacked as ultravires. The Committee had rejected the application for sanction in unequivocal terms more than a year before the resolution of 8th December waspassed. In fact, even a suit had been instituted to contest the notice issuedby the Municipal Committee. The attitude of the Committee changed onlywhen the plaintiffs made an offer of Rs. 3000 to Lala Chandu Lal for beingallowed 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 theplaintiffs made an oral offer of Rs. 3000 on behalf of the plaintiffs. The attitude of the Committee changed onlywhen the plaintiffs made an offer of Rs. 3000 to Lala Chandu Lal for beingallowed 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 theplaintiffs made an oral offer of Rs. 3000 on behalf of the plaintiffs. Thecommittee 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 plaintiffs treat this offer as a permission granted by the Committeeunder S. 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 otherwords, they want to put up the construction without any payment on theground that the Committee had no authority to demand that payment. Thisis rank dishonestly. " ( 59 ) 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 question of law falls to be determined or where it appears tothe Court that interference by this Court is necessary to remedy serious injustice. A party who approaches this Court invoking the exercise of thisoverriding 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 Ofuntrue statements or by withholding true information which would have abearing on the question of exercise of the discretion, the Court would bejustified in refusing to exercise the discretion or if the discretion has beenexercised in revoking the leave to appeal granted even at the time of hearingof the appeal. " ( 60 ) IN the 4th case, referred to above, the Punjab and Haryana High Court followingthe decision of the Court of Appeal quoted from the decision of the Full Bench of theallahabad High Court, which is in the following terms :-"a person obtaining an ex parte order or a rule nisi by means of a petitionfor exercise of the extraordinary powers under Art. 226 of the Constitutionmust come with clean hands, must not suppress any relevant facts from thecourt, must refrain from making misleading statements and from giving incorrect information to the Court. Courts, for their own protection, shouldinsist that persons invoking these extraordinary powers should not attempt,in any manner, to misuse this valuable right by obtaining ex parte orders bysuppression, misrepresentation or misstatement or facts. Applying thisprinciple to the present case, we feel that, in this case, the petitioner Company has disentitled it self to ask for a writ of prohibition by material suppression, misrepresentations and misleading statements which have beenfound by us above. "ultimately, the Punjab and Haryana High Court said "agreeing with the longline 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. " . ( 61 ) 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 withclean hands if he seeks an injunction under Order 39 Rules 1 and 2. In thepresent 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 timeand again misrepresented the true facts in Court. Such deliberate attempton the part of the plaintiff to mislead the Court may or may not amount to acontempt but will certainly, to my mind, disentitle the plaintiff to any interim relief. On this ground alone, therefore, the plaintiff is not entitled to theinjunction prayed for. " ( 62 ) IN the 6th case, referred to above, my Lord Mr. Such deliberate attempton the part of the plaintiff to mislead the Court may or may not amount to acontempt but will certainly, to my mind, disentitle the plaintiff to any interim relief. On this ground alone, therefore, the plaintiff is not entitled to theinjunction prayed for. " ( 62 ) IN the 6th case, referred to above, my Lord Mr. Justice Y. K. Sabharwal waspleased to consider a case under similar circumstances and was pleased to observe asunder:-"the suppression of material fact by itself is a sufficient ground to declinethe discretionary relief of injunction. A party seeking discretionary reliefhas to approach the court with clean hands and is required to disclose allmaterial facts which may, one way or the other, affect the decision. A person deliberately concealing material facts from court is not entitled to anydiscretionary relief. The court can refuse to hear such person on merits. Aperson seeking relief of injunction is required to make honest disclosure ofall relevant statements of facts otherwise it would amount to an abuse ofthe 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 forthe District of Kensington, 1917 (1) King's Bench Division 486 where thecourt refused a writ of prohibition without going into the merits because ofsuppression of material facts by the applicant. The legal position in ourcountry is also no different. (See: Charanji Lal v. Financial Commissioner,haryana, Chandigarh, AIR 1978 Punjab and Haryana 326 (FB ). Referencemay also be made to a decision of the Supreme Court in Udai Chand v. Shankar Lal, AIR 1978 SC 265: (1978) 2 SCC 209 . In the said decision thesupreme Court revoked the order granting special leave and held that therewas a misstatement of material fact and that amounted to serious misrepresentation. The principles applicable are same whether it is a case ofmisstatement of a material fact or suppression of material fact. "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 orthe other obtain interim orders without full disclosure of the earlier judicialproceedings and without full disclosure of all material facts is on constantincrease and it is necessary for due administration of justice to reiterate thelegal proposition that such a person may be refused a hearing on merits. " ( 63 ) 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 thepart of the applicant. This being the accepted legal position right from thedays of King's Bench Division Judgment in The King v. The General Commissioners for the purposes of the Income Tax Acts for the District ofkensington 1917 (1) KB 486 the learned Additional Judge legally could andrightly did refuse to grant to the appellants the relief of temporary injunction. " ( 64 ) IN the 8th case, referred to above, the Supreme Court observed at page 855 asunder :-'the courts of law are meant for imparting justice between the parties. Onewho comes to the court, must come with clean hands. We are constrainedto say that more often than not, process of the court is being abused. Property-grabbers, tax evaders, bank-loan- dodgers and other unscrupulouspersons from all walks of life find the court process a convenient lever toretain 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. " ( 65 ) THERE is considerable force in the submissions made by the learned seniorcounsel and the writ petitions deserve to be dismissed on this score alone. ( 66 ) BUT having regard to the large canvas of arguments, and with due deference tothe learned senior counsel who argued for various writ petitioners, we dealt with allthe arguments submitted by the learned counsel. ( 67 ) 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 insuits categorically imposed an embargo that the plaintiffs will neither induct anyonenor create third party interest in the properties in question. This Court, as a matter offact, had given liberty to the MCD to give public notice in this behalf. Pursuant to thedirections issued by this Court, a public notice, as a matter of fact, was issued bymcd on 9. 11. 1994 warning the public that acquiring any interest in the properties inquestion they will be doing so at their own risks. Pursuant to thedirections issued by this Court, a public notice, as a matter of fact, was issued bymcd on 9. 11. 1994 warning the public that acquiring any interest in the properties inquestion they will be doing so at their own risks. In flagrant disobedience to the orders passed by this Court, the plaintiffs in those suits had temerity to effect transfersin favour of third parties. The details of the writ petitions in which sale transactionshad been entered into, after the passing of the orders of this Court on 2. 11. 1994 by thehon'ble Ms. Justice Usha Mehra are as follows:-1. CW. No. 5213/94 Ritesh Industries and another vs. MCD and others. Sale deed executed on 2. 12. 94 (one month after the passing of theorder ). 2. C. W. 5186/94 Phoenix International and others vs. UOI and others. Sale deed dated 8. 11. 94. 3. C. W. 5192/94 Sunil Narula vs. UOI and others. Sale deed dated 5. 12. 1994. 4. C. W. 5183/94 Jindal Drilling and Industries and others vs. UOI andothers. Sale deed dated 13. 11. 1994. 5. C. W. 5205/94 M/s. Tiruvandagam Investment P. Ltd. vs. UOI andothers. Sale deed on 8. 11. 1994. The learned senior counsel contended that the parties are guilty of civil contemptand they cannot rely upon the sale deeds and then seek to protect a case that theywere 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 vs. Hodkinson. 2. 45 (1975) Company Cases 444 at page 448, Century Flour Mills Ltd. andanother vs. S. Suppiah and another. 3. 1988 (2) SCC602, A. R. Antulay vs. R. S. Nayak and another. 4. Judgment dated 25. 1. 1995 in Special Leave Petition No. 21000193 DDA vs. Skippersconstruction and another (IT 1995 (2) S. C.) 391. 5. 1974 (3) All England Reports 217. 6. AIR 1977 Allahabad 83 (Referred to 1974 (3) All England Reports ). 3. 1988 (2) SCC602, A. R. Antulay vs. R. S. Nayak and another. 4. Judgment dated 25. 1. 1995 in Special Leave Petition No. 21000193 DDA vs. Skippersconstruction and another (IT 1995 (2) S. C.) 391. 5. 1974 (3) All England Reports 217. 6. AIR 1977 Allahabad 83 (Referred to 1974 (3) All England Reports ). ( 68 ) IN the first case, referred to above, the Court of Appeal in England recordingthe 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 inrespect of, whom an order is made by a court of competent jurisdiction toobey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to caseswhere the person affected by an order believes it to be irregular or evenvoid. "denning, L. J. observed as follows :-"the court would only refuse to hear a party to a cause when the contemptimpeded 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 effectivemeans of securing his compliance. The court might then in its discretionrefuse to hear him until the impediment was removed or good reason wasshown why it should not be removed. " ( 69 ) 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, somethinghas been done in disobedience, it will be the duty of the court as a policy toset the wrong right and not allow the perpetuation of the wrong doing. Inour view, the inherent power will not only be available in such a case, but itis bound to be exercised in that manner in the interests of justice. " ( 70 ) IN the third case, referred to above, it was observed by the Supreme Court thatthe wrong committed by anybody must be remedied by the Courts. ( 71 ) IN the 4th case cited above, the Supreme Court had observed that anybody whocommits wrongs against society should not be left unpunished. " ( 70 ) IN the third case, referred to above, it was observed by the Supreme Court thatthe wrong committed by anybody must be remedied by the Courts. ( 71 ) IN the 4th case cited above, the Supreme Court had observed that anybody whocommits wrongs against society should not be left unpunished. ( 72 ) HERE in the instant case, the petitioners, who attempted to put up buildingwithout obtaining sanction from the concerned authorities, cannot be heard to contend that they have not committed any wrong and the MCD has no jurisdiction. ( 73 ) 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 dutyof a Judge is to suppress force and fraud'. As part of this it is the duty of ajudge to denounce wrong-doing when it is established before him. Hespeaks for all law-abiding citizens. His words uphold the opinion of thegood. And shake the confidence of the wicked. By condemning wrongdoing, he reinforces the moral sanction on which law and order so muchdepend. " ( 74 ) IN the 6th case, referred to above, a Division Bench of the Allahabad Highcourt followed the principles laid down by Lord Justice Denning. ( 75 ) 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 tothe 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 deventurism 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. AIR 1980 S. C. 946, The Advocate General, State of Bihar vs. M/s. Madhya Pradesh Khair Industries and another. 2. 1994 (6) SCC 322 , Bloom Dekor Limited vs. Subhash Himatlal Desaiand others. 3. 1995 (1) Apex Decisions (SC) 229. 4. Order of the Supreme Court dated 8,2. 1995 in Special Leave Petition (C) No. 21000/93;dda vs. Skipper Constructions and another, reported in J. T. 1995 (2)S. C. 391. ( 76 ) IN the first case, referred to above, the Supreme Court had occasion to dealwith a situation where an abuse of process of court amounted to contempt. 4. Order of the Supreme Court dated 8,2. 1995 in Special Leave Petition (C) No. 21000/93;dda vs. Skipper Constructions and another, reported in J. T. 1995 (2)S. C. 391. ( 76 ) IN the first case, referred to above, the Supreme Court had occasion to dealwith a situation where an abuse of process of court amounted to contempt. A personin 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 underwhich the person concerned abused to the process of court. Their Lordships quotingvery 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 manifsestationagainst obstruction and outrage". Per Frank Further, J. in Offutt v. U. S. (1954) 348 US 11. "the law should not be seen to sit by limply, while those who defy it go free,and those who seek its protection lose hope". Pser Judge, Curtis-Raleighquoted in Jennison v. Baker (1972) 1 All ER 997 at p. 1006. "their Lordships punished the person for contempt. As pointed out by the Supremecourt, the petitioners were playing a game by filing these writ petitions when the applications for injunctions were dismissed by civil courts. ( 77 ) IN the cases referred to as items 2 and 3 above, Supreme Court reiterated theprinciples stated earlier. In the case referred to as 4th item also, the Supreme Courtput down strongly the attitude of a building contractor. ( 78 ) THE next point that was argued by the learned senior counsel was that thepetitioners had violated the law and, therefore, they cannot seek any relief in thiscourt 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 bythe petitioners. But what is argued on behalf of the petitioners is that a discretion thatis vested in the Commissioner under Section 343 because the word used is 'may' inthat section and, therefore, the Commissioner cannot pick and choose for the purposeof demolishing the buildings constructed in violation of the law. In other words, theword 'may' does not mean shall. But what is argued on behalf of the petitioners is that a discretion thatis vested in the Commissioner under Section 343 because the word used is 'may' inthat section and, therefore, the Commissioner cannot pick and choose for the purposeof demolishing the buildings constructed in violation of the law. In other words, theword 'may' does not mean shall. The learned counsel brought to the notice that inrahul vs. MCD, CM (M) 59/93 where it is held that merely because an unauthorisedconstruction is transferred and goes into many hands, the basic character of the natureof the construction would not change or the unauthorised construction would not become an authorised one. About the notice not having been served upon thepetitioners, it was contended by the learned senior counsel for the MCD that thenotice under section 343 is to be served only on a person at whose instance the construction has been made. He relied on the decision reported in Ram Narain vs. Municipal Corporation of Delhi, 1991 (44) DLT page 441. Touching on the scheme ofthe law pertaining to the construction of the buildings in the city, the learned seniorcounsel 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 Developmentplan. As per Section 14 of that Act, that after coming into force of the plans no landshall 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 Municipalcorporation permit anybody to use the land contrary to the plans. Section 53 (2) of thed. D. A. Act provides that the Act and the Rules framed there under shall prevail overevery other legislation to the contrary. Therefore, there is a clear mandate to theauthorities to conform to the law. Looking at the scheme of things and Section 343 ofthe 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 theauthority for enforcing the law. It cannot be contended that the building bye-laws andthe Regulations and Rules framed thereunder are not in public interest. of a public duty and he has to keep in mind the public interest and he is theauthority for enforcing the law. It cannot be contended that the building bye-laws andthe 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 thecommissioner, 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. AIR 1974 S. C. 2177-at page 2181, K. Ramadas Shenoy v. The Chiefofficers Town Municipal Council Udipi and others. 3. (1980) I Supreme Court Cases 258 at page 263, State (Delhi Admn.) vs. I. K. Nangia and another. 4. 1981 (1) Andhra Weekly Reports page 166. 5. AIR 1984 Kerala 170 at page 176, P. Saina and others vs. Kondseri andothers. 6. (1991) 3 SCC 341 at page 345, Pratibha Cooperative Housing Societyltd. and another vs. State of Maharashtra and others. 7. AIR 1991 S. C. 1902 at page 1913, Bangalore Medical Trust vs. B. S. Muddappa and others. 8. 1992 SCC 426 at page 434, Sanjay Place Group Housing Associationand others vs. Agra Development Authority and others. ( 79 ) MEETING the submissions of the learned counsel for the petitioners with reference to the decision of the Supreme Court in Corporation of Calcutta vs. Mulchandagarwala, AIR 1956 S. C. 110, the learned counsel submitted that even the judgmentwould stipulate that the word 'may' would indicate only 'shall' and that is easily distinguishable on the merits. ( 79 ) MEETING the submissions of the learned counsel for the petitioners with reference to the decision of the Supreme Court in Corporation of Calcutta vs. Mulchandagarwala, AIR 1956 S. C. 110, the learned counsel submitted that even the judgmentwould stipulate that the word 'may' would indicate only 'shall' and that is easily distinguishable on the merits. ( 80 ) IN controverting the arguments on behalf of the petitioners that there areseveral 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 actionof the authorities come within the mischief of the Article 14 of the Constitution ofindia, the learned senior counsel submitted that such an argument cannot at all becountenanced 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 theconstitution 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. Ifthe 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 aparticular 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 underthe provisions of the Constitution. It is really disturbing that the law breakers shouldwith impunity try to take umbrage under cover of discrimination calling in aid, thepervasive 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 tothe view that such persons, as the petitioners, would be entitled to a hearing. Underthe constitutional set up, as declared by Chief Justice Marshall of the United States ofsupreme Court the only organ of the State which can have effective control over theenforcement of laws is the Court and in that sphere the Court and the Court aloneshould have a final say. Underthe constitutional set up, as declared by Chief Justice Marshall of the United States ofsupreme Court the only organ of the State which can have effective control over theenforcement of laws is the Court and in that sphere the Court and the Court aloneshould have a final say. When we are governed by rule of law, in my view, no Courtwill be justified in entertaining any argument on behalf of the petitioners. ( 81 ) LEARNED counsel for the MCD brought to our notice the following decisions :-1. 1975 Labour and Industrial Cases 1624. 2. 1987 (1) Karnataka Law Journal 163. 3. 1994 (28) D. R. J. 563. 4. 1994 (1) Apex Decision 1002 at page 1009. 5. 1995 (1) Apex Decision (S. C.) 265. ( 82 ) IN the case first referred to above. Full Bench of this Court observed in para41 in the following terms:-"it is well settled that Article 14 has no application where action is taken bythe authorities to remove one evil and merely because no action is taken toremove another alleged evil it cannot be said that evil which is sought to beremoved is hit by the provision of Article 14 of the Constitution. It may bethat two persons may commit different offences but only one person isprosecuted by the authorities. The one who is prosecuted cannot complainof violation of Article 14 merely because the other one is not prosecuted. Article 14 has no application in such cases. " ( 83 ) IN the second case referred to above, the Karnataka High Court expressed thisview in very clear terms in the following manner :-"in this petition the petitioner has assailed the proposed action of therespondent-State of Karnataka and its officers in the Excise Departmentdirecting re-auction of bids which had once been confirmed in favour of thepetitioner on the sole ground that respondents 22 to 35 are also defaultersbut whose bids at the actions, confirmed in their favour have not been subjected to re-auction, and therefore, the right of the petitioner for equaltreatment assured under Article 14 of the Constitution has not been metedout to it (Form of Parnters ). It is difficult to envisage discrimination when the law is given effect to. If thechallenge is to the law on the ground that it discriminates then that could beexamined. It is difficult to envisage discrimination when the law is given effect to. If thechallenge is to the law on the ground that it discriminates then that could beexamined. But, in the enforcement of the law if there has been discrimination, it cannot be complained of by one who admittedly stands disqualifiedby the law. Reliance in this behalf placed by Sri Narasimha Murthy, on the decision ofthe Supreme Court in Vishundas Hundumal etc. v. The State of Madhyapradesh and others (A. I. R. 1981 S. C. 1636) is really not of much assistanceto support the claim made by the petitioner. It was conceded there that the Nationalisation of certain routes for the exclusive operation of the Stateunder taking 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 verynationalised routes. That was stated to be on account of inadvertance orover-sight on the part of the Government agency. In that circumstance, thesupreme Court observed that denial of equal protection flowed from Stateaction and had the direct impact on the fundamental rights of thepetitioners therein. Therefore, the Supreme Court made what theydescribed as the constructive approach by eliminating the discrimination bypermitting the petitioners also to operate on those nationalised routes. " ( 84 ) IN the third case referred to above, this Court dealt with the case of a studentwho failed to pass the examination held for the XI standard to become eligible tostudy in the XII standard claimed transfer certificate which would entitle him to getadmission in XII standard in some other institutions. His case was that in respect ofsome other students the management had issued transfer certificate to that effect. The management explained the circumstances under which the transfer certificateenabling the students to get admission in XII standard in other schools and themanagement 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 thepolicy of issuing transfer certificates or giving promotions to higher class asan exception merely on 'humanitarian consideration' inspite of the performance of the student not justifying promotion to higher class. Such policyhas been discontinued. The petitioner has not been able to cite any instancewhere inspite of having failed, a student might have been promoted tohigher class. Such policyhas been discontinued. The petitioner has not been able to cite any instancewhere inspite of having failed, a student might have been promoted tohigher class. We can not also approve the action of the respondent institution issuing transfer certificates entitling the students in two exceptionalcases to admissioa in higher class in other institutions. We are not satisfiedthat 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 byissuing a writ commanding the respondent institution to issue similar transfer certificate to the petitioner. Suffice it to refer to a Division Benchdecision of this Court in the Chief Commissioner and another vs. Mrs. Kittypuri, AIR 1973 Delhi- wherein it has been held that a denial of illegal favourcannot amount to discriminatory treatment violative of principle of equalityarticle 14 of the Constitution. We may also refer to a recent decision of the Supreme Court in Madras Fertilizersltd. vs. Assistant Collector of Central Excise [jt 1994 (1) SC 150] wherein their Lordshipshave reiterated their own view in Coromandal Fertilizers Ltd. vs. Union of India andothers, [1958 (1)SCR523] as under :-"a wrong decision in favour of any particular party does not entitle anyother party to claim the benefit on the basis of the wrong decision. " ( 85 ) IN the 4th case referred to above, this Court dealt with a case where thepetitioner claimed a plot for industrial purposes on concessional rates, when as perthe 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, therespondent DDA had allotted plots on concessional rates, and therefore, DDA cannothave any objection to allot a plot to him on concessional rates. Deciding the matterhis Lordship Mr. Bhat observed as under :-"on these pleadings, it is not possible for me to hold definitely thatpetitioner has been discriminated. Further, in case, a few individuals or individual units were wrongly favoured by the 1st respondent, this court cannotcompel the 1st respondent to repeat the same wrong doing in favour of thepetitioner by recourse to Article 14 of the Constitution of India. Therecannot be a constitutional right to be illegally favoured only because, a fewothers were so favoured. Further, in case, a few individuals or individual units were wrongly favoured by the 1st respondent, this court cannotcompel the 1st respondent to repeat the same wrong doing in favour of thepetitioner by recourse to Article 14 of the Constitution of India. Therecannot be a constitutional right to be illegally favoured only because, a fewothers were so favoured. Petitioner shall have to establish that under therelevant statutory provisions or under the law governing the allotment of industrial sites by the 1st, he is eligible for allotment at a concessional rate. The relevant principle is stated in Narain Dass and others vs. Improvementtrust, Amritsar and another, AIR 1972 SC 865 at page 871 :-"equal laws have to be applied to all persons in the same situation and theremust be no discrimination between one person and another if as regards thesubject matter of the legislation their position is substantially the same. Section 56 does not suffer from any vice offending Article 14 and indeed it wasnot so contended by Shri Gupte. What was contended by him was thatwhile administering Section 56 there has been hostile discrimination againstthe appellants because lands under orchards belonging to persons similarlyplaced 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 havefailed to bring their case within Section 56 of the Act then merely becausesome other party has erroneously succeeded in getting his lands exemptedostensibly under that Section that by itself would not clothe the present appellants with a right to secure exemption for their lands. The rule ofequality before the law or of the equal protection of the laws under Article14 cannot be invoked in such a case. " ( 86 ) THE learned counsel then argued on the question relating to the schemeframed under the United Provinces Town Improvement Act, 1919 and the same beingin existence has contended for by the petitioners. The learned counsel submitted thatno document has been filed to show about the existence of any scheme under thatact. As already noticed, the agreement between the Delhi Improvement Trust andparty referred to in CW. 4958/94 is of no help. The learned counsel submitted thatno document has been filed to show about the existence of any scheme under thatact. As already noticed, the agreement between the Delhi Improvement Trust andparty referred to in CW. 4958/94 is of no help. Further, the learned counsel submittedassuming that there was any scheme that cannot be said to be in force after the cominginto force of the Act in 1957. The learned counsel brought to our notice the severalprovisions of the Acts. ( 87 ) REBUTTING the arguments on behalf of the petitioners under Section 60 of thedelhi Development Act, 1957, which has already been extracted above, the learnedcounsel submitted what are the rights saved or specifically mentioned in the provisionsitself 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) SCC436 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 (1) SCR 323 . 9. AIR 1972 S. C. 1826. ( 88 ) IN view of the fact that the proposition of law is very clear, we feel that it is notnecessary to refer to the facts in each of these cases. ( 89 ) THE learned counsel asserted that when an area is specifically developed as adevelopment area DDA comes into the picture on a reading of the provisions ofd. D. A. Act and ofm. C. D. Act, 1957. ( 90 ) 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 notipso facto become a developed area. He referred to Section 2-E of the D. D. Act as tothe definition of the developed area. Because a land is a zonal land the municipalfunctions and powers cannot be assumed by the DDA. Nazul land and developedarea are two distinct things under the D. D. A. Act, 1957. ( 91 ) ABOUT the argument that under the lease deed, which has already been extracted, permission is to be obtained from the lessor namely Delhi Improvement Trustwould not make M. C. D. Act inapplicable to the area. Nazul land and developedarea are two distinct things under the D. D. A. Act, 1957. ( 91 ) ABOUT the argument that under the lease deed, which has already been extracted, permission is to be obtained from the lessor namely Delhi Improvement Trustwould not make M. C. D. Act inapplicable to the area. The obtaining permission fromthe lessor is different from obtaining sanction from MCD. The learned counselspecifically stated that the reliance placed by the petitioners upon Indian Expresscase, AIR 1986 (1) SCC 133 (supra) is of no avail to the petitioners. ( 92 ) 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 ofestoppel when the petitioners are guilty of violation of law, ( 93 ) CONTROVERTING the argument on the point of legitimate expectations, thelearned counsel submitted that the doctrine of legitimate expectations cannot at all bepressed into service by the petitioners. The scope and ambit of doctrine of legitimateexpectations has been clearly laid down by the Supreme Court in Union of India vs. Hindustan Development Corporation, J. T. 1993 (1) S. C. 94. ( 94 ) YET another argument advanced by the petitioners that an undertaking is takenfrom the owners of the properties at the time of sanctioning of plans and it speaks ofmisuse charges and, therefore, once there is an undertaking taken by the authoritiesthey can only impose penalty for misuse charges and they are precluded from takingany action from sealing or demolition. Learned counsel submitted that a reading ofthe undertaking itself would expose the case of the petitioners. In the undertaking, itis clearly mentioned that the 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 asunder:-2. . . . . . . . . . . . r/o. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . which expression shall mean and include all his/her heirs, executors, administrators legal representative and assigns do hereby undertake asunder:-2. I am the owner of House No. . . . . . . . . . . . . . . . . . . . . . a portion of which is underthe 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 forfunning a. which has been treated as a mis-use of the said premises bythe MCD as violation of section 347 of DMC Act. The MCD hasconsented to recover the mis-use charges temporarily on year to yearbasis with the specific condition that I shall continue to pay onemonth's rent annually by way of penalty till such time the mis-use ofthe premises is removed. I fully understand this acceptance of thepenalty by the MCD, however, does not amount to the regularisationof the mis-use of the premises. I shall see that the mis-use of theproperty is removed as early as possible without any lapse on my partand I shall continue to pay the aforesaid penalty till the mis-use iscompletely removed. 5. This undertaking is binding and irrevocable. I undertake to abide byterms and conditions contained in these presents and furtherundertake that the MCD or any other appropriate authority shall havepower to get the mis-use discontinued in such manner as they deem fitand proper. In witness where of I the above named have affixed by hands on thesepresent after under-standing the contents thereof. " ( 95 ) REGARDING the petition for impleadment of Mr. Rupinder Singh, we did notentertain the petition and, therefore, it does not require any consideration. In witness where of I the above named have affixed by hands on thesepresent after under-standing the contents thereof. " ( 95 ) REGARDING the petition for impleadment of Mr. Rupinder Singh, we did notentertain the petition and, therefore, it does not require any consideration. ( 96 ) THE learned counsel while meeting the submission on behalf of the petitioners,with reference to the resolution dated 28/12/1965, it was submitted that ithas absolutely no relevance and that resolution cannot be a charter for a perpetualviolation of the municipal laws. ( 97 ) THE argument about the comparison of some multi-storeyed commercial flatsin some residential areas is not at all tenable. Because it would depend upon themaster 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 withthe Rules. If there is any building put up without the sanction and permission fromthe authorities it would be demolished. The learned counsel submitted that it is forthe municipal authorities keeping in view the public interest and for maintaining healthy environment to devise means for the performance of the plans. He referred tovol. 82 American Jurisprudence 2nd Edition page 5711. He also referred to Vol. 82american Jurisprudence page 431 and submitted that one of the established principlesof law is that the legislative judgment of the zoning authorities should not be annulledby 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 theparameters delineated by the constitution. The Court will not substitute its judgmentfor that of the experts in the field. ( 98 ) ONE thing which is very clear is that the petitioners in the writ petitions areclaiming rights through the owners who had approached the Civil Courts and failed loget 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 theconstructions made by the petitioners and the parties to the civil litigation werewithout proper sanction or permission from the authorities and they are in violation ofthe rules and regulations and bye- laws. Mr. Another important fact about which there is no dispute and there cannot be any dispute is that theconstructions made by the petitioners and the parties to the civil litigation werewithout proper sanction or permission from the authorities and they are in violation ofthe rules and regulations and bye- laws. Mr. P. N. Lekhi, learned senior counsel madea categorical statement, as we had already noticed, while arguing the matter, that he isnot 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 whichthe buildings are situated to take action for the alleged violations of the municipallaws. Therefore, the factual matrix need not be considered any more to deal with thepoints of law raised by the learned counsel for the parties. In C. W. 4545/94, thepetitioner 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. 12. 12. 1955. National Investment Trust Ltd. transferred leasehold rights andsuper-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 thefollowing persons for a total consideration of Rs. 2. 05 crores :-1. Hemant Kumar S/o Sh. Krishan Kumar2. Pawan Kumar S/o Sh. Gopal Chand3. Kamal kumar Taneja S/o Sh. R. C. Taneja4. M/s. D. N. Taneja HUF5. Smt. Salra Taneja w/o Sh. K. K. Taneja6. Smt. Veena Taneja w/o Sh. D. N. Taneja7. Ms. Anjali Rani d/o Sb. Devki Nandan8. Ms. Anjali Rani d/o Sh. Devkinandanthe petitioner filed CM. 817/95 for the production of office order dated11. 1. 1995 by Govt. of India and office order dated 12. 1. 1995 by MCD. ( 99 ) CM. 827/95 was filed for an amendment of the petition. Mr. Rupinder Singhsought to implead himself as a party on the ground of public interest litigation incm. 908/95, which was dismissed as withdrawn on 20/02/1995. 1. 1995 by Govt. of India and office order dated 12. 1. 1995 by MCD. ( 99 ) CM. 827/95 was filed for an amendment of the petition. Mr. Rupinder Singhsought to implead himself as a party on the ground of public interest litigation incm. 908/95, which was dismissed as withdrawn on 20/02/1995. Another CM--/95 was filed on 21/02/1995 for the production of Misibundh Register by 'themunicipal Corporation of Delhi. ( 100 ) THIS learned counsel for the MCD in his written arguments in Annexures A andb 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 constructionshave been made after ad-interim orders passed by this Court and in spite of publicnotice issued by the MCD on 9. 11. 1994. . ( 101 ) WE have carefully considered the facts and circumstances and have analysedthe cases cited before us and we have also considered the relevant provisions underthe D. D. A. Act and D. M. C. Act. The point put forth at the forefront is the want ofjurisdiction on the part of MCD to take action. The principal contention is that thelands concerned in these cases are nazul lands dealt with by the Delhi Improvementtrust. The successor-in-interest of the Delhi Improvement Trust is Delhi Development Authority and, therefore, the municipal functions would vest with the Delhidevelopment Authority and if at all there is any violation the authority that could takeaction or issue notice to the owners is the authority under the D. D. A. Act and themcd has no jurisdiction to take any action in respect of the violations alleged. Asstated above, the learned counsel dealt with elaborately about the concept of nazulland 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 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 landsthe Govt. of India placed various Nazul Estates at the disposal of theerstwhile Delhi-Improvement Trust with effect from 1. 4. 1937 through thenazul Agreement of March, 1937. 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 landsthe Govt. of India placed various Nazul Estates at the disposal of theerstwhile Delhi-Improvement Trust with effect from 1. 4. 1937 through thenazul Agreement of March, 1937. These nazul lands, popularly known asold Nazul Estates, are now under the management of Delhi Developmentauthority as the successor body of Delhi Improvement Trust. These landsare managed as per provisions of the Nazul Agreement 1937 and Punjabland Revenue Act, 1887. The receipts and expenditure relating to thesenazul Estates are being booked under aseparate section of Account called'nazul Account-I'. (b) Land transferred from the Land and Development Office-The Govt. of India, Ministry of Works and Housing transferred from thecontrol of the Land and Development Office to DDA certain nazul lands formanagement under Section 22 (1) of the Delhi Development Act subject tothe condition that the Authority shall not make or cause or permit to bemade any construction on the said land and shall when required by thecentral Govt. so to do, replace the said lands or any portion thereof, as maybe so required, at the disposal of the Central Govt. These lands are treatedas nazul lands and the receipts and expendture relating to the land is bookunder 'nazul Account-I'. (c) Lands of urbanised villages earlier vested in gaon-sabha:the Govt. of India, Ministry of Works and Housing transferred to theauthority under Section 22 (1) of the Delhi Development Act, 1957 certainlands vested in Central Govt. on urbanisation of specified villages for thepurpose of development and maintenance as green subject to the conditionthat the DDA 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 thedisposal of the Central Govt. These lands are treated as nazul land and thereceipts and expenditure relating to these lands is booked under "nazul Account-I". Nazul-II Landsthese lands are acquired by Delhi Administration (Land and Bldg. Deptt.)through the Land Acquisition Collectors Delhi under the scheme of Largescale Acquisition, Development and Disposal of Land in Delhi framed bythe Govt. of India, Ministry of Home Affairs, New Delhi in 1961. For thispurpose, a Revolving Fund has been placed at the disposal of Delhi Admn. Nazul-II Landsthese lands are acquired by Delhi Administration (Land and Bldg. Deptt.)through the Land Acquisition Collectors Delhi under the scheme of Largescale Acquisition, Development and Disposal of Land in Delhi framed bythe Govt. of India, Ministry of Home Affairs, New Delhi in 1961. For thispurpose, a Revolving Fund has been placed at the disposal of Delhi Admn. (Land and Bldg. Deptt.) out of which the cost of acquisition is met. The landsso acquired, amongst others, are placed at the disposal of the Delhidevelopment Authority under Section 22 (1) of Delhi Development Act,1957 for development and disposal. These lands are managed as perprovisions of D. D. Act, 1957 and Delhi Development Authority (Disposalof Developed Nazul land) Rules, 1981. The receipts and expenditure on account of these lands are booked under a separate section and accountscalled "nazul Account-II". Nazul Account-III Landsthese lands are placed at the disposal of the. DDA by the Central Govt. forimplementation of the Jhuggi Jhopari Removal Scheme being executed bythe Authority on behalf of the Central Govt. The receipts and expenditureon account of these lands are booked under a separate section of accountscalled "nazul Account-III". These lands vest in the President and are givenout only in his name on lease hold basis. General Development Landsthese lands are required by the DDA out of General Development Accounts Funds as its own property. These lands also include the unutilisedlands within the urbanisation limits of Delhi previously under the management of Ministry of Rehabilitation, Govt. of India purchased by theauthority on as-is-where-is" basis on payment of Rs. 30 crores out of thegeneral 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 tomcd in development areas under S. 36 of the Act. As per these guidelines, transfer of amenities and civic services to MCD shall noteffect DDA's role in management, control and disposal of nazul lands. Training of revenue staff and handling of litigation. 1. 11 The Authority considered and approved guidelines on principles/procedures governing transfer of amenities and services from DDA tomcd in development areas under S. 36 of the Act. As per these guidelines, transfer of amenities and civic services to MCD shall noteffect 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 trainedrevenue staff, Authority decided to form its own cadre of revenue staffand approved syllabus for training of various categories of revenuestaff keeping in view requirement of Authority, land laws applicable indelhi and to increase general knowledge of the staff to equip them toshoulder their responsibility efficiently. 1. 13 There are large number of legal cases pending in various courtspertaining to Lands Deptt. Proper, contesting of these cases form anintegral part of the duties of officers posted in the Lands Deptt. Detailed instructions for streamlining the handling of litigation work invarious Deptts. of DDA were issued by VC, DDA in September, 1990. The procedure for conducting Court cases in Lands Deptt. was furtherrationalised in the meeting taken by Commissioner (L) on 19/09/1990. "then learned counsel referred to office order dated 23. 1. 1995 issued by Delhidevelopment Authority, Office of Commissioner (LD) with reference to the executionof agreements for renewal in respect of naznl-I lands. This was given to us at the timeof arguments on. 21/02/1995. This deals. with the guidelines relating to therenewal of lease deeds with reference to nazul-I lands and it does not speak of themunicipal functions. A resolution dated 20. 10. 1986 on transfer of amenities and civicservices from DDA to MCD under Section 36 of the D. D. Act, 1957. The resolutionreads 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 thetime-frame as contained in appendand 'c' to item No. 10 of the agenda be approved. The Authority further resolved that the DDA staff as is working inthese colonies shall stand transferred to the MCD and these colonies shallnot include any of the slum and JJ Colonies or the Urban Villages. It fur-ther resolved that the payment of the deficiency charges will be made onlyafter the approval of the Authority. "this has absolutely no bearing on the question at issue. It fur-ther resolved that the payment of the deficiency charges will be made onlyafter the approval of the Authority. "this has absolutely no bearing on the question at issue. For administrative con-venience matters are considered by the authorities then and there depending upon theexigencies and that canikxtccaifer any right on the petitioners. Section 2 (e) of thedjdjlatit, 1957 defines development area. The definition reads as follows :-2 (e) - "development area" means any area declared to be a development- areaunder sub-section (1) of Section 12. "a reading of the provisions of the Delhi Developmept Act, with particular reference to Section 12,22 and 22a, would make it clear that the contention on behalf ofthe petitioners is not atall acceptable in law. The petitioners have completelymistunderstood the scope of the jurisdiction and the functions of the Municipalauthorities with reference to the buildings situated within the area of the MCD. It isdear from the reading of the provisions of the Delhi Municipal Corporation Act, theonly authority relating to the construction of buildings within its area is the Municipalcorporation 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 thequestion 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 notfile any independent counter, even though it adopted the counter filed by the MCDcannot avail the petitioners. ( 102 ) MR. Shanti Bhushan, learned senior counsel submitted, inter-alia, that thiscourt can direct the authorities to frame ascheme for the purpose of regularising theunauthorised constructions by imposing such terms and conditions that may be expedient in this behalf. He produced a Bill No. 28/91, presented before the Karnatakalegislative Council which reads the Karntaka Regularising of Unauthorised Construction in Urban Areas Bill, 1991. The document produced mentions Bill as passedby 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 repliedstating that he was not aware of it. The document was produced on 21/02/1995 at the time of arguments. We do not see any relevancy at all for us to consider inthe light of the law and the facts and circumstances of this case. Justice Y. K. Sabharwal, whether it has become law, the learned senior counsel repliedstating that he was not aware of it. The document was produced on 21/02/1995 at the time of arguments. We do not see any relevancy at all for us to consider inthe light of the law and the facts and circumstances of this case. The law is cleargoverning the construction of buildings in the area and, therefore, the situation doesnot call for framing of any scheme by this Court. ( 103 ) 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. ( 104 ) THE judgment under appeals, rendered by the learned Single Judge, withgreat respect, is correct and we find no reasons to interfere with it. ( 105 ) FOR all these reasons, all the writ petitions are dismissed and the appealsagainst the order of the learned Single Judge and C. M. (M) are also dismissed. It ismade clear that all interim orders pending the writ petitions and appeals stand vacated. This judgment disposes of the other connected writ petitions also. ( 106 ) 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 beingvery instructive. Before I could bestow any thought on the judgment, I marvelled atthe way in which the learned Judge could capsulize the entire arguments. With greatrespect and admiration I allowed myself to be enticed by the splendor of the language. With due deference and respect I concur my brother in all respects. ( 107 ) Y. K. Sabharwal, J. I bad the advantage of reading the opinion of my learned brother K. Ramamoorthy. I am in respectful agreement with the conclusions reached by brotherramamoorthy that all the appeals and writ petitions deserve dismissal. In his judgment brother Ramamoorthy has dealt with various aspects of the matter in great detailas also the decisions cited before us. Considering, however, the gravity of unauthorised construction and misuser and numerous cases which come up beforecourts seeking injunction relating to such constructions, I would notice few sailentfacts of these cases. ( 108 ) THE unauthorised construction and unauthorised user of residential building forcommercial purposes in Delhi has gained alarming proportions and crossed all limits. Considering, however, the gravity of unauthorised construction and misuser and numerous cases which come up beforecourts seeking injunction relating to such constructions, I would notice few sailentfacts of these cases. ( 108 ) THE unauthorised construction and unauthorised user of residential building forcommercial 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 thesociety at large and need to be dealt with firmly. 109. ( 110 ) THE appeals have been preferred by the owners / builders challenging the judgment dated 5/12/1994 passed by a learned single Judge dismissing their injunction applications filed in the suits praying for grant of decree for permanentinjunction restraining the Municipal Corporation of Delhi ( M. C. D.) and another fromtaking any demolition and / or sealing action in respect of the properties in question. ( 111 ) THE writ petitions have been preferred by the purchasers of built up areas /spaces in these buildings. ( 112 ) 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. fton the 4th floor in the building constructed on Plot No. 11/5-B, Pusa Road, New Delhi,by four different agreements dated 4/07/1994 for a total consideration ofrs. 30,40,000. 00 from Pawan Kumar and others. ( 113 ) 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 ofkhurana and appeal of Pawan Kumar may first be noticed. ( 114 ) IN January 1994 Pawan Kumar instituted the aforesaid suit claiming to be theowner and in possession of property bearing Plot No. 5, Block 11-B, Pusa Road andpleading that after demolishing the old structure he started fresh construction as perthe sanctioned plan. It was also claimed that he completed the construction as persanction 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 thesanctioned plan and the deviations were within the compoundable limits and,therefore, the MCD after receiving the compounding fee granted to him the completioncertificate in respect of the property. He further pleaded that there were minor deviations in the construction from thesanctioned plan and the deviations were within the compoundable limits and,therefore, the MCD after receiving the compounding fee granted to him the completioncertificate in respect of the property. He has specifically pleaded in the suit that theconstruction was strictly as per sanction and building bye laws and for minor deviations be had paid the compounding fee and,therefore, claimed that the property is asper the sanction and building bye laws. He further claimed that he had not violatedany of the terms of sanction granted, provisions of the Municipal bye laws, the Delhimunicipal 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 2 1/01/1994, MCD was,inter-alia, restrained from demolishing the property. On 2 7/07/1994, the learned single Judge dealing with the suit, after noticing the contentionof 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 oflearned counsel for the plaintiff that the plaintiff and others are already in occupation)issued the directions that the plaintiff shall maintain status quo regarding possessionand construction as on the date of the passing of the order and that the plaintiff-willnot henceforth transfer right in the property to any third person. ( 115 ) IN the written statement the MCD, inter- alia, pleaded that a completion certificate was granted in respect of the building in question on 16/11/1993 in respectof construction of basement, ground floor, first floor and barsati. It was also pleadedthat the permissible deviations in respect of which the compounding fee was paid werealso included in the completion certificate. Further facts pleaded by MCD in the written statement are these:- ( 116 ) ON 28/01/1994 unauthorised construction was detected at the basement, ground floor, first floor, second floor and third floor of the building. Showcause notice was issued and since no reply was received, demolition notice for unauthorised construction was issued on 3/02/1994 to which also no reply wasforthcoming and thus the MCD passed demotion order on 10/02/1994. Showcause notice was issued and since no reply was received, demolition notice for unauthorised construction was issued on 3/02/1994 to which also no reply wasforthcoming and thus the MCD passed demotion order on 10/02/1994. On 3/02/1994 and 4th February 1994 ongoingng unauthorised construction in thebuilding was demolished in part; on 10/02/1994 still further demolition orders inrespect of unauthorised construction was passed but before the same could be executed the plaintiff carried further unauthorised construction at the 4th floor of thebuilding which was detected on 25/04/1994 and a show cause notice was issued tothe plaintiff on the same date. The demolition order in respect of the 4th floor waspassed on 9/05/1994. On 11/02/1994 when officers of the MCD went todemolish the ongoing unauthorised construction the plaintiff showed them a stayorder having been granted by this court. According to the Municipal Corporation ofdelhi apparently even after obtaining stay order from this court the plaintiff has beencarrying on unauthorised construction in the premises as a bare reading of the completion certificate makes it dear that the construction has been allowed only upto Barsati but the plaintiff has raised construction on 3rd floor as well as 4th floor besidesraising unauthorised construction even on the basement, ground floor, first floor andsecond floor. ( 117 ) THE suit of Pawan Kumar was being heard by learned single Judge alongwithvarious other suits including Suit No. 159 of 1994 filed by Smt. Paramjit Kaur andanother Vs. MCD raising similar disputes. A Local Commissioner was appointed bythe court to report about the existing structures. The report of the learned Localcommissioner in respect of the existing structure shows that in Basement floor, thereis 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 inthe rear side back, First floor - there is a big hall with toilet, bathroom built in allrespect and lying vacant. On Second floor - there is a big hall with toilet, bathroombuilt and lying vacant, Third floor - there is one big hall with toilet, bathroom built andlying vacant. Fourth Floor - there is one big hall with toilet, bathroom complete andlying vacant; Terrace with a covered Mamti. There is a lift which is incomplete and isnot functioning. On Second floor - there is a big hall with toilet, bathroombuilt and lying vacant, Third floor - there is one big hall with toilet, bathroom built andlying vacant. Fourth Floor - there is one big hall with toilet, bathroom complete andlying vacant; Terrace with a covered Mamti. There is a lift which is incomplete and isnot functioning. ( 118 ) THE learned Local Commissioner reported that the building consists of easement floor, first floor, second floor, third floor, fourth floor and terrace with coveredmamti but owner/builder has got the building plan sanctioned only for construction ofa basement, ground floor) first floor and a half second floor i. e. barsati. ( 119 ) BY judgment dated 5/12/1994, the learned single Judge came to theprima facie view that it was not a fit case where injunction could be confirmed. Theconduct of the plaintiff regarding misrepresentation and concealment of material factsand in particular the case set up by the plaintiff that the building was constructed asper sanctioned plan, has been noticed in the judgment under appeal which also makesreference to the report of the Local Commissioner, referred to above. The contentionthat the MCD has no jurisdiction to order or conduct demolition has also not foundfavour with the learned single Judge. The judgment of the learned single Judge isunder appeal before us. ( 120 ) BRIEF Pacts of G. W. 4545 / 1994as noticed earlier the writ petitioner Mr. Anil Kumar Khurana claims to havepurchased built up area of 1560 sq. ft on the 4th floor in the aforesaid building frompawan Kumar and others by four different agreements to sell, all dated 4/07/1994. These agreements were entered into after the ex-parte order of injunction was passedin the suit referred to above and after show cause notice and demolition order hadbeen passed by the MCD. Khurana has pleaded that the promoter of the building hadapplied to Commissioner, MCD, for grant of permission for erecting residential building. He further says that the building work started in the year 1992 and was completedwithin a span of two years in early 1994. He also admits that instead of a residentialbuilding, a commercial building was erected. It also stands admitted on record thataccording to the terms of the lease deed of the plot in question the user is residential. He further says that the building work started in the year 1992 and was completedwithin a span of two years in early 1994. He also admits that instead of a residentialbuilding, a commercial building was erected. It also stands admitted on record thataccording 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 tothe 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 unde the plotand, 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 anestoppel against the Statute. . ( 121 ) THE main plank of arguments in the writ petitions and the appeals is that thedda being successor of Delhi Improvement Trust alone has the jurisdiction over theland in question since their predecessor-in-interest bad taken the land on lease fromthe Delhi Improvement Trust. The plea of hostile discrimination has also beenpressed into service contending that there are various unauthorised buildings butbuildings in question are being singled out to suffer demolition. It has also beenpointed out that various buildings in Karol Bagh Zone are being put to commercialuse though the permissible user is residential. It has further been contended that therespondents are debarred from taking any action in view of the resolution of DDAbearing No. 728 dated 24/12/1965. Yet another contention is that there isacute shortage of commercial accommodation and,therefore, a service is beingrendered by construction of these buildings and putting them for commercial use sincethe authorities have failed to provide the commercial accommodation to meet thescaracity of commercial accommodation. ( 122 ) KHURANA, therefore, seeks a declaration that the land use of the property is notexclusively 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 jurisdictionof MCD and within the jurisdiction of DDA. ( 123 ) THE appeals and the writ petitions have been resisted by MCD and DDA (hereinafter collectively referred to as 'respondents' ). ( 123 ) 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 discretioneryrelief from this court either in exercise of writ jurisdiction or while dealing with appeals filed against orders refusing injunction. It is contended that both jurisdictionsare discretionery and equitable. It has been,inter- alia, submitted that the owners/purchasers of the space in these buildings have been indulging in speculative litigation bydeliberate concealment with a view to mislead the court and obtain interim orders. Ithas 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 beenunauthorisedly added and instead of residential a commercial building has been constructed. It is also not disputed that the properties as constructed cannot be put toresidential use. It has further been submitted that many of the petitioners purchasedthe buildings after MCD had initiated action against the owners/builders for demolition of the property. The petitioners have deliberately concealed from the courtvarious show cause notices as also the demolition order passed by MCD in respect ofthe buildings in question and about the pendency of various suits. They also point outthat various purchasers have purchased the built up areas after the order of injunctionhad been passed. It has been submitted that by order passed on 2/11/1994in suits the court directed that the plaintiffs will neither induct any one nor create anythird party interests in the said properties. The MCD was given liberty to give a publicnotice of the said order. The MCD by public notice issued in Times of India dated 9/11/1994 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. Inspiteof the said order the sale deeds in C. W. P. 5213,5186,5192,5183 and 5205 of 1994 havebeen executed after 2/11/1994. The respondents have also submitted thatadmittedly buildings have been built in violation of not only the sanctioned plan butalso of the provisions of building bye laws and instead of two storeyed building-and abarsati floor, in most of cases buildings upto 5 floors have been constructed and theground coverage, has been extended upto 100% as against 40% allowed under themunicipal Bye Laws. It has also been contended that the MCD is well within thejurisdiction 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. ( 124 ) THE exercise of jurisdiction under Article 226 is purely discretionery. Seldomcan a petitioner ask for it as of right. Writs are not issued as a matter of course. Whiledeciding a writ petition the court can see which way the justice lies. This Court is notobliged or bound to interfere inwrit jurisdiction in every case where the order of theauthorities may be without jurisdiction. When it stands established and admitted thatthe land use mentioned in the lease deeds is residential and the buildings have beenconstructed in a manner that the same can be used only for commercial purposes andalso that there are unauthorised construction, instead of permissible two and a halffloors, 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 landunderneath and not the other (MCD), to initiate demolition action. ( 125 ) IN an equitable jurisdiction it is the duty of the court to preserve the publicgood. The writ court cannot protect the wrong. A person who seeks equity must doequity. No one can be allowed to take advantage of his own wrong. A person who hascommitted a wrong may not be heard by a writ court in support of the plea that theauthority which is taking action against him has no power or jurisdiction and suchpower vests in another statutory authority. The law breakers can be refused equitablerelief assuming they may have some case on merits. The writ court can deny hearingto such law breakers. ( 126 ) 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 oflease is admittedly residential. The area and the floors consructed are many fold morethan the sanctioned plans and what is permissible as per building bye-laws. Insofar asappellants i. e. Builders/owners are concerned, they had come to court pleading thatthe constructions were as per the sanctioned plans. The user as per terms oflease is admittedly residential. The area and the floors consructed are many fold morethan the sanctioned plans and what is permissible as per building bye-laws. Insofar asappellants i. e. Builders/owners are concerned, they had come to court pleading thatthe constructions were as per the sanctioned plans. Prima facie, on the basis ofvoluminious material on record including the report of the Local Commissioner on inspection of the construction, the representations of the owners/builders made inpleadings have been found to be untrue. The powers of the court while dealing withinjunction suits and the powers of the writ court are discretionary and equitable. ( 127 ) THE Supreme Court in AM. Allison and another Vs. B. L. Sen and others, AIR1957 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 thatthe order of the Deputy Collector was subject matter of proceedings of the Highcourt under Article 226 of the Constitution, the Supreme Court held that the writproceedings are not of course and the High Court had the power to refuse the writ if itwas 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 theopinion of the High Court and also declined to interfere. In present case though thepetitioners 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 anyfailure of justice as it stands admitted that the buildings cannot be put to residentialuse and the constructions do not conform to the building byelaws and sanctionedplans. Reference may also be made to decision in Dohyabhai Somabhai and anothervs. Ramaji Kesraji and others AIR 1971 Gujrat 232 holding that even if order is withoutjurisdiction court can refuse to issue writ if justice of the case so demands. In M/s. Shivshankerdal Mills etc Vs. State of Haryana and others, AIR 1980 SC 1037 the Supremecourt speaking through Justice Krishna Iyer held that in proceedings under Article226 of the Constitution granting or withholding of relief may properly be dependentupon the public interest. In M/s. Shivshankerdal Mills etc Vs. State of Haryana and others, AIR 1980 SC 1037 the Supremecourt speaking through Justice Krishna Iyer held that in proceedings under Article226 of the Constitution granting or withholding of relief may properly be dependentupon the public interest. ( 128 ) THE public interest demands that the court should not come to the aid of thosewho break the law with immunity and put up commercial complexes on the land meantadmittedly for residential use. These complexes are put up and spaces purchased forpetty commercial considerations without any regard to the hardship and incon-venience of other citizens. ( 129 ) REFERENCE may also be made to. the case of Sripat Narain Rai Vs. Board of. Revenue UP and others, AIR 1960 Allahabad 93 where it was held that mere fact thatorder was without jurisdiction or there was error apparent on face of record was notsufficient to justify issue of writ but in addition, it had to be established that the orderhad resulted in injustice to the petitioner. ( 130 ) IN the present cases the order of restraint against the authorities in respect ofbuildings 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 anybetter rights than the builder/owners. It is also not conceivable that the areas/spacesin the building would be purchased by making investment of huge amounts without thepurchasers 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/buildersare represented by same counsel and the writ petitions were filed during the pendencyof the suits of builders/owners. The writ petitioners as also appellants are not entitledto be heard that the MCD has no jurisdiction and that the jurisdiction vests only withdda. The owners/builders had themselves got the plans sanctioned from MCD. ( 131 ) THE contention that there are various other buildings in Karol Bagh Zonewhich are not being demolished though unauthorised and,therefore, the action of therespondents in directing demolition of the buildings in question is discriminatory andliable to be quashed, is also misconceived. The petitioners have placed on record certain photographs and other material to show the existence of other unauthorisedbuildings in Karol Bagh Zone. The offending buildings of the petitioners are also inkarol Bagh Zone. The petitioners have placed on record certain photographs and other material to show the existence of other unauthorisedbuildings in Karol Bagh Zone. The offending buildings of the petitioners are also inkarol Bagh Zone. Assuming there are other unauthorised buildings in the Zone still Icannot accept the contention that other unauthorised buildings should be firstdemolished and then alone the buildings of the petitioners should be touched. ( 132 ) THE acceptance of the contention based on Article 14 of the Constitutionwould mean perpetuating illegalities. No person can be permitted to take advantageof his own wrong. The buildings in question have been constructed in violation ofterms of lease and building bye-lws and in contravention of sanctioned plans. It cannotbe said that first the action should be taken against other law breakers. Illegal actionby sanctioning plans contrary to bye-laws or non- action in other cases by notdemolishing other unauthorised buildings cannot be a ground to issue a writ in favourof the petitioners taking shelter under Article 14. Article 14 has no application whereaction is taken by authorities to remove one evil merely on the ground that no actionhas been taken to remove other evils. Two persons may commit similar offence. Theone who is prosecuted cannot complain of violation of Article 14 on the ground thatother person has not been prosecuted. If permissible in law court may also directprosecution or action against person who may have been left out but that wouldnot be a ground to quash prosecution or action against the person against whomauthorities are taking action. The plea of discrimination cannot be put forth whenthe law is given effect to. The denial of illegal favour cannot amount to discriminatory treatment violative of principles of equality clause enshrined in Article14 of the Constitution. A wrong decision in favour of one person does not entitleany 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 beenso favoured. The petitioners have to establish their right in law. The plea of discrimination, therefore, is rejected. . A wrong decision in favour of one person does not entitleany 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 beenso favoured. The petitioners have to establish their right in law. The plea of discrimination, therefore, is rejected. . ( 133 ) IT is also contended that the respondents are guilty of picking and choosingand for extraneous considerations have left out certain buildings from the rigour ofdemolition and taken up other buildings for demolition action, again on account ofextraneous considerations and that buildings unauthorisedly constructed earliershould be demolished earlier and constructed later should be demolished later inpoint of time. If the principles of first come first go in the matters of demolitionaction in respect of unauthorised building, is accepted, it would mean that pendingaction of demolition against unauthorised construction already in existence, theauthorities should not take any action in respect of ongoing unauthorised construction and permit such constructions to go on. This cannot be accepted. Theprinciple 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 isalso true that if authorities had taken necessary action at appropriate times thepresent state of unauthorised construction would not have reached. It may be sobut at the same time a beginning has to be made at some point of time. It cannotbe held that since over years demolition action has not been taken and the entirecity consists of unauthorised construction, either beginning should not be made bytaking demolition action or first the old unauthorised buildings should bedemolished. The authorities are,however, directed to take prompt decisionsregarding other unauthorised buildings. I may also notice that neither resorting todemolition nor regularisation of the buildings unauthorisedly constructed decadesearlier results in encouraging avoidable corruption at various levels and,therefore,it is necessary for the authorities to take a prompt decision. ( 134 ) THE petitioners have no case even on merits. ( 135 ) THE petitioner has not been able to establish that the lease in favour of hispredecessor was in pursuance of the provisions of an improvement scheme sanctionedunder Section 42 of the U. P. Town Improvement Act. There is also nothing on recordto show that the improvement scheme was in existence in 1957 when Delhi Development Act, 1957 was enacted. There is also nothing on recordto show that the improvement scheme was in existence in 1957 when Delhi Development Act, 1957 was enacted. ( 136 ) 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 thatsuch a consent was obtained. Further, the deed provides that lease shall become voidif 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 that thelease becomes void since the case of the petitioners is that the buildings have beenconstructed in a manner that these can be used only for commercial purposes and notfor residential purpose. ( 137 ) THE owners sought and obtained permission from MCD and got the planssanctioned for erecting a residential building. It is too late in the day for thepetitioners to contend that under a mistake of law the plans were got sanctioned frommcd. ( 138 ) RELIANCE of the petitioners on resolution dated 24/12/1965 passedby Delhi Development Authority is' also misconceived. The said resolution showsthat the Standing Committee, on consideration of the communication of Commissioner of Municipal Corporation of Delhi to the effect that in number of areaspremises intended for residential purpose have been put to commercial use in contravention of provisions of Master Plan, felt that as office accommodation in Delhifor governmental needs as well as for private commercial uses is extremely short, itwould not be feasible to launch prosecution against property owners for puttingresidential premises to commercial use in contravention of the provisions of themaster Plans until the present position in that regard substantially improves. Thestanding Committee-inter-alia, recommended that positive steps should be takenfor early development of District Centres in Kalkaji and Pusa Road etc so thatshortage of office accommodation is relieved to some extent. The resolution reliedupon cannot be used to contravene the municipal laws for all times to come. Theresolution only shows that keeping in view the shortage of commercial accomodation in the year 1965 it was decided not to prosecute the owners for misusersince, at that time, commercial centres had not been built in the areas like Pusaroad and Kalkaji. There has been considerable change after the year 1965. Theresolution only shows that keeping in view the shortage of commercial accomodation in the year 1965 it was decided not to prosecute the owners for misusersince, at that time, commercial centres had not been built in the areas like Pusaroad and Kalkaji. There has been considerable change after the year 1965. Inpusa Road area commercial complex by the name of Rajindra Place has been constructed by DDA. In Kalkaji area Nehru Place Commercial Complex has beenconstructed. The resolution of 1965 does not give a right in perpetuity to violatethe law. ( 139 ) RELIANCE of petitioners on the provisions of the Government Grant Act, 1985 isalso misconceived. The MCD by the threatened action is not interfering with theright, title or interest of the petitioners or their predecessor-in-interest in respect ofthe land on which unauthorised buildings have been constructed. ( 140 ) IN respect of blatant unauthorised constructions and misuser as in presentcases it cannot be said that the Commissioner of MCD has a discretion to orderdemolition or not. Vesting of discretion in these circumstances would itself be arbitrary and illegal. . ( 141 ) I am in respectful agreement with the conclusions reached by brotherramamoorthy including the conclusion that the MCD has power to take demolitionaction, while rejecting the contention of the petitioners and appellants that such apower vests with DDA. ( 142 ) IN the end, I regret to notice that despite warning and caution given by theapex Court and also this court, from time to time, that stern action will be takenagainst unauthorised constructions and misuse, these activities have gone on unabated, without any let or hinderance and all the warnings have fallen on deaf earswithout any effect on the unscruplous builders and purchasers of these spaces. Itis,therefore, necessary to once again send a message,loudly, clearly and firmly toall those who indulge in such illegal activities that courts will not come to the aid ofpersons who indulge in such blatant unauthorised constructions and misuser of theproperties. It is also the duty of the courts to examine these matters carefullybefore granting injunction restraining demolition of such unauthorised constructions. Ordinarily the courts before issuing injunctions in such matters should insistupon filing of the sanctioned plans and details about the existing structures toprima facie find out whether the existing structures are in accordance with thesanctioned plan and building bye laws etc or not. Ordinarily the courts before issuing injunctions in such matters should insistupon filing of the sanctioned plans and details about the existing structures toprima facie find out whether the existing structures are in accordance with thesanctioned plan and building bye laws etc or not. The courts may also consider appointment of independent person to verify correctness of representations madeabout existing structures as in many cases unauthorised constructions are raisedafter 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 fromall citizens including the Media and the Press. It is the duty of all to expose theselaw breakers. I hope the Media would bring to the notice of public in general thatunauthorised constructions and misuser have been severely dealt with by this courtand henceforth also no leniency would be shown in such matters. A copy of thisjudgment 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 anyone indulges in such unauthorised construction or misuse or in purchase of theseunauthorised constructions he would be doing it at his own risk and peril andwould not be heard to say that he has made large investments. I hope that atleastnow this message would be taken with all seriousness. ( 143 ) IN view of the above, in my opinion, all the petitioners and appeals deserve dismissal with costs quantified at Rs. 10,000. 00 in each case. These costs would be utilisedby M. C. D. for creating in a Special Cell which should be set up to curb unauthorisedconstruction and misuser of the immoveable properties so that atleast a beginning ismade now to promptly check these illegal activities. The officials and officers manningthis Cell will have to be informed that any dereliction of duty would be severely dealtwith.