M.K. Sharma, J.
1. By this common judgment/order we propose to dispose of the aforestated two writ petitions filed in this Court in the nature of public interest litigation. In both the writ petitions similar questions are raised and the main focus is on alleged unauthorised transfer of 17 Bighas and 14 bids was of land and unauthorised constructions made on 10 Bighas 14 bids was of such land situated at Model Town, Delhi with a prayer to demolish the same. In order to appreciate and to enable us to answer the points raised in both the writ petitions and urged before us during the course of arguments it would to necessary to narrate some of the background facts leading to the filing of the present writ petitions.
2. Approximately 17 Bighas 14 bids was of land including 10 Bighas 14 bids was of land where superstructures are raised by the respondents 5 to 10 are involved in the present writ petitions which are situate in Village Malikpur Chhawni now known as B-2 Block, Model Town, Delhi. The Notified Area Committee, Civil District, (hereinafter to be referred to as NAC) purchased 7.86 acres of land including the aforesaid land from Lala Raghubar Dayal for a sum of Rs. 9,200/- on 8.2.1919. The said land was purchased by a sale deed which was registered on 11.2.1919 and a copy thereof is placed on record at page 256 of the writ paper book. After about a year or so the Notified Area Committee leased out the entire land, to M/s Edward Kaventer of Aligarh Dairy Farm for a period of 30 years commencing from 1.11.1920 and ending on 31.10.1950. Some records are placed by the respondents 5 to 10 to show that a resolution was adopted by the Notified Area Committee on 2.1.1943, according to which the Chief Commissioner approved the sale of land to Late Shri Rati Ram. The said resolution is alleged to be a forged resolution by the petitioners herein and also by the Union of India and the Delhi Development Authority. The respondents 5 to 10 herein, apart from relying on the contents of the aforesaid resolution also rely upon sale deed dated 20.5.1943 alleged to have been executed by the NAC in favor of Shri Rati Ram which is shown to be a registered document. According to the respondents 5 to 10 by the aforesaid sale deed M/s Edward Kaventer purchased the land benami in the name of Rati Ram. By the said sale deed possession of the land was also transferred by the Committee to Late Shri Rati Ram. The petitioners and other respondents save and except the respondents 5 to 10 have alleged that the said document is also forged. As the lease granted in favor of M/s Edward Kaventer was to expire on 31.10.1950 a request was made by M/s. Edward Kaventer (successors) Ltd, to the Notified Area Committee on 20.4.1950 requesting for extension of the lease for a further period of 30 years from 1.11.1950. The aforesaid request to M/s. Edward Kaventer (successors) Ltd. was considered by the NAC and a resolution to that effect Was adopted on 29.11.1950 resolving to terminate the lease and not to renew the same. It was also resolved by the said resolution that lessee should be notified to handover possession of the land and that the said land be advertised properly for open auction. The said resolution is dated 29.11.1950 as stated in the affidavit filed by the parties. The records indicate that a lease deed was executed in between NAC and M/s Edward Kaventer (Successors) Ltd. for the same land on 24.7.1950 leasing it out in favor of the said company for the period from 1.4.1996 to 31.10.1950. It further transpires from the records that M/s. DLF Housing Construction Ltd. also made a request to purchase the said land as it was developing the entire Model Town. It is stated in the counter affidavit filed that the aforesaid request of M/s DLF Housing Constructions Ltd. was considered and thereafter turned down. A resolution being resolution No. 35 dated 23.7.1952 was adopted by NAC to utilise the said land for starting an open air theatre and part of the area for hotel. Another resolution being resolution No. 44 came to be adapted by the NAC on 3.5.1953 as the lessee namely, M/s. Edward Kaventer Ltd. failed to handover possession on expiry of the lease. A proceeding for eviction was filed in the Court by the NAC and during the pendency of the said proceeding the lessee appeared before the Committee for a compromise and finally vide the aforesaid resolution it was resolved that negotiations be made to take over building, charges etc.
On 31.3.1958 a letter was written conveying the decision of Government of India transferring Nazul land management to Delhi Administration. On the same dated i.e. 31.3.1958 a letter was written to the land and Development Officer forwarding four communications of the same date addressed to the Commissioner of Local Authorities. Delhi conveying the decision of the Government of India transferring management and care of Nazul land within the jurisdiction of NAC (Civil Station), Delhi District Board. Delhi, NAC (Fort) and Delhi Municipal Committee to the management and care of the Land and Development Officer. By the said letter the Land and Development Officer was requested to take over charge of the said land and the records pertaining thereto. The land in question was admittedly land within the jurisdiction of NAC (Civil Station). The NAC was immediately thereafter dissolved. On transfer of the aforesaid land to the Land and Development Officer from the NAC w.e.f. 1.4.1958, notice was issued to the unauthorised occupants by the L&DO; & the eviction proceedings were initiated against M/s. Edward Kaventer (Successors) Ltd. in the court of the Estate Officer, L&DO.;
3. In the. meantime a settlement was arrived at in terms of which one of the ex-tenants. Shri Baldev Raj who was also in occupation of a part of the subject land surrendered possession before the Estate Officer. L&DO; on 20.1.1962 and M/s. Edward Kaventer (Successors) Ltd. agreed to demolish the buildings and to remove all the materials and debris and to vacate the site. At the same time the Government of India sanctioned a plot within the aforesaid area measuring about 4.61 acres to Delhi Administration for construction of its staff quarters and the said land was directed to be placed at the disposal the CPWD.
4. Rati Ram claiming to be in occupation of land measuring about 17 Bighas 14 bids was filed a suit against the Union of India and Land & Development Officer seeking a decrees of permanent injunction against the defendants from dispossession. In the plaint filed by said Rati Ram it was stated that he was in occupation of land measuring 17 Bighas 14 bids was and was cultivating the same since many years as Gair Marusi tenant under the NAC (Civil Station). The said suit was instituted on 5.6.1965 and was registered as Suit No. 492/1965. The Subordinate Judge by his order dated 10.3.1966 dismissed the said suit filed by Rati Ram on the ground that the said suit was barred under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 and that the suit was not maintainable. As against the aforesaid judgment and order dismissing the suit an appeal was taken before the Additional District Judge, Delhi. On 1.2.1937 Shri Rati Ram made a request to the NAC requesting for 99 years of lease in his favor claiming to be in possession of the land and contending inter alias that he is in possession of the land for about 15 years by maturing the tilling the same. Rati Ram died on 25.2.1969 and on his death his wife Ram Piari and son Kanwal Singh filed application for impleadment.
5. After the aforesaid impleadment the Appellate Court took up the appeal and by an order remanded the suit to the trial court. In terms of the order of remand fresh trial was conducted and a judgment and decree was passed holding that the plaintiff was not a tenant of the suit land and was not in possession of the same prior to 1962. The said judgment was rendered on 30.4.1970 and an appeal there from was filed by the widow and son as also by the daughter Smt. Krishna in the Court of the Additional District Judge which was registered as RCA No. 19-A of 1974. The Additional District Judge by his order dated 27.8.1974 held that the legal representatives of Late Shri Rati Ram were in unauthorised occupation of the public land but they could not be dispossessed without due process of law. Around the same time a notification was issued on 12.7.1974 by the L&DO; under Section 22 of the Delhi Development Act vesting 3.044 acres with the DDA for development and maintenance of the lands as green. It is stated that the Delhi Development Authority took possession of the aforesaid land some time on 4.9.1974 and immediately thereafter DDA initiated proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act against the legal representatives of Shri Rati Ram. In the said proceedings under the P.P. Act Smt. Ram Piari filed a written statement wherein in paragraph 4 it was stated inter alias that Rati Ram had taken the said land for tilling purposes and after his death she was in possession of the said land Along with other legal heirs as agricultural land and the land was tilled and ploughed by her on the same terms and conditions. The said proceedings were pending before the Estate Officer. During the pendency of the said proceedings it transpires from the records that the entire land of 17 Bighas 14 bids was were sold by Ram Piari and Kanwal Singh. In favor of 17 persons by sale deeds stated to have been executed on 26.5.1989 and registered on 2.6.1989. At this stage one very relevant and interesting aspect is required to be mentioned. The records placed before us indicate that mutation in respect of the entire land was got affected in the records maintained by the Revenue Authority in favor of Rati Ram sometime on 28.7.1989 although by then be was dead. On the same day further mutation was effected in respect of same land in favor of Ram Piari and Kanwal Singh. Mutation in respect of the same land was also got effected in the Revenue records in favor of said 17 purchasers on the same day. All the aforesaid mutations incidentally took place on the same date i.e. on 28.7.1989, although much prior to the said date Rati Ram had died Number of communications appear on record to show that the entire land purchased by the sale deeds executed in the year 1989 stood vested in a society called St. Jesus Educational Society and on behalf of the said society an application was made for starting a school on the aforesaid land. A Memorandum of settlement was executed by the aforesaid 17 persons surrendering their rights to the aforesaid society and the said society submitted applications to Municipal Corporation of Delhi and to the State Government for construction of a School on the said land. All the correspondence was made on behalf of the said society by one Shri Ashok Kumar in favor of whom one of the sale deeds executed in 1989 was made. The Standing Committee of the Municipal Corporation of Delhi approved the layout . plan for the primary school. Said Shri Ashok Kumar also filed an application in the proceedings pending under the P.P. Act claiming ownership of the properly in dispute and in support of the said claim relied upon the sale deeds got registered in 1989. The Estate Officer, by his order dated 25.7.1991 decided the proceedings under the Public Premises Act against the Delhi Development Authority holding that the land in question has been purchased by 17 persons, and thereforee, the said land could not be public land. Delhi Development Authority preferred on appeal as against the aforesaid order which is pending in the Court of Additional District Judge, Tis Hazari even as of date.
6. Sometime in the year 1991 the Government of India received a complaint with regard to the alleged sale taking place in the year 1989 on the basis of fabricated documents of the property. Accordingly, a letter was written to the Additional District Magistrate (Revenue). Tis Hazari, to investigate into the matter as to how a no objection certificate in respect of the Government land was issued. In reply to the same the Officer on Special Duty. Land Acquisition Branch informed that a note in the land register in respect of the aforesaid land would take care in the future. On 17.11.1992 the Government of National Capital Territory of Delhi wrote to the Additional District Magistrate (Revenue), Government of India to look into the matter as to how the mutation in favor of 17 persons were recorded in the Revenue Records. Even thereafter 17 sale deeds were executed by 17 persons including Ashok Kumar in favor of respondents 5 to 10 allegedly transferring to 17 bighas and 14 bids was of land by sale deeds executed on 5.4.1995. The said respondents 5 to 10 submitted plans to the MCD for sanction of a group housing for 57 flats and pursuant to the said application the MCD called for a report from the Tehildar and on receipt of the said report sanction was given by the Municipal Corporation of Delhi for construction of group housing for 57 flats. The said sanction for construction was granted on 16.5.1996. Immediately on , receipt of the aforesaid intimation from the Municipal Corporation of Delhi the respondents 5 to 10 started construction on the aforesaid land. On nothing the said alleged unauthorised and illegal activities the Delhi Development Authority wrote to the Municipal Corporation of Delhi bringing to their notice about such unauthorised and illegal constructions being made on the land and also asking for immediate revocation of the plans.
7. On 17.9.1996 respondent 5 to 10 filed a suit being Suit No. 380/1996 in the Court of Senior Subordinate Judge praying for injunction restraining the defendants from interfering with construction on the said land. However, in the said suit the trial court refused to pass any order of injunction. An appeal was filed which was registered as MCA No. 110/1996 and the Additional District Judge dismissed the said appeal by his order dated 22.10.1996. In the meantime one of the present writ petitions being C.W. 3130/1999 was filed by Shri G.L. Tewari, wherein notice was issued on 10.10.1996. It further transpires from the records that the MCD revoked the sanction of the building plans on 10.6.1997.
8. In the light of the aforesaid background facts counsel for the parties advanced their arguments and drew our attention to relevant records. It was submitted by the counsel appearing for the petitioners that the resolution dated 2.1.1943 and the sale deed alleged to have been executed in 1943 in favor of Rati Ram are forged, and thereforee, void and as such no right and title in respect of the land measuring 17 Bighas 14 bids was was derived by Rati Ram nor by the subsequent purchasers including respondents 5 to 10 through the said transfer and the land continued to be public land, and thereforee, all unauthorised constructions made thereon as also the encroachments are liable to be removed and the land in question should be restored back to its original position and should be directed to be maintained for the purpose for which the said land was vested with the Delhi Development Authority. It was also submitted that the various decisions rendered and referred to above and the pleadings of Ram Piari and her son would clearly establish that the said land never vested in Rati Ram and title never passed to Rati Ram as the owner, and thereforee, the respondents 5 to 10 who allegedly purchased the said land sometime in 1995 did not derive any title in respect of the said land, and thereforee, they could not have constructed any building on the said land. In support of his contention the counsel for the petitioners relied upon various documents placed on record as also on the report of the Committee of the Delhi Legislative Assembly which was constituted to probe into various aspects of the multi-storeyed building called Chavan Rishi Apartments in the said Model Town area of Delhi. The said report is dated 4.9.1998. The learned counsel appearing for the Union of India, the Delhi Development Authority and the Municipal Corporation of Delhi supported the contentions of the petitioners and stated that neither and title to the land was derived by Rati Ram or his legal representatives namely - Ram Piari and Kanwal Singh nor any such title or ownership right was derived by the predecessors-in-interest of respondents 5 to 10 who were 17 in number as also by the present respondents 5 to 10, for the land continued to be in the name of the Notified Area Committee. It was submitted by them that after the said land was placed at the disposal of the L&DO; by the notification dated 31.3.1958 the said land vested with the Government of India and now on the Delhi Development Authority by virtue of notification dated 12.7.1974 issued under Section 22 of the Delhi Development Act vesting the said land with the Delhi Development Authority. It was also submitted that the resolution dated 2.1.1943 as also the sale deeds dated 31.5.1943 were forged, and thereforee, on the basis of such forged documents no title could pass to Rati Ram or his successors-in-interest including respondents No. 5 to 10. Counsel appearing for DDA, MCD and Union of India contended that the entire alleged transaction of sale and purchased of the land by Rati Ram, and thereafter, by the 17 persons who were the predecessors-in-interest of respondents 5 to 10 and even by respondents 5 to 10 were vitiated by fraud which is established on record including alleged mutation in favor of Rati Ram made on 28.7.1989 when he was dead, It was submitted that possession and construction on the said land by the respondents No. 5 to 10 are unauthorised, and thereforee, such unauthorised constructions are required to be removed. Counsel for the Municipal Corporation of Delhi submitted that as and when it was detected by the Municipal Corporation of Delhi that sanction of the plan for construction of the building on the land in dispute was obtained by misrepresentation and was accorded without making detailed enquiry with regard to the title of the land the said sanction was cancelled by the MCD.
9. Counsel appearing for respondents 5 to 10 on the other hand submitted that so far the said respondents are concerned there is no evidence on record to indicate that they were parties to the fraud, even if any, committed and thereforee, they are bona fide purchasers of the land without notice of any fraud and thereforee, they are protected under the provisions of Sections 41 and 51 of the Transfer of Property Act. It was submitted that they are bona fide purchasers of the aforesaid land by virtue of sale deeds which are registered documents and that subsequent to the aforesaid purchase they have made improvements by investing about Rs. 8 Crore on the said property, and thereforee, they are entitled to relief atleast in terms of the provisions of Section 51 of the Transfer of Property Act. He also sought to submit that the Union of India cannot claim to be the owner of the land, for such land had vested in the Municipal Corporation of Delhi by operation of law namely - the provisions of the Delhi Municipal Corporation Act, and thereforee, such of the respondents who are bona fide purchasers of the land and who had developed the land and made sufficient improvements are entitled to protection under Section 51 of the Transfer of Property Act. Counsel also sought to rely upon an order of the then Minister for Housing and Urban Development which is also on record and contended that the same is binding on the Government of India and DDA. It was also submitted by him that the respondents 5 to 10 have deposited an amount of Rs. 10.5 crore in this Court pursuant to the orders of this Court dated 21.9.1998 and 22.10.1998 and in the light of the statements made on behalf of the Union of India and the DDA. He submitted that as the amount was deposited towards market price of the land by way of agreement amongst all the contesting parties neither the respondents No. 5 to 10 could be evicted from the land in question nor the superstructure built on the land could be demolished.
10. In the light of the aforesaid submissions of the counsel appearing for the parties the following points arise for our consideration in the present writ petition :
1. Whether the resolution dated 2.1.1943 and sale deed dated 20.5.1943 are forged and Whether Rati Ram had deprived any title to the area of 17 Bighas and 14 bids was by virtue of the aforesaid resolution and the sale deed ?
2. Whether respondents No. 5 to 10 derived any title to the land in dispute namely-10 Bighas and 14 bids was by virtue of the sale deeds executed in their favor on 5,4.1995?
3. Whether there was any vesting of land on the L&DO; at all or the said land vested On the Municipal Corporation of Delhi and whether Delhi Development Authority could have any interest in the aforesaid land
4. Whether the said respondents 5 to 10 could claim protection under Section 41 of the Transfer of Property Act
5. Whether the permission granted by the Municipal Corporation of Delhi and no objection certificate given by the Urban Land Ceiling Authorities in favor of respondents 5 to 10 for construction of buildings in the property in question would validate sale and purchase made by the said respondents
6. Position and effect of the improvements made by respondents 5 to 10 and whether they are entitled to protection under Section 51 of the Transfer of Property Act
7. What is the effect of the order of the then Minister of Housing and Urban Development on the subject matter of the present petition which was passed during the pendency of the present petition in this Court
8. What is the effect of the deposited of amount of Rs. 10.5 Crore and whether such deposit satisfies the entire payment towards market price of the land
Point No. 1 :
11. As indicated above and as disclosed from the records the NAC purchased 7.86 acres of land from Lala Raghubar Dayal for a sum of Rs. 9,200/-on 8.2.1919. It is pertinent to mention that 3.4 acres measuring 17 Bighas 14 bids was was shown to have been sold in favor of Rati Ram for a paltry sum of Rs. 1760/- on 20.5.1943. It was the submission of the counsel appearing for respondents No. 5 to 10 that during the period when the aforesaid land of 17 Bighas and 14 bids was was purchased on 19.5.1943 Second World War was on and thereforee, there was no appreciation in the prices of land. The said submission cannot be accepted, for it cannot be said and believed that there was no appreciation in price of land in Delhi in between the period from 1919 to 1943. Besides, even if it is assumed that there was no appreciation in the price of land from 1919 to 1943 even then the price for the aforesaid 17 Bighas and 14 bids was should have been at the minimum Rs. 4,278/- i.e. the cost price at which the land was purchased in 1919. It can never be accepted that the NAC would have agreed to part with the aforesaid land even below the cost price.
It is established from the records that after the aforesaid land was purchased by the NAC the entire land of 7.86 acres was leased out in favor of M/s Edward Kaventer of Aligarh Dairy Farm at an annual rental of Rs. 500/ for a period of 30 years w.e.f. 1.11.1920. The said period of 30 years of lease expired only on 31.10.1950. The letter dated 20.4.1950 indicates that M/s. Edward Kaventer (Successors) Ltd. requested for extension of lease for a further period of 30 years from 1.11.1950. As a matter of fact a fresh lease deed was executed by the NAC in favor of M/s. Edward Kaventer (Successors) Ltd, on 24.7.1950 leasing out said property to the successor for the period from 1.4.1946 to 31.10.1950. The aforesaid request of M/s. Edward Kaventer (Successors) Ltd. was rejected by the NAC by resolution No. 18 whereby the lease in favor of the said successor was terminated with a direction to handover possession of the land at once according to the lease. Documents placed on record also disclose that ground rent was paid by M/s Edward Kaventer (Successors) Ltd. for the land up to 31.10.1950. A declaration to the aforesaid effect is placed on record appearing at page 499 of the paper book.
The DLF Housing and Constructions Ltd. New Delhi as it was developing the entire Model Town area made an application on 5.5.1954 to the Deputy Commissioner, Delhi for sale of the entire land to it to enable it to develop the same being contiguous to and abutting Model Town area. The said request was turned down by the Deputy Commissioner. These facts lead to one and the only conclusion that the land in question was never sold by the NAC in 1943 to Rati Ram as alleged. In this regard another important aspect needs specific mention. Rati Ram claiming to be in occupation of land measuring 17 Bighas 14 bids was filed a suit being Suit No. 492/1965 on 5.6.1965 against the Union of India and the Land and Development Officer seeking a decree of permanent injunction against the defendants from dispossession. In the plaint filed by Rati Ram he has categorically stated in paragraph 1 of the plaint that he is cultivating the said land since many years as Gair Mrusi tenant under the NAC (Civil Station). On 1.2.1967 Rati Ram made a request to the NAC requesting for a 99 years lease of the entire land claiming to be in possession of the said land since 15 years by maturing and tilling the said land. Said application was dated 1.2.1967. In the proceedings initiated under the Public Premises (Eviction of Unauthorised Occupants) Act as against the heirs of Rati Ram Smt. Ram Piari, widow of Rati Ram filed a written statement wherein in paragraph 4 it was clearly stated that Rati Ram had taken the said land for tilling purposes and after his death she was in possession with other heirs as tenant of the agricultural land and that the said land was tilled and ploughed by her on the same terms and conditions. In the said written statement filed on 14.12.1976 she also confirmed that Revenue records described them as tenants Gair Marusi in occupation of the land measuring 17 bighas 14 biswas. The records of the Public Premises (Eviction of Unautorised Occupants) Act have also been placed on record, From the said records it is clear that Ram Piari on oath affirmed the facts stated in her written statement. These are matters of record which make it crystal clear that no sale of whatsoever nature of the land in question was made in favor of Rati Ram by the NAC in the year 1943 and that the resolution dated 2.1, 1943 and the sale deed dated 20.5.1943 are forged and fabricated. The submission of the learned counsel for respondents 5 to 10 that the land measuring 17 Bighas 14 bids was was purchased through sale deed dated 20.5.1943 by M/s. Edward Kaventer benami in the name of Rati Ram and that Rati Ram did not know about the sale is also far fetched and not borne out by records. It could not be explained to us why the same should have been purchased benami by M/s Edward Kaventer in the name of Rati Ram without his knowledge and consent. No plausible Explanationn could be given by the counsel for such alleged action. Such an Explanationn is also belied on the face of the sale deed. This Court being conscious of the aforesaid fact called for the original register of NAC and the register of the Sub-Registrar. By order dated 6.8.1998 this Court with the consent of the counsel for the parties formulated the following questions on which opinion was sought for from the Central Forensic Science Laboratory after examining the original registers :
1. Whether the Sale Deed dated May 20, 1943 is a genuine document or not
2. How old is the ink used for writing Sale Deed dated May 20, 1943 with reference to the age of ink used in other documents in the register
3. Whether the Paper on which Sale Deed dated May 20, 1943 is executed, has been treated Chemically or by any other mode so as to wash the writing if any, which originally existed on the said papers If answer is in affirmative, can the original writing be retrieved
4. Any other observation in respect of Sale Deed dated May 20, 1943 showing its genuineness or otherwise.
5. Whether the signatures of the President and the Secretary on the Resolution No. 20/1942-43 dated January 2, 1943 and Resolution dated March 11, 1943 of the Notified Area Committee are genuine signatures on earlier and subsequent resolutions in the register)?
6. What is the age of paper on which resolutions dated January 2, 1943 and March 11, 1943 have been set out and how old is the ink used in these resolutions with reference to the age of paper containing other resolutions of the same period and ink used therein
7. Any other matter throwing light on the genuineness or otherwise of the paper containing the resolutions dated January 2, 1943 and March 11, 1943.
8. Whether there is any evidence to show the tampering and/or substituting or papers containing the Sale Deed dated May 20, 1943, resolution dated January 2, 1943 and Resolution dated March 11, 1943 in the two respective registers
In terms of the aforesaid order passed by this Courts the CFSL has filed its report giving its opinion that the said resolution dated 2.1.1943 and the sale deed dated 20.5.1943 are forged documents giving reasons for arriving at the aforesaid conclusion. We have ourselves perused the sale deed and the subject resolution. The deed of sale dated 20.5.1943 ex facie is not a genuine document. A. bare perusal of the same would indicate that the existing English writings in the said sale deed have been written after washing out the original writings by the method of application of some Chemical/physical eraser. Remnants of original writing at some portion are still visible. Application of Chemical substance for washing off the original writings has affected the colour and texture of the paper. The handwriting expert also in his report has highlighted such features. He has also opined that the back ink used in the writing is different and that the same sale deed has been written using two different inks. He has also found that the signatures of the President and the Secretary in the mentioned documents have also been forged. He has also opined that resolution dated 2.1.1943 and 11.3.1943 are also forged and submitted in the proceeding register of the Notified Area Committee. Reasons for the same have been given and on perusal we are convinced that the reasons are cogent and correct.
The aforesaid opinion given by CFSL when read with attending circumstances as enumerated above leads to one irrefutable conclusion that the said documents namely the alleged resolution dated 2.1.1943 of the NAC and the alleged sale deed dated 20.5.1943 in favor of Rati Ram are forged and fabricated documents and made out only with the illegal motive of transferring public land in favor of Rati Ram from whose legal representatives the said land was alleged to have been purchased by 17 persons including Ashok Arora and thereafter by the respondents 5 to 10. We have no manner of doubt in our mind to hold that Rati Ram derived no title nor any ownership right in respect of the subject land on the basis of the aforesaid forged and fabricated resolution dated 2.1.1943 and the alleged sale deed dated 20.5.1943. As because Rati Ram did not derive any title and ownership right in respect of the aforesaid land neither he nor his legal representative could have transferred and passed over any title and ownership right to 17 persons through the sale deeds alleged to have been executed on 26.5.1989 nor could those 17 persons transfer any right in the said land in favor of respondents 5 to 10. It is an established principle of law that no person could give any better title than what he has and that when a person does not have any title he cannot transfer title and ownership of the land in question in favor of the transferee. In the light of the aforesaid findings point No. 1 is answered holding that the resolution dated 2.1.1943 and the sale deed dated 20.5.1943 are forged and fabricated documents and that Rule Ram did not derive any title to an area of 17 bighas and 14 bids was by virtue of the resolution and the sale deed.
Point No. 2 :
12. Rati Ram died on 25.12.1969 but before his death he instituted a suit on 5.6.1935 being Suit No. 492/1965 seeking permanent injunction from dispossession and contending that he was cultivating the land in question since many years as Gair Marusi tenant under the NAC (Civil Station). To the same effect is the pleading of Ram Piari filed on 14.12.1976 that her husband had taken the said land for tilling purposes and after his death she was in possession of the said agricultural land with other heirs. Although Rati Ram died on 25.12.1969 his name came to be mutated in respect of the said 17 bighas 14 bids was in the Revenue records only on 28.7.1989 i.e. after his death. Interestingly, the same land was again mutated on the very same day in the name of his legal representatives namely Ram Piari and Kanwal Singh. Thereafter on the very same day the said land was mutated in the name of 17 persons who had purchased the said land from Ram Piari and Kanwal Singh vide mutation Nos. 413 to 434, pursuant to the sale deeds executed in respect of the aforesaid land on 26.5.1989 by Ram Piari and Kanwal Singh to the aforesaid 17 persons including Shri Ashok Arora. A copy of the said sale deed executed by Ram Piari, widow of Rati Ram and Kanwal Singh son of Rati Ram in favor of Shri Ashok Arora is placed on record. It is disclosed from said sale deed that there is no mention in the said sale deed of the alleged resolution of the NAC dated 2.1.1943 nor any mention was made regarding the sale deed dated 20.5.1943 by NAC in favor of Shri Rati Ram. Non-mentioning of such relevant facts in the said sale deed speaks volumes. These glaring facts stare at us and clearly point out the misdeeds and illegal transfer of public land measuring 17 bighas 14 bids was of land in favor of private parties. Mutation is never made in the name of a dead person. Besides it was necessary for Ram Hari, widow of Rati Ram and Kanwal Singh to mention in the 17 sale deeds executed by them the nature and mode in which they derived and acquired their title to the said land if 17 bighas and 14 bids was of land by the sale deed dated 31.5.1943, if such a transaction had legality and validity taken place.
13. It is stated by counsel appearing for respondents 5 to 10 that so far the said respondents are concerned they cannot be held to be responsible for any fraud committed by any of their predecessors-in-interest. The aforesaid attending circumstances which are borne out from the records as also the forgery and fabrication pointed out hereinabove could have been noticed by any reasonable person wishing to make a bona fide purchase of the land in question. Here is a case where a stand has been taken by the said respondents that in spite of title verification report obtained by them no such misdeed or forgery was indicated and brought to their notice. The said contention cannot be accepted as valid, for a bare inspection and perusal of the original register of the NAC and the register of the Sub-Registrar would have clearly proved and established the forgery committed concerning the said land. The Revenue records maintained in the official course of business also clearly establish that the land in question continued to be in the name of the Government/Notified Area Committee. Jamabandi and Khasra Girdawaries of the Revenue records from the year 1941-42 to 1967-68 would have clearly indicated the aforesaid position. One of the sale deeds by which the respondents 5 to 10 have allegedly purchased the said land from 17 persons including Ashok Arora is placed on record. Although it is the case of the said respondents that they had purchased 10 bighas and 4 bids was of land by the aforesaid sale deeds the sale deeds recite the mode and manner of acquisition of the said land by the predeccssors-in-interest which was on the basis of forged and fabricated documents. In the said sale deeds recitation was made about the forged and fabricated sale deed and the resolution. Any enquiry made in respect of the said allegedly transaction would have revealed the true picture and the fraud. As the predecessors-in-interest of the said respondents 5 to 10 from whom they have alleged purchased the land, derived no title and ownership right in respect of the entire 17 bighas and 14 bids was of land, the respondents 5 to 1.0 cannot by any stretch of imagination claim title and ownership right in respect of 10 bighas 14 bids was out of the said land by virtue of the sale deeds executed in their favor on 5.4.1995. The aforesaid findings answer the aforesaid point framed by us.
Point No. 3 :
14. Counsel for respondents 5 to 10 during the course of his arguments submitted that the said respondents having purchased the land without notice of fraud and being bona fide purchaser and having acted in good-faith are entitled to protection under Section 41 of the Transfer of Property Act. The said section forms as exception to the general rule that no one can convey a better title than he himself has in the property. In a Privy Council case in Ram Coomar v. Mcqueen 11 BLR 46 the provisions of Section 41 were considered and interpreted. It was held in the said decision that it is a principle of natural equity, which must be universally applicable that where one man allows another to hold himself out as the owner of an estate, and a third person purchases it for value from the apparent owner in the belief that he is the real owner, the man who so allows the other to hold himself out, shall not be permitted to recover upon his secret title unless he can overthrow that of the purchaser by showing that either he (the purchaser) had a direct notice, or something which amounted to constructive notice of the real title, or that there existed circumstances which ought to have put him upon an inquiry which, if prosecuted, would have led to a discovery of it. To the similar effect is the decision of Seshumull M. Shah v. Sayed Addul Rashid and Ors., : AIR1991Kant273 on which the counsel for the respondents 5 to 10 placed reliance. It is needless to point out that in order to make out a case the transferee must further prove two things namely - that he made bona fide enquiries to ascertain that the transferor had power to make the transfer, and in addition the transferee must have acted in good faith. In our considered opinion the provisions of Section 41 cannot be said to be applicable to the facts of the present case. No consent either express or implied of the real owner is proved in the instant case. Neither the Union of India nor the Delhi Development Authority on whom the land in question vested had at any point of time expressed their consent either expressly or impliedly projecting the transferors as the ostensible owners of the property. Thus the Union of India and the Delhi Development Authority were not responsible for permitting or creating any ownership in favor of the transferee and thereforee, such protection is not available to the respondents No. 5 to 10. Similar would be the position as against the claim against Municipal Corporation of Delhi. The Corporation never claimed itself as the real owner of the property rather it had taken a stand that the land belonged to Union of India and now on the Delhi Development Authority by vesting. There is also no evidence on record that the Municipal Corporation had ever permitted or given consent, either expressly or impliedly for creating any ownership in favor of the transferee. The further two conditions for application of Section 41 T.P. Act as set out above are also not satisfied in the present case, for in the present case the predecessor-in-interest of respondents 5 to 10 namely - the 17 persons including Ashok Arora and/or the heirs of Rati Ram did not have the power to transfer the land and none of them could be said to be the ostensible owner with the consent of the real owner whether express or implied. It also cannot be said that the said respondents 5 to 10 made bona fide enquiry regarding the status of the land. In the facts and circumstances of the present case we are firmly of the opinion that the provisions of Section 41 are not attracted and the same are not applicable. This submission of the learned counsel for respondents 5 to 10 is without any merit.
Point No. 4 :
15. The land in question was a part of the land which was purchased by the NAC on 18.2.1999 by virtue of the sale deed registered on 11.2.1919. The said land was later on leased out to M/s. Edward Kaventer who continued to be in possession of the same and they paid ground rent for the same up to 31.10.1950. In the Jamabandi and Khasra Girdawaries the name of the NAC/Government continued as owner. By letter dated 31.3.1958 the State Government conveyed the decision of the Government of India, transferring the management and care of the Nazul land within the jurisdiction of NAC (Civil Station). Delhi District Board, Delhi NAC (Fort) and Delhi Municipal Committee to the management and care of the Land and Development Officer and he was asked to take immediate action to take charge of the said land and the records pertaining thereto. The NAC stood dissolved with effect from 1.4.1958 and by virtue of the provisions of Section 516 read with Schedule II of the Delhi Municipal Corporation Act the properties of the Notified Area Committee both movable and immovable vested with the Municipal Corporation of Delhi. Relying on the said provisions the counsel for respondents 5 to 10 sought to submit that in respect of the aforesaid 10 Bighas 14 bids was of land the Government of India could not have claimed any right and tile for the said land vested with the Municipal Corporation of Delhi by virtue of the operation of the provisions of Section 516 read with Schedule II of the DMC Act. The aforesaid submission of the counsel appearing for respondents 5 to 10 was made during the course of arguments only without laying any foundation for such submission in the pleadings filed on behalf of the respondents. Till the time when arguments were heard no such statement was pleaded by the said respondents in any of the pleadings filed in t his court. No such stand was also taken by the said respondents in the suit filed in the court of the Senior subordinate Judge, which was registered as S. No. 380/1996 nor in the representation filed before the Minister for Housing and Urban Development. Even in one of the written submissions filed in this Court by the respondents No. 5 to 10, the submissions was made on the basis that the Union of India is the owner of the land. During the course of arguments, counsel for the said respondents sought to raise the said submission. The Municipal Corporation of Delhi was also made a party in the present proceedings and they were represented by a counsel who during her submission categorically asserted that the Municipal Corporation of Delhi claims no title and ownership right in respect of the aforesaid land. By notification dated 12.7.1974 the Government of India in the exercise of powers under Section 22 of the Delhi Development Act vested about 3.044 acres of land in the DDA for development and maintenance of the land as green. A document has also been placed on record which appears at page 334 indicating that the DDA took possession of the said plot where after proceedings were also initiated by the DDA under the Public Premises (Eviction of Unauthorised Occupants) Act as against the heirs of Rati Ram.
In our considered opinion an issue which is neither pleaded nor urged at any point of time cannot be allowed to be urged for the first time during the course of arguments without any foundation and basis being made out for such arguments. The said respondents, at the time of arguments cannot advance an issue which is not pleaded specifically so as to allow the concerned respondents full opportunity to place before the court all factual details. In absence of such pleadings and also in absence of all material evidence and records the respondents No. 5 to 10 cannot ask for a decision in the matter. Be that as it may, the definite stand of the Municipal Corporation of Delhi is that they claim no title and ownership right in respect of the said land, for it vests with Government of India, who in turn had vested in with the Delhi Development Authority for proper development. The document dated 31.3.1958 also indicates that the Nazul Lands under the jurisdiction of NAC (Civil Station) also were placed under the care and management of Land and Development Officer. Contents of the said letter when read in proper perspective makes it clear and apparent that the land in question was intended to be placed under the management of L&DO; and thereafter it vested in DDA in terms of the notification, and thereforee, the Union of India and the Delhi Development Authority have the right and interest in the aforesaid land.
Point No. 5:
16. Much stress was laid by the counsel appearing for respondents 5 to 10 on the permission granted by the Municipal Corporation of Delhi sanctioning plans for construction of the building at the land in question and also on the no objection certificate issued by the Urban Land Ceiling Authorities. The documents on record clearly indicate that no detailed enquiry was made by the Municipal Corporation of Delhi in respect of the question of title and ownership of the land in question which is admitted by the counsel appearing for the MCD at the time of hearing of the arguments. Similar is the case with regard to the Urban Land Ceiling Authority who had no occasion to deal with the aforesaid aspect of title and ownership right in respect of the property in question. No document is placed on record to indicate that all such permissions were granted after detailed enquiry regarding title of the land. Besides title was claimed on the basis of forged and fabricated documents and as such, such permission granted on the basis of forged and fabricated documents cannot have the effect of divesting the owner of its right and title over the land. On the other hand the entire of 17 bighas 14 bids was is located within the urban agglomeration of Delhi. The said Act which was enacted in 1976 under the Urban Land (Ceiling and Regulation) Act imposed a bar on holding of land in Delhi beyond maximum of 500 sq. Mtrs. The aforesaid land of 17 bighas 14 bids was was far in excess of the limit prescribed, and thereforee, it was incumbent upon each one of the purchasers namely- the predecessor-in-interest of respondents 5 to 10 as also the respondents 5 to 10 to file a return under the Act with the Competent Authority, for they held urban land in excess of 500 Sq. Mtrs. No such steps were taken in the present case, and thereforee, the permission granted by both the authorities were without application of mind. The sanction for building permission granted by the MCD was thereforee, rightly cancelled subsequently on 10.6.1997 by issuing a letter whereunder the Municipal Corporation of Delhi revoked the sanction of the plans given to respondents 5 to 10. This issue, thereforee, is decided against respondents 5 to 10 and we hold that none of the aforesaid permissions given by Municipal Corporation of Delhi or by Urban Land Ceiling authorities could validate the sale/purchase made by respondents 5 to 10 which was otherwise invalid.
Point No. 6:
17. Counsel for respondents 5 to 10 during the course of his arguments vehemently submitted that the said respondents were not parties to any fraud. It was submitted on their behalf that they had purchased the property in question bona fide and through valid documents of sale, and thereforee, they being honest and bona fide purchasers and having acted in good-faith are atleast entitled to get the benefit of the improvements made by them in the property in question by invoking the provisions of Section 51 of the Transfer of Property Act. He submitted that the said respondents 5 to 10 were the transferees of the immovable property and after the transfers were made in their favor they have made substantial improvement in the property believing in good faith that they are absolutely entitled to do so and as such the said respondents 5 to 10 are entitled to be paid for the improvements made or to have the right to purchase the said property at the market value of the said property.
18. In order to get the benefit of the provisions of Section 51 of the Transfer of Property Act a person has to prove three essential features namely - (a) he must be a transferee : (b) he must believe himself to be absolutely entitled to the property, and (c) he must believe in good faith. The said respondents purchased the land in question from the 17 persons including Ashok Arora who in turn allegedly purchased the same from the legal representatives of Rati Ram. It is decided hereinabove that neither Rati Ram nor his legal representatives derived any title and ownership right to the land in question and thereforee, no transfer of such land could have been made by him or his legal representatives in favor of any third party. In the eye of law, thereforee, there was no valid transfer either to the predecessor-in-interest of respondents 5 to 10 namely - 17 persons including Ashok Arora or to respondents 5 to 10 and they were mere trespassers in the land and had no status to the land and thereforee, they cannot be termed as 'transferee' within the meaning of the provisions of Section 51 of the Transfer of Property Act. It is also held above that the said respondents 5 to 10 have not acted in good faith for no proper enquiry was made by them to find out and identify the true nature and status of the land in question before entering into contract of sale and thereforee, they cannot be held to be persons acting bona fide and in good faith. Besides the land was allegedly purchased by the said respondents on 5.4.1995. Permission for construction in the aforesaid land was obtained by the said respondents from the Municipal Corporation of Delhi only on 16.5.1996. As disclosed from the records the said respondents filed a suit in the court of the Senior Sub-Judge on 17.9.1996. The said suit was registered as suit No. 380/1996. The aforesaid suit was filed by the respondents 5 to 10 seeking for permanent injunction against the Delhi Development Authority and Municipal Corporation of Delhi. In the said plaint it is only stated that the said respondents started construction as per the sanctioned plan in the month of May, 1996 and that the employees of the Municipal Corporation of Delhi and Delhi Development Authority started threatening the said respondents that they would stop the construction and get the sanctioned plan cancelled. Accordingly, the aforesaid suit was filed when the respondents No. 5 to 10 knew that there was a cloud over the claim for title, and thereforee, prayed for the relief of permanent injunction. In the said suit an application under Order 39 Rules 1 & 2 of the Code of Civil Procedure was also filed. The said application was however, dismissed by the Senior Sub-Judge by his order dated 23.9.1996. thereforee, as of that date atleast the said respondents 5 to 10 were fully aware that the Union of India as also the DDA have laid their claim regarding title and ownership of the said land but in spite of the said knowledge the said respondents continued with the construction which definitely were at their own risks and liabilities. Even the appeal filed as against the said order was dismissed by the Addition District Judge in MCA 110/1996 by order dated 22.10.1996. Whatever constructions have been raised by the said respondents were illegal and unauthorised, for such constructions have been raised on public land and such permissions were obtained without disclosing the material and relevant facts and that there was also mis-representation of the factual position. The said respondents and thereforee, not entitled to claim any benefit as envisaged under Section 51 of the Transfer of Property Act in the facts and circumstances of the present case.
Point No. 7:
19. Much reliance was also sought to be placed by the counsel appearing for respondents 5 to 10 on the order passed by the then Minister for Housing and Urban Development. A copy of the said order dated 19.5.1999 has been placed on record. A bare perusal of the said order would indicate that the said order was passed by the then Minister on the basis of a representation filed by the said respondents 5 to 10, It is necessary to mention at this stage that on the date when the said representation was filed before the Minister the present case was pending in this Court. Neither any information was given nor any permission was taken from this Court before filing of the aforesaid representation before the Minister. A close look at the said order would indicate that the said order was intended to be an advice concerning the stand to be taken in the case pending in this Court. For in the said order the Minister had stated that the counsel should be instructed to report to the High Court that they would stand by their previous commitment namely on the current market value being paid, the title of the present owners would be recognised, their building plans will be validated and construction will go on. The aforesaid order cannot by any stretch of imagination be construed as on order under Article 77 of the Constitution of India, for the conditions precedent for becoming a valid order of the Government of India under Article 77 of the Constitution, of India were not complied with nor satisfied in the present case. The contents of the said order are at best advice of the Minister. Although at one stage the counsel for respondents 5 to 10 sought to rely upon the same, he later on did not lay much stress on the said order to show that the same is an executive action of the government as envisaged under Article 77 of the Constitution of India. The contents of the aforesaid order and the opinion expressed therein by the Minister were his personal opinions and cannot be held to be conclusive for the purpose of deciding the present case, which we are deciding on the basis of the entire records which are made available before us. Neither the said order was expressed in the manner required under Article 77 of the Constitution nor the said advice was accepted as an affidavit was filed by the Ministry immediately thereafter reiterating the contents of the affidavit filed earlier by the Minister contending that transfer of the land to the respondents 5 to 10 are illegal and that constructions made thereon are not only unauthorised but also illegal, and thereforee to be removed. Thus the said order cannot be construed as an executive action of the Government nor was it binding and conclusive. In this regard reliance could be placed on the decision of the Supreme Court in Gulab Rao Kishan Rao Patil and Ors. v. State of Gujarat, : (1996)2SCC26 . The decision lays down the criteria and conditions for a Government order to be binding and conclusive. It was held that an order of the State Government must be expressed in the name of the Governor and then communicated to the person concerned. It was further held that till compliance of the said pre-requisites an order of the Minister does not become final and binding. In our considered opinion, the ratio of the aforesaid decision is fully applicable herein. The order of the Minister was in the nature of advice and it was not expressed in the name of the Governor, and thereforee, it cannot be treated as final and conclusive. As a matter of fact, even the Union of India itself did not treat the said order as final and conclusive as is apparent from its conduct of filing an affidavit to which reference is made earlier.
Point No. 8 :
20. Counsel for the respondents also sought to submit that by giving various directions on different dates the High Court intended to bring about an understanding between the parties that on the builders depositing a sum of Rs. 10.5 crore their title to the land would be regularised and that they would be permitted to complete the project without any hindrance. In order to appreciate the said contention reference is to be made to the order dated 22.10.1998. Relevant part of the said order is extracted below :
'Mr. L.R. Gupta submits that assuming without admitting that the forgeries were committed as opined in the report sent pursuant to the order dated 6th August, 1998 and without prejudice to their rights and contentions, his clients and prepared to deposit the present market value of the land in this Court. A sum of Rs. 3.5 crores has been deposited by clients of Mr. L.R. Gupta pursuant to orders dated 21st September, 1998.
In modification of the order dated 6th October, 1998, we direct that for the present, the amount be kept in a fixed deposit for a period of six months.
On hearing counsel for the parties, prima facie, we are of the view that at this stage at least a sum of Rs. 10.5 crores shall be deposited towards the tentative market value of the land in question. thereforee, the clients of Mr. Gupta are required to deposit balance sum of Rs. 7 crores, As prayed, we permit them to deposit Rs. 3.5 crores in this Court on or before 31st December, 1998 and the remaining sum of Rs. 3.5 crores on or before 28th February, 1999'.
21. After the aforesaid order was passed an application being C.M. 10955/1998 was filed by respondents 5 to 10 seeking for an order from this Court determining the market value of the land in question as prevalent in April, 1995 when the said land was purchased by the said respondents and also for an order that after such determination of the value the respondents 5 to 10 should be allowed to deposit the said amount in the court and to declare them as owners/bhoomidars of the said land and also to allow them to proceed with the construction of Group Housing Scheme as sanctioned by MCD and to collect installments from the flat purchasers. The said application was considered and disposed of by order dated 12.11.1998 by passing the following order :
'Order dated 22.10.1998 is more in the nature of a consent order. We find no substance in the application. Dismissed'
22. The contents of the application filed by respondents 5 to 10 as also the nature of the order passed by this Court cannot be interpreted to mean that there was an agreement between the parties namely - the respondents 5 to 10, the Government of India and the DDA to receive the market price of the land. As would be apparent from the contents of the order passed by this Court the proposal to deposit the amount came from the counsel appearing for respondents 5 to 10 which deposit was again made without prejudice to the rights and contentions of the parties to the proceedings. We see no agreement between the parties in making the deposit of the aforesaid amount of Rs. 10.5 crores in this Court which led to a settlement/agreement between the parties to receive market price of the land in question. Issue No. 8 framed by us stands answered accordingly. It is true that the aforesaid amount deposited in this Court is lying in this Court in a fixed deposit account earning interest. It is an admitted position that the respondents No. 5 to 10 received advance amount from various persons for sale of the flats which were still under construction. As admitted, the amount deposited in this Court are part of the amount which were received by the said builders namely - respondents 5 to 10 from the flat buyers. The flat buyers were also represented before us and Mr. Rajeev Nayyar appearing for them submitted that under any circumstance the said flat buyers cannot be said to be parties to the fraud and thereforee, their interests are required to be protected by this Court.
23. In the notification, issued by the Government of India vesting the land in question with the DDA dated 12.7.1974 it was specifically stated that the said land vested with the DDA for development and maintenance of the land as green. Although as per Master Plan of Delhi-2001, the land in question could be used for residential use, the land use of the site as per the Zonal Development Plan was primary school. As per the record of the DDA land use of the site has not been changed. In order to take advantage of the aforesaid position 17 persons who allegedly purchased the property from the legal representatives of Rati Ram in the year 1989 and who were the predecessors-in-interest of the respondents 5 to 10 surrendered their right in the said land to St. Jesus Educational Society under a Memorandum of Settlement. On behalf of the said society Shri Ashok Kumar wrote letters requesting for urban land ceiling clearance. The aforesaid position would also thereforee, indicate that the said 17 persons even if they had acquired any right and title to the said 17 bighas and 14 bids was of land they voluntarily surrendered the same to the society which was to start and construct a school on the said land. When the aforesaid factor is also taken notice of it is crystal clear and established from the records that the said 17 persons could not have transferred any right and title in respect of the aforesaid property in favor of respondents 5 to 10 after they had surrendered their rights to the said society under the Memorandum of Settlement. Even on that count the respondents 5 to 10 could not have derived any title or ownership right over the aforesaid land.
24. The land use of the site in question as per the Zonal Development Plan even as of date continues to be primary school, whereas the specific direction of the Government of India to the DDA at the time of vesting of the said land to the DDA was to keep the said land green. Thus in terms of the approved zonal plan the land use could not have been changed and the sanction of the plan for construction of flats was not justified. At the time of vesting the DDA had been specifically requested to keep the land in question green. Under the aforesaid circumstances, construction of flats on the aforesaid land could not have been acceded to and permitted and the permission allowing construction was rightly revoked subsequently. In coming to the aforesaid conclusion we are fortified by the decision of the Supreme Court in Virender Gaur and Ors. v. State of Haryana and Ors., : (1995)2SCC577 .
25. We deem it appropriate to mention that a committee was constituted by the Delhi Legislative Assembly to probe into the aspects of coming up of the aforesaid a multistoreyed building at Model Town. The Committee examined records and received evidence from various Sections of people including officials and representatives of the respondents 5 to 10 and thereafter submitted its report. The committee after discussion of various aspects came to the conclusion that all persons claiming title through Rati Ram i.e. the legal heirs, the purchasers in interest from legal heirs and subsequent purchasers could not acquire any better title than what Rati Ram had and that as Rati Ram did not have any title, all subsequent transactions are void and that the respondents 5 to 10 did not get valid title. It was also found by them that permission given by MCD and Urban Land Ceiling Authority was also illegal and void. We fully agree with the aforesaid conclusions.
26. It was argued on behalf of respondents 5 to 10 and the flat buyers that no public interest would be served by ordering for demolition of the existing structure and instead the builders could be directed to pay the market price of the land to the Union of India and thereafter to regularise the transfer of land in favor of the builders and by permitting completion of the project. Counsel submitted that they have invested about Rs. 8 crore in constructing the flats which remain half constructed as of date. Counsel for the petitioners as also for DDA and MCD during the course of their submissions submitted that court should order for demolition of all such constructions which are made unauthorised and illegally by resorting to fraud and mis-representation even though the builder might have invested a considerable amount. In the context of the aforesaid submissions and in view of the nature of the facts of the case, we are required to give our opinion on the fate of construction made on the subject land. In M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and Ors., : [1999]3SCR1066 , the Supreme Court has pronounced in the following manner :-
'No consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency'.
At another place of the said decision the Supreme Court has stated thus :
'Why should the builder take such a risk when the interim order was specific that the builder will make construction at its own risk and will not claim any equity if the decision in the appeal goes against it The builders is not an innocent player in this murky deal when it was able to get the resolutions of the Mahapalika in its favor and the impugned agreement executed. Now construction of shops will bring in more congestion and with that the area will get more polluted. Any commercial activity now in this unauthorised construction will put additional burden on the locality.
There is no alternative to this except to dismantle the whole structure and restore the park to its original condition.'
To the similar effect that are other decisions of the Supreme Court of which mention could be made of the decision in Dr. G.N. Khajuria and Ors. v. DDA and Ors., : AIR1996SC253 . Wherein also the Supreme Court ordered for demolition of unauthorised construction and also for proceeding against the officer of the statutory body responsible for illegal action.
27. We are bound by the aforesaid observations of the Supreme Court. We are also of the considered opinion that the builders namely respondents 5 to 10 who neither have any title nor any ownership right over the said land made constructions on the land unauthorisedly. No sympathetic consideration could be shown to such persons where the entire deal is shrouded by fraud and mis-representation. Purchase was made by them without making proper enquiry of the Revenue Records and the connected registers. Forgery and fabrication of documents stare on the face of the records and such a murky deal should not receive any sympathetic consideration from the court. Any sympathetic consideration would definitely encourage such builders to violate law and acquire more public land through underhand and, illegal means. Public interest demands strict action in such matters in order to protect public land and clean environment. thereforee, we have no hesitation in our mind in directing, for dismantling and demolition of the entire construction made on the aforesaid land by respondents 5 to 10 and the entire land should be restored to its original condition which we hereby order. The Delhi Development Authority is directed to maintain the said area as green in terms of the notification issued by the Government of India dated 12.7.1974. It is also held that neither Rati Ram nor his legal heirs or the successive purchasers including the respondents 5 to 10 as also the flat buyers derived any right, title or interest either in the land measuring 17 Bighas 14 bids was or in the superstructure built by respondents 5 to 10 on a part of the said land and by this order they are divested of all their alleged rights in the said land and superstructures. Restoration of the greenery in the area shall be completed by DDA within a period of 12 months from today and a report to that effect shall be filed in the Registry of this Court Possession of the property in question is restored to Delhi Development Authority and no obstruction or hindrance shall be caused to Delhi Development Authority by anyone in discharge of its functions in terms of the present order.
28. It is also ordered that the amount which is deposited in this Court by the respondents No. 5 to 10 shall be distributed amongst the flat buyers on probata basis and the same shall be done by Delhi Development Authority upon verification of the claims and counter claims and the balance amount, if any shall be returned to the respondents No. 5 to 10. The Registry shall handover the entire amount lying deposited in this Court including interest to the Director (Land) of the Delhi Development Authority, who is also made responsible for the distribution of the amount in terms of this order.
29. We also feel that this is an appropriate case where the Central Bureau of Investigation should be directed to make an enquiry with regard to the entire transactions including the forgery and fabrication of documents which are proved and established. The CBI shall make Investigation and those who are found responsible for such manipulations and misdeeds of tempering, falsifying and interpolation of official record, shall be proceeded with the accordance with law. In terms of the aforesaid directions and observations both the writ petitions stand allowed to the aforesaid extent.
30. Before parting with the records, we also observe that the writ petitioners have done a commendable job by bringing to the notice of the court the issues focussed. We record our deep appreciation for them for canvassing the cause, (Dasti).