Radhey Sham Vs. Lieutenant Governor and ors. - Court Judgment

V.S. Deshpande, J.

(1) This is an application for a certificate under Article 133(1)(c) of the Constitution that the dismissal of the petitioner's Civil Writ Petition No. 550 of 1969 by a Division Bench of this Court is a case fit for appeal to the Supreme Court. By the said writ petition, the petitioner challenged the order dated 27th June 1969 which the Lieutenant Governor of Delhi purported to make under section 487 of the Delhi Municipal Corporation Act, 1957, on the ground that on the face of it the order was ultra virus section 487 and also invalid for other reasons. The learned Judges of the Division Bench however considered only the question whether the petitioner had a locus standi to challenge the impugned order and held as a preliminary question of law that the petitioner was an utter stranger who had no locus standi to file the petition. The order dismissing the petition raises two important questions of constitntioual law, namely :-

(1)Whether a person in the position of the petitioner is entitled to tile a petition under Article 226 of the Constitution to challenge the virus and legality of an order made by a public authority on the ground that the order is on the face of it ultra virus and illegal; and

(2)Whether the question of the locus standi of the petitioner can be decided as a preliminary question of law without considering whether the impugned order was ultra virus and illegal on the face of it.

(2) The dispute relates to the use of a plot of a land about 750 sq. yards in an entirely non-muslim locality called 'ahata Kidara near Idgah' Delhi situated within the limits of the Delhi Municipal Corporation. The petitioner claims to be ratepayer and a neighbour residing within 30 or 40 yards from it. The respondents are ( 1) Lieutinent Governor, Delhi Administration, (2) Delhi Wakf Board, (3) Union of India, (4) Commissioner, Wakf Board, (5) Commissioner, Municipal Corporation of Delhi and (6) Delhi Development Authority. According to the petitioner, the Delhi Municipal Corporation and the Delhi Development Authority, this is vacant Nazul land of the Government under the management of the Delhi Development Authority. The Secretary of Delhi Wakf Board says that it is wakf property. The Union of India and the Lieutenant Governor contrary to their previous stand now support the Wakf Board though their learned counsel Shri R. Mehta told us that he was instructed not to oppose the present application. The Commissioner of Wakfs did not care to appear. No material was placed on record to show that the land is wakf property. Under section 4 of the Wakf Act, 1954, a survey of wakf property is made by the Commissioner of Wakfs and a report by him is published under section 5. In the present case, no such report of the survey is produced to show that the land is wakf property. Under section 5 of the said Act, every wakf has to be registered at the office of the Wakf Board and under section 26, the Wakf Board has to maintain a register of wakfs showing the particulars of all wakf properties and title deeds and documents relating thereto: There is no entry in the said register showing this land as belonging to any wakf.

(3) On the pleadings and the documents on record, the land appears to be public property. Even Shri D. D. Chawla, learned counsel for the Wakf Board, did not seriously contest the application on the ground that the land was wakf property but argued against it on the assumption that the land was public property. In 1910, the Wilson Survey of Delhi showed the land as an open land vested in the Government. On 18-5-1956 in its Resolution No. 183 the Delhi Municipal Committee approved the said land for being laid out as a childrens' park. The Delhi Improvement Trust, thereforee, requested the Delhi State Government on 7-11-1956 to obtain the approval of the Central Government to the transfer of the land to the Delhi Municipal Committee. The Delhi Development Authority which had in the meantime come into being approved by Resolution No. 132 dated 26-3-1958 that the land be allotted to the Delhi Municipal Corporation (which had in the meanwhile suceeded the Delhi Municipal Committee) for laying out a childrens' park. At this stage, it was found that due to an unauthorised construction made by some Muslim squatters, the land could not be handed over to the Delhi Municipal Corporation.

(4) Under the provisions of Chapter Xvi (Building Regulations) of the Delhi Municipal Corporation Act, 1957, nobody can erect, alter, add to or repair any building except with the previous sanction of the Municipal Commissioner. As no such sanction had been taken for the construction on the land, the Delhi Municipal Corporation, acting under section 343 and 344, first issued a notice to show cause why the unauthorised work should not be stopped on 23-11-1968. Another notice to show cause why the structure should not be demolished was given on 10-1-1969. But none appeared to show cause against these notices. Hence the unauthorised structures were demolished on 26-5-1969 after the following order was passed on 14-5-1969 :--

'......Iam directed to convey the approval of the Lt. Governor for the demolition of unauthorised construction in Masjid Sikandaria, 6515, Idgah Road, near Chamelian Road. Delhi. A compliance report may also be sent for the information of the Lt. Governor. While carrying out the clearance operation care should be taken to ensure that there is no damage done to the mosque. . . . '.

(5) It is allaped that subsequent to the demolition, pressure was brought on the Central Government on the ground that the religious feelings of the Muslim community were hurt by the demolition and, thereforee, the Central Government compelled the Lieutenant Governor to reverse his previous order of demolition. There is no other Explanationn on the record for the impugned order passed under section 487 of the Delhi Municipal Coropration Act by the Lieutinent Governor on 27-6-1969 which is as follows :- Whereas information has been received that certain portions of a building being referred 'to as Sikandaria Mosque were demolished after 26th day of May 1969 by Delhi Municipal Corporation; and that when persons interested in building wanted to restore the demolished portion they could not do for want of necessary sanction for reconstruction.

(6) And Whereas it is necessary that the portion demolished be reconstructed immediately without there being time for any opportunity of showing cause to be given to Delhi Municipal Corportion.

(7) And Whereas no financial burden on the Delhi Municipal Corporation is to be impised.

(8) thereforee, I, the Lt. Governor of Delhi in exercise of powers vesting in me under section 487 of Delhi Municipal Corporation Act, 1957 (66 of 1957) read. with Government of India. Ministry of Home Affairs notification No. 3/6,66-Delhi dated 19-10-1966, hereby direct the Commissioner Delhi Municipal Corporation to forthwith sanction the reconstruction by or on behalf of Delhi Wakf Board of portion demolished to the extent as may restore the shape and position of building as it existed on 26th day of May 1969'.

(9) The main grounds on which the petitioner attacked the above order may be summarised as under :-

(1)Section 487(1)(a) enables the Central Government to issue a direction to the Corporation only when in its opinion any duty imposed on the Corporation has not been performed by the Corporation. The obligatory functions of the Corporation are listed in section 42 while its discretionary functions are given in section 43. None of these relates to the grant of permission for construction of a building. On the other hand, the sanction or refusal of sanction to a proposed building is given by the Commissioner under section 336 of the Act. Sanction to a building may be refused under section 336(2)(e) on the ground that such construction would be encroachment on Government land. Not only, thereforee, it was no duty of the Corporation to accord sanction to the construction on the land in dispute but on the contrary it was the duty of the Corporation to refuse sanction to such structure on the ground that such construction would be an encroachment on the Government land. Consequently, under section 487(1) the Central Government had no power to order the Corporation to give such a sanction.

(2)Under Section 316(2)(e) the only consideration which could be taken into account by the Corporation was that the land belonged to the Government and the sanction, thereforee, had to be refused. The mere fact that the religious susceptibilities of some persons would be hurt is not a consideration which could be taken into account by the Corporation under section 336 particularly when such consideration would be directly opposed to section 336(2)(e). The order of the Central Government was thus based on an extraneous and irrelevant consideration contrary to section 336(2)(e).

(10) The writ petition challenging the impugned order dated 27-6-1969 was, however, dismissed by the learned Judges on the preliminary ground that the petitioner was an utter stranger and had no locus standi to challenge the order.

(11) What is the locus standi of the petitioner in the present case He resides within 30 or 40 yards of the place. He is a ratepayer. He says he is interested in keeping the land an open site and also in the implementation of the resolution of the Delhi Municipal Committee that the land be laid out as a childrens park. He also claims that he is interested in preventing the contravention of the Delhi Municipal Corporation Act, 1957, by the Central Government whereby the land belonging to the Government would be given over to the Walkf Board for the sole use of some persons to the exclusion of the public in general. The question is whether this was a sufficient interest which entitled the petitioner to challenge the impugned order by way of writ petition under article 226 of the Constitution.

(12) Article 226 of the Constitution is the focal point of the greatest impact of the Constitution on the common man. For, it enables an individual to approach the High Courts directly for the issue of an appropriate writ or direction as a relief against the infringement of any fundamental right of the petitioner or 'for any other purpose'. As observed by the Supreme Court in Election Commission, India v. Saka Venkata SubbaRao : [1953]4SCR1144 , the object of including such power in Article 226 was 'apparently to place all the High Courts in this country in somewhat the same position as the Court of King's Bench in England'. The question of the locus standi of the petitioner may, thereforee be considered primarily in the light of the pronouncements of the Supreme Court and the High Courts and secondarily in the light of the analogous English law.

(13) In Calcutta Gas Company v. State of West Bengal : AIR1962SC1044 , the Supreme Court observed that Article 226 'does not describe the classes of persons entitled to apply there under, but it is implied in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right'.

(14) What is the meaning of the term 'legal right' in this context The numerous decisions on this subject are at times conflicting. The reason is that Courts seem to have used the expression 'legal right' in two different senses to describe the interest which must be possessed by a petitioner before he can be granted the extraordinary relief such as ceritorari, prohibition and mandamus, namley :-

(1)A private law right, such as right of property, easement or a right to relief against a tort committed against the petitioner. The infraction of such a right would constitute legal injury or wrong remediable under the rules of private law. The action complained of may amount to a tort for which a suit for damages would be available. The locus standi of a petitioner whoseprivate law right is thus infringed to file a petition under Article 226 is hardly open to question. But if the possession of such a private and personal right as would entitle a person to file a suit against another person is insisted in every case where the relief is sought against an invasion of public interest then much of the utility of public law remedies would be lost and in fact the public law remedies would become unnecessary as the private law remedies available in a suit against a private person would alone serve the purpose of a public law remedy against the public authority.

(2)An interest of a neighbour or other person with a special interest in preventing the commission of an illegal act or an act against public interest by an authority or a person on the ground that the special interest of the petitioner is prejudiced thereby. The invasion of the petitioner's interest does not amount to a direct legal injury to the petitioner for which he can sue for damages under the rules of private law but amounts to an injury to public interest in the prevention of which the petitioner is interested to a greater extent than an ordinary member of the public. The injury complained of being primarily to the public interest, it would not be proper to insist that the petitioner complaining against such public wrong should show that some private and personal right exclusively belonging to him has been impinged upon.

(15) On the contrary, it should be sufficient for him to show that as distinguished from ordinary members of the public he has some peculiar or special interest which is prejudiced by the action complained of.

(16) The first view may be called the narrow or the orthodox view. It is illustrated by decisions, such as the following namely :-

(1)The Queen v. The Guardians of the Lewisham Union (1897) 1 Q.B.D. 498,

(2)Buxton v. Minister of Housing and Local Government (1961) 1 Q.B.D. 278 and

(3)Gregory v. London Borough of Camden (1966) W.L.R. 899.

(17) The Buxton decision is often followed as supporting the orthodox view. It may be pointed out, however, that it was concerned in construing the expression 'person aggrieved' in a particular statute and at page 286, Salmon J. Conceded that 'on the other hand, there is a line of authoritydealing with the prerogative writ of certiorari which suggests that in some cases the words 'person aggrieved' may have a very wide cannotation'. A learned critic has also pointed out the madequacy of the orthodox view on the ground that it is 'based on the erroneous assumption that only a wrong which gives rise to civil actionability within the categories of private law, affords a person a tiltle to apply for a declaration. The court's ruling (in Gregory's case following Buxton which in turn followed Exparte Sidebothem which was a case arising out of a bankruptcy legislation) goes entirely against the line of authorities which have established that a private individual has locus standi to seek declaratory relief with respect to a matter of public import not only where a 'private right' of his is infringed, but also where he has sustained 'special damage' or where he has a 'special interest' in the subject-matter of the action impugned'. [S. M. Thio in (1967) 30 MLR 205 .

(18) Contrasted with the above decisions is a catena of authorities which have established that a private individual has locus standi to seek extraordinary relief when the illegality complained of relates to the invasion primarily of public interest whereby a 'special interest' or 'sufficient interest' of the petitioner is also prejudiced. In this context it is not necessary that a private right of the applicant should have been infringed. The wrong complained of may tssentially consist in the infringement of the right or the interest of the general public. This does not mean, however, that any member of the general public can complain of such injury to public interest. But if an applicant can show that over and above the members of the general public he has a special interest or a sufficient interest to complain against the injury to public interest, then such a person would be held to have a sufficient locus standi to apply under Article 226.

(19) The fullest vindication of the above view, which has at times been called the 'liberal view', is furnished by the Supreme Court decision in Godde Venkateswara Rao v. Government of A.P. : [1966]2SCR172 . It was entirely in the discretion of the State Government to open a rural health centre in such village which would comply with the conditions laid down by the Government. The village Dharmajigudem failed to comply with the conditions and, thereforee, the health centre was opened in the village Lingapalem. A representative of the village Dharmajigudem was, however, held to have locus standi under Article 226 of the Constitution to challenge the order of the Government because the village Dharmajigudem had developed a special interest in the matter which was more than the general interest which every village in the State had in having such a health centre by having deposited money with the Block Development Officer for the opening of the health centre and because of the expectations which had been created in the minds of the villagers of Dharmajigudem that the health centre would be opened there and would continue to be there after it was opened there. In examining his locus standi, their Lordships observed at page 181 as follows :

'THISCourt held in Calcutta Gas Company's case (referred to above) that 'ordinarily' the petitioner who seeks to file an application under Article 226 of the Constitution should be one who has a personal or individual right in the subject-matter of the petition. . , , . .A personal right need not be in respect of a proprietary interest : it can also relate to an interest of a trustee. That apart, in exceptional cases, as the expression 'ordinarily' indicates, a person who has been prejudicially affected by an act or omission of an authority can file a writ even though he has no proprietory or even fiduciary interest in the subject-matter thereof. The appellant has certainly been prejudiced by the said order. The petition under Article 226 of the Constitution at his instance is, thereforee, maintainable.'

(20) Equally apposite examples are the decisions in Dr. N. V. Subba Rao v. The Government of Andhra Pradesh : AIR1968AP98 , Krishna Kali Mallik v. Babulal Shaw : AIR1965Cal148 and The Municipal Corporation for the City of Bombay v. Govind Laxman Savant AIR 1949 Bom 229 all relied upon by the petitioner, the first two of which were merely mentioned as relied on by the petitioner in the order dismissing the petition but were not considered further. In Dr. N. V. Subba Rao's case, the petitioner complained not of any legal injury to his private right but the prejudice to the public interest by the opening of a bone factory in the locality in which the petitioner resided. The petitioner succeeded in persuading the Municipal Corporation to cancel the license for the bone factory but later the Government ordered the restoration of the license though it did not have the power to do so. The petitioner was held to have sufficient interest of his own in the public injury complained of to be able to challenge the order of the Government under Article 226. In Krishna Kali Mallilt's case, A. N. Ray, J. (as he then was) held that the illegal permission granted by the Municipal Corporation to Babulal Shaw was an invasion of the right of the plaintiff to the enjoyment of his own property and that the defendant owed an obligation to the plaintiff to obey the law. This also shows that a neighbour has such interest in challenging the illegal act committed by the Corporation as is higher than the interest of the ordinary members of the general public. In the Municipal Corporation for the City of Bombay's case per Chagia CJ. and Gajendragadkar J., a rate-payer was held entitled to challenge that the tender submitted by Hindustan Construction Company to the Bombay Municipal Corporation was illegal and that the Corporation had no authority to enter into a contract with the Hindustan Construction Company inasmuch as a rate-payer was interested that the money of the Corporation was properly spent and that the Corporation acts according to law.

(21) In Boyce v. Paddington Borough Council (1903) 1 CD 109 a churchyard was an open space. Boyce was a neighbour who erected a building on the land abutting the churchyard with windows overlooking the churchyard. The local authority having control over the churchyard resolved to erect a hoarding to obstruct the access of light to the windows of the building erected by Boyce. It was held that Boyce could sue the local authority without joining the Attorney General as a party for the following reasons, namely :

(1)Insofar as he claimed that he had a right to the access of light from the churchyard to the windows, he was suing in respect of a private and not a public right;

(2)But he could also sue in respect of his right as a member of the public to say that no building shall be put on the open churchyard and if the hoarding was a building, then he would be suing in respect of a public right and the Attorney General would have been a necessary party but for the fact that the special interest of the plaintiff suffered by the breach of a public right.

(22) In Maurice v. London County Council (1964) 2 Q.B.D. 362, Miss Maurice was the owner of the premises situated within 100 yards of an open site belonging to the London County Council on which the Council proposed to construct a block of flats. Miss Maurice naturally preferred the site to remain open. and objected to the construction of the building on the ground that she was an aggrieved person within the meaning of section 52(2) (a) of the London Building Act, 1930. It was regarded that she had a locus standi to make such an objection.

(23) In The King v. Hendon Rural District Council (1933) 2 K.B. 696, the petitioner Chorley successfully challenged a general townplanning . order by the Hendon Rural District Council because he, more than the other members of the public, was prejudiced by it.

(24) In Regina v. addington Valuation Officer (1965) 3 W.L.R. 426, a rate-payer could challenge the mistaken valuation by the local authority though he personally had suffered no damage but his special interest as a rate-payer was prejudiced thereby.

(25) In Attorney General of the Gambia v. Pierre Sarr Njie 1961 Appeal Cases, 617, the judgment of the Judicial Committee of the Privy Council was delivered by Lord Denning who relied upon the decision. Lord Esher in Ex parte Official Receiver, In re Reed, Bowan & Co. (1887) 19 Q.B.D. 174 obsereved at page 634 as follows:-

'The words 'person aggrieved' are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him : but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests'.

(26) As against this weight of authority, Shri D. D. Chawla. learned counsel for the Wakf Board, cited only two decisions, namely, (1) Dr. Rai Shivendra Bahadur v. Governing Body of Nalanda College : (1962)ILLJ247SC and (2) Saghir Ahmad v. The State of U.P. : [1955]1SCR707 . In the first decision, the petitioner could not show that he had any special interest apart from the interest of general public in challenging the appointment of teachers and staff made by the Governing Body of the College. In the second decision, the question of locus standi was not considered at all.

(27) The rationale underlying the theory of locus standi has been well expressed by Prof. S. A. de Smith at page 422 of his 'Judicial Review of Administrative Action', 2nd Edition :-

'ALLdeveloped legal systems have had to face the problem of adjusting conflicts between two aspects of the public interest-the desirability of encouraging individual citizens to participate actively in the enforcement of the law, and the undesirability of encouraging the professional litigant and the meddlesome interloper to invoke the jurisdiction of the courts in matters that do not concern him'.

(28) On the facts and contentions raised by the petitioner, the impugned order would appear to be illegal. We fully appreciate the anxiety of the Government to prevent any unhealthy tension between persons professing different religions but we fell bound to point out that the dispute in the present case does not seem to be concerned in any way with religion. It is a purely civil dispute which should be clamly and dispassionately considered firstly by the members of the public concerned and secondly by the Government itself. At any rate, Courts of law can hardly refuse to consider the challenge to the appearently illegal order of the Government because Government may have some extranequs reason for passing such an order. The claim of the petitioner in this case is that he wants to protect his special interest as a neighbour by challenging the order of the Government and is thereby participating actively in the enforcement of the rule law. He cannot be called either a professional litigant or a meddlesome interloper in any sense. We are, thereforee, of the view that the question whether the petitioner has locus standi to challenge the impugned order is of such general constitutional and legal importance as to make the case fit for appeal to the Supreme Court.

(29) Further, the nature of the invalidity of the impugned order appears to us to have a bearing on the question of the locus stand! itself. In A. T. Duravappah v. W. J. Fernanda (1967) 3 W.L.R. 289 : (1967) 2 AP 337, the order superseding the Municipal Council, Jaftna, had not been preceded by an opportunity given to the Municipal Council to show cause against the proposed supersession. The supersession was challenged by the ex-mayor of the municipal council but not by the municipal council itself. During the hearing of the appeal, their Lordships of the Judicial Committee of the Privy Council raised the question whether the ex-mayor was entitled to challenge the order of supersession. In the judgment delivered by Lord Upjohn for the Judicial Committee, the question was answered as follows at page 298 :

'THEanswer must depend essentially upon whether the order of the Minister was a complete nullity or whether it was an order voidable only at the election of the council. If the former, it must follow that the council is still in office and that, if any councillor, rate payer or other person having a legitimate interest in the conduct of the council likes to take the point, they are entitled to ask the court to declare that the council is still the duly elected council with all the powers and duties conferred upon it by the Municipal Ordinance'.

(30) If the impugned order is found to be a nullity then the petitioner, to use the words of the Judicial Committee, would be a 'person having a legitimate interest' and as such entitled to challenge the order. Their Lordships further observed at page 299 as follows :-

'IT is better. . . . . . to employ the verbal distinction between (a) whether (an order) is truly a nullity, that is to all intents and purposes, of which any person having a legitimate interest in the matter or (b) whether it is voidable only at the instance of the party affected'.

(31) The ex-mayor could have challenged the supersession of the council if the supersession had been a nullity as being ultra virus or without jurisdiction. But he was held not entitled to do so because the supersession was only voidable.

(32) In the present case, thereforee, it may not be possible to decide the question of locus standi as a preliminary question. The English administrative law in this respect may be contrasted, for instance, with the Italian administrative law as pointed out by Dr. Galeotti at page 208 of his book 'Judicial Control of Public Authorities in England and in Italy-A Comparative Study' (1954).

(33) The petitioner seeks to quash a quasi-judicial order which is apparently passed without jurisdiction. The remedy is in the nature of certiorari and prohibition. It is generally thought that prohibition ha; always been issued ex debito justitiae, that is to say, it can be sought by a petitioner as of right. It is true that the Court has a discretion in granting certiorari but the requirements of locus standi for certiorari and prohibition are not rigid. Even if a direction in the nature of mandamus is to be a proper remedy, the special interest of the petitioner would entitle him to seek it. The reference to quo warranto in the petition was obviously wrong and need not be considered.

(34) We, thereforee, certify the case as a fit one for appeal to the Supreme Court under Article 133(1)(c) of the Constitution. We make no order as to costs.