Delhi State Bharat Scouts And ... vs Land & Development Office And Ors.
2011 Latest Caselaw 1720 Del

            IN THE HIGH COURT OF DELHI AT NEW DELHI


                         W.P. (C) 1246/2010 & CM No. 2622/2010

                                            Reserved on: March 9, 2011
                                            Decision on: March 25, 2011


       DELHI STATE BHARAT SCOUTS AND GUIDES ..... Petitioner
                     Through: Mr. R. K. Saini, Advocate.

                         versus

       LAND & DEVELOPMENT OFFICE
       AND ORS.                                    ..... Respondents
                    Through: Mr. Amarjit Singh Chandhiok, ASG
                    with Mr. Jatan Singh, CGSC,
                    Mr. Ritesh Kumar and Mr. Ashish Kumar
                    Srivastava, Advocates for R-1/L&DO.
                    Mr. Jayant Tripathi, Advocate for ASI.

        CORAM: JUSTICE S. MURALIDHAR

       1. Whether Reporters of local papers may be
            allowed to see the judgment?                         Yes
       2. To be referred to the Reporter or not?               Yes
       3. Whether the judgment should be reported in Digest? Yes


                                  JUDGMENT

25.03.2011

1. The Petitioner, Delhi State Bharat Scouts and Guides, a Society

registered under the Societies Registration Act, 1860 and affiliated to the

Bharat Scouts and Guides, challenges the action of the Respondent Land

and Development Office („L&DO‟) in the Ministry of Urban Development

(„MoUD‟), Union of India in cancelling the lease in its favour in respect of

land measuring 9.86 acres at Nizamuddin East (hereafter „the premises in

question‟), ordering re-entry therein and thereafter re-allotting the

premises in question to the Archaeological Survey of India („ASI‟),

Respondent No. 3 herein.

2. The Petitioner states that on 26th November 1941, the Governor General

of India in Council allotted the premises in question to the Petitioner and

executed a perpetual lease deed. The lease deed described the land

admeasuring 9.86 acres as being situated to the north of Humayun‟s Tomb.

Clause 2 (7) mandated that the lessee will not without the consent of the

lessor "carry on or permit to be carried on any trade or business

whatsoever or use the same or permit the same to be used for any purpose

other than that of a camping ground or do or suffer to be done therein any

act or thing whatsoever which in the opinion of the Chief Commissioner of

Delhi may be an annoyance or disturbance to the Governor General in

Council or his tenants in the New Capital of Delhi." Clause 2(5), inter alia,

mandated that within a year of the allotment, the Petitioner would erect on

the land a camp with a chowkidar‟s hut and a storeroom for camp

equipment with all necessary sewers drains and other appurtenances in

accordance with plans prepared and submitted in consultation with the

Archaeological Department and the consulting Architect to the

Government of India and approved in writing by the Chief Commissioner,

Delhi. This Clause further mandated that the lessee would not, without

previous consent in writing of the Chief Commissioner of Delhi or duly

authorized officer, "erect or suffer to be erected on any part of the said

demised premises any building other than and except the chowkidar‟s hut

and a storeroom hereby covenanted to be erected." Clause 2(8) of the

lease deed acknowledged that on the leased land there were certain

monuments which were protected monuments within the meaning of the

Ancient Monuments Preservation Act, 1904. Clause 3 gave the power to

the Chief Commissioner of Delhi in the event of any breach by the lessee

to enter the premises and to remove or demolish any alterations in or

additions to the building erected on the premises. Clause 5 mandated that

no forfeiture or any re-entry shall be affected without the permission of the

Chief Commissioner of Delhi and such re-entry will not be ordered "until

the lessor has served on the lessee a notice in writing." Under Clause 5(b)

if the breach was capable of remedy and upon serving a notice, the lessee

was able to remove the breach, the Chief Commissioner in his discretion

would withdraw such forfeiture on such terms and conditions as thought

proper. Under Clause 6, if the demised premises or any part thereof was

required for a public purpose, it will be lawful for the lessor to re-enter the

premises and determine the compensation in lieu of concession in respect

of premium and ground rent to be paid to the lessee.

3. On 2nd November 1964, a supplementary perpetual lease was executed

and registered whereby the Petitioner agreed to surrender a piece of land

measuring 0.93 acre by 30th April 1963 for the construction of an approach

road to the second Yamuna Bridge. In lieu thereof two pieces of land

measuring 1.319 acres and 1.907 acres were leased to the Petitioner. The

Petitioner states that till 1989 it used the demised premises for organizing

camps, training and other activities for youth and children. In 1989, to

commemorate the birth centenary of Pandit Jawahar Lal Nehru, a cultural

programme, „Bhartiyam‟, was organized by the Government of India on

14th November 1989. It is stated that around 6000 children participated in

the event for which the Sports Authority of India („SAI‟), erected certain

"modules" on the camping grounds for accommodating the participants of

the cultural programme. On conclusion of the Bhartiyam event, the SAI by

a letter dated 29th November 1989 handed over to the Petitioner the

complete charge of the modules and allied infrastructure erected for the

event.

4. The premises in question were inspected on 4th June 2001 by the L&DO

and by a letter dated 18th June 2001 the L&DO notified the Petitioner of

certain breaches on account of misuse and unauthorized constructions.

The three instances cited were that the area was being misused for a „park

land club‟, a swimming pool and that the Petitioner was selling water at

the rate of Rs.120/- per tank at about 15 water tanks daily. Apart from

this, 27 unauthorized constructions were listed. The Petitioner was asked

to remedy the breaches within 30 days. In reply the Petitioner on 2nd July

2001 informed the L&DO that the swimming pool was constructed by the

New Delhi Municipal Council („NDMC‟) out of funds provided by the

Lieutenant Governor of Delhi (Chief Commissioner). The modules had

been erected by the SAI for the Bhartiyam event. The Petitioner pointed

out that "the Government of India being the lessor and Government of

India having spent the amount of construction and the Government of

India being the builder the Petitioner had not raised any unauthorized

construction". The allegation that the Petitioner had sold the water tanks at

the rate of Rs.120/- per tank was denied. The Petitioner informed the

L&DO that if the Ministry of Youth Affairs and Sports („MYAS‟) required

the swimming pool to be destroyed, the Petitioner would request them to

do so since the Petitioner had no authority to destroy government property.

5. On 27th December 2001, the Petitioner addressed another letter to the

L&DO furnishing a cloth mounted plan as required by a letter dated 12th

November 2001. It was again reiterated that the modules, toilet blocks and

bathrooms were constructed by the MYAS under the supervision of a high

power committee constituted by the Prime Minister at the time of

Bhartiyam in 1989. A similar letter was written on 6 th February 2004 to the

Minister MoUD requesting him to intervene in the matter and issue

appropriate orders for settling the issues.

6. By a letter dated 8th November 2005, the L&DO informed the Petitioner

that the premises in question had been inspected on 26 th November 2005

and the following misuses were noted:

"i) 16 modules m/a 16 x 27‟-0" x 27‟-0" + 11664 sq. ft. are being misused for Madhubala Institute.

ii) The unauthorized (U/A) construction reported vide Item No. XVIII below known as Bajpai Hall m/a 998.43 sq. ft. is being used as Madhubala Institute."

7. The notice also listed out 18 instances of unauthorized constructions.

The Petitioner was asked to remove the breaches within 30 days.

8. In reply the Petitioner on 1st December 2005 informed the L&DO that

the unauthorized constructions were in fact erected by the Government of

India. It was then stated as under:

"Due to lack of funds, Delhi State Bharat Scouts & Guides could not undertake regular repairs & maintenance of the modules & other facilities. So the conditions of the facilities started deteriorating. Ultimately, Government of India, Ministry of H.R.D. came to our help & they managed to give some

modules to INTACH. In lieu of sharing these modules for a specified period they agreed to undertake repairs & maintenance of the modules & other facilities.

When INTACH had their own building, they vacated the modules. Then we again faced the same problem of repair & maintenance of modules & other facilities. Then we had to share those very modules with Madhubala Institute affiliated to Guru Gobind Singh University for a specified limited period with the condition that they will repair & maintain the modules & other facilities. If the Department feels that this sharing is not in order & the line set by Ministry of H.R.D., Government of India was not proper, then we ask the Institute to vacate the premises from the next session ensuing from June, 2006."

9. It was further clarified that certain other unauthorized constructions

referred to in that notice dated 8th November 2005 would be dismantled

soon but that certain other structures had been erected to provide

residential accommodation to the chowkidar, plumber, electrician and

sweeper whose services were required round the clock.

10. By a letter dated 27th March 2006, the L&DO informed the Petitioner

that its reply dated 1st December 2005 was not found satisfactory and that

the breaches pointed in the notice dated 8th November 2005 were in

violation of the lease deed. The Petitioner was given another opportunity

of removing the breaches within 30 days failing which the premises would

be re-entered in accordance with Clause 3 of the lease deed.

11. The Petitioner then sent a legal notice dated 22 nd April 2006 stating

that the L&DO in consultation with the Prime Minister‟s office should

constitute a consortium of various Ministries concerning the structures

erected at the time of Bhartiyam and "decide the fate of the structures

forever and absolutely". This was followed by another letter dated 7th

September 2006 sent by the Petitioner in response to the letter of the

L&DO dated 5th September 2006 asking the L&DO to withdraw the order

of re-entry. In the said letter, a mention was made of the fact that there

was a Public Interest Litigation („PIL‟) pending in the Delhi High Court.

Further, in Suit No. 311 of 2004, the High Court had directed that the

status quo be maintained in relation to the premises in question. In the

meanwhile, the Monitoring Committee („MC‟) appointed by the Supreme

Court sealed the camping ground of the Petitioner. By a letter dated 2nd

April 2007 addressed to the MCD, the Petitioner explained that structures

in the form of 153 modules had been erected by the Government of India

in the premises in question to accommodate the participants of the

Bhartiyam event in 1989. The Petitioner admitted that the accommodation

had been shared with INTACH and an MoU had been entered into for that

purpose in 1982. This was since the Petitioner did not have funds to

maintain the facilities. INTACH vacated the premises in 1999. The

Petitioner admitted that it allowed the Madhubala Institute („MBICEM‟) to

share some accommodation on the condition that they would provide

support in the maintenance of modules and other facilities on the same

lines as decided in the case of INTACH by the Government of India. The

Petitioner claimed that some sharing of space is permissible in terms of

L&DO circular dated 10th December 1999 but that the issue pertaining to

the sharing was still pending with the L&DO. The Petitioner assured the

MCD that it would get the premises vacated from MBICEM by 30 th June

2007. The Petitioner also enclosed an affidavit undertaking that it would

stop forthwith the alleged misuse and that it would not deviate from the

terms and conditions stipulated by the MC. The Petitioner prayed that the

premises be de-sealed.

12. On 21st May 2007, the L&DO wrote to the Petitioner as under:

"Sir, I am directed to refer to your letter No. D.S. B.S.G./2006/09 dated 7.9.06 on the captioned subject and to say that you are requested to remove the breaches within 15 days of receipt of this letter or latest by 4th June 2007 and intimate this office so that

further action could be taken in the matter."

13. On 28th May 2007, the Petitioner again assured the L&DO that the

breaches would be removed within two days but that this could only be

done after the de-sealing of the premises. The Petitioner reiterated this

request by a separate letter dated 28th May 2007 addressed to the MCD. It

again reiterated that "the shifting of MBICEM, removal of Tents and

Furniture and compliance of orders of Land and Development Office is

only possible if the Camping Ground is de-sealed at the earliest".

14. A request for de-sealing was again made by the Petitioner on 22nd June

2007. Two reminders dated 29th June 2007 and 1st August 2007 were sent

to the MoUD requesting for de-sealing of the premises. The Petitioner

wrote to the MC on 23rd July 2008 and to the L&DO on 12th August 2008.

15. The Petitioner had also filed an application in Writ Petition (Civil) No.

20229-20232 of 2005 in this Court for vacation of the sealing order of the

MC of the Supreme Court. The said application was dismissed on 27th

November 2008 on the submission made by the L&DO that the property

had been re-entered and that the Petitioner‟s rights as lessee stood

forfeited. This Court observed that it was open to the Petitioner as well as

the L&DO to approach the MC for appropriate directions. Thereafter the

Petitioner made a detailed representation on 31st December 2008 to the

MC. The Petitioner states that it thereafter learnt that the premises in

question were allotted to the ASI, Respondent No. 3. The MC de-sealed

the premises on 15th February 2010. However, upon de-sealing the

premises in question were handed over to the ASI. Hence this petition.

16. On 26th February 2010, a statement was made before this Court by

counsel for the Petitioner that after the premises were de-sealed by the MC

"the Petitioner resumed possession of the premises and has been running

its office." It was stated that the ASI was seeking to demolish the

structures in the premises without prior notice. In those circumstances, this

Court on 26th February 2010 passed a status quo order.

17. At a subsequent hearing on 16th April 2010, this Court clarified that the

status quo order passed by this Court would not prevent the ASI from

carrying out any maintenance work in the two monuments and the

surrounding area. At the hearing on 13th May 2010, the Respondents

disputed that the Petitioner had resumed possession after the de-sealing of

the premises. They produced a copy of the memo drawn up at the time of

de-sealing which showed that in the presence of the officials of the

Petitioner the possession of the premises was handed over to the ASI. With

the counsel for the Petitioner contesting the position, this Court appointed

a Court Commissioner to visit the premises and inform the Court "if after

the de-sealing of the premises on 15th February 2010 there was any activity

undertaken by the Petitioner for running its office in the premises."

Pursuant to the above order dated 13th May 2010, the Court Commissioner

visited the premises and filed a detailed report along with photographs and

a video CD. The Court Commissioner concluded that there was no activity

being undertaken in the premises since a long time.

18. On 31st August 2010, the following order was passed by this Court:

"1. Mr. Saini‟s arguments have been heard in part. He submitted that the structures which have been labeled by the L&DO as „unauthorised‟ have been put up, way back in 1989, by the Government of India for the Bhartiyam festival and that the Petitioner could not have unilaterally removed such structures. Without prejudice to the contentions of the Petitioner, he submits that the Petitioner is not opposed to the structures being removed. Further, he states that the Petitioner will not be opposed to giving up such of the area which is required for preservation of the two monuments located within the property in question.

2. The Court would like the L&DO to consider without prejudice to its rights and contentions in the matter, whether in the facts and circumstances of the

case and in view of the statement made today on behalf of the Petitioner, any alternative space can be allotted to the Petitioner.

3. List on 21st September 2010."

19. However, the counsel for the L&DO informed the Court at the hearing

on 2nd December 2010 that it was not possible to allot any alternative space

to the Petitioner.

20. Mr. R. K. Saini, learned counsel appearing for the Petitioner submitted

that the L&DO has not followed the due process of law in evicting the

Petitioner unceremoniously from the premises in question. The Petitioner

had been complying with the lease conditions and operating the camp in

terms of the lease deed for over six decades. It is submitted that at the time

the premises were sealed, it was the Petitioner who was in possession

thereof. Once the premises were de-sealed, the possession of the premises

had necessarily to be handed back to the Petitioner.

21. It is submitted by Mr. Saini that under the terms of the lease deed the

giving of a prior notice about breaches was not an empty formality. It is

pointed out that in the instant case no cogent reason was given by the

L&DO for rejecting the detailed representations given by the Petitioner.

Even as per the terms of the lease, if the breaches were remediable, and in

this case according to Petitioner they were, the L&DO ought not to have

taken the extreme step of straightway evicting the Petitioner which had

been occupying the premises as a lessee for over 60 years.

22. As regards the sub-letting of the premises to MBICEM, Mr. Saini

submitted that the said breaches had admittedly ceased with the premises

being sealed by the MC. He further pointed out that the transfer of the

premises to the ASI even before formally evicting the Petitioner showed

that this move was pre-meditated and was entirely without the authority of

law. He submitted that the plea of unauthorised construction was untenable

as it had been undertaken by the Government of India itself. He submitted

that without prior permission of the Government of India it would not have

been possible for the Petitioner to remove the said structures. Mr. Saini

placed reliance on the decisions in Bishan Das v. State of Punjab AIR

1961 SC 1570, Express Newspapers Pvt. Ltd. v. Union of India (1986) 1

SCC 133 and State of U.P. v. Maharaja Dharmander Prasad Singh AIR

1989 SC 997.

23. Mr. A.S. Chandhiok, learned Additional Solicitor General („ASG‟)

appearing for the Union of India submitted that the notices to the Petitioner

for breach of the terms of the lease deed after repeated inspections on

different dates were essentially on two grounds. One was for misuse on

account of sub-letting of the premises to MBICEM and second, for the

unauthorised structures. He pointed out that in the replies submitted by the

Petitioner there was no categorical denial of the factum of sub-letting.

Further, there was no indication that the misuse would be stopped. He

submitted that in fact till the sealing of the premises on the order of the

MC of the Supreme Court, MBICEM continued to occupy a portion of the

premises. It was in this context that the Respondents passed the order of

re-entry.

24. Mr. Chandhiok submitted that when the premises were de-sealed by

the Supreme Court MC, it was in the presence of the representatives of the

Petitioner. He produced a note signed by the representatives of the ASI,

the L&DO and the Petitioner dated 15th February 2010 under which the

premises were handed over to the ASI. He pointed out that there was no

protest by the Petitioner at that stage. The Petitioner voluntarily gave up

possession of the premises. Therefore it was not open to the Petitioner to

contend that it had been forcibly evicted and that possession should be

restored to it. The learned ASG pointed out that with the re-entry order

having been passed and for valid reasons as explained hereinbefore, there

was no question of the Petitioner being put back in possession of the

premises.

25. Mr. Chandhiok pointed out that the prayer in this writ petition was as

regards the land to the extent of 9.86 acres, whereas by way of the

supplementary lease deed the total extent of land leased to the Petitioner

was 12.56 acres. Mr. Saini submitted that this was only a technical plea

and should not come in the way of the Petitioner‟s prayer for substantive

justice.

26. The first issue to be considered is whether the Respondent L&DO has

complied with the principles of natural justice in passing the impugned

order of re-entry. Although there were breaches notified by the L&DO

after an inspection on 10th January 1974, it appears that no action was

taken by the L&DO thereafter. What is relevant for the purposes of the

present case is the inspection that took place on 4 th June 2001 leading to

the notification of the breaches by the L&DO to the Petitioner by a letter

dated 18th June 2001. At this stage, misuse noticed was for use of the area

for „park land club‟, for a swimming pool and the allegation that the

Petitioner was selling water @ Rs. 120/- per tank. The notice also listed

the alleged unauthorised constructions.

27. In response to the reply of the Petitioner dated 2 nd July 2001, the

L&DO by its letter dated 12th November 2001 asked the Petitioner to

submit the sanctioned building plan duly cloth mounted in order to verify

the construction. The Petitioner‟s reply dated 27th December 2001 pointed

out that the unauthorised structures were constructed by the Government

of India at the time of Bhartiyam in the year 1989. The swimming pool and

the open air stadium were constructed by the NDMC and Delhi

Administration respectively. The sanctioned plan was not available with

the Petitioner. The above explanation appears to have been accepted by the

L&DO and, therefore, no further action was taken thereafter. Further since

no formal order was communicated, the Petitioner wrote to the MoUD on

6th February 2004 seeking settlement of the issues. There was no reply to

this letter.

28. The subsequent issuance of notice dated 8th November 2005 for

breaches was consequent upon an inspection undertaken of the premises in

question by the L&DO on 26th October 2005. From the counter affidavit, it

appears that prior to this some time in February 2003, the Ministry of

Tourism and Culture, Government of India as well as the Director General

of the ASI had informed the L&DO that the land surrounding the protected

monuments, i.e. Bada Batashewala and Chota Batashewalal, which was

leased out to the Petitioner was being used for commercial purposes in

violation of the lease conditions. The ASI had drawn up a plan for

development of the entire land surrounding Humayun‟s Tomb. The ASI

proposed that lease of the Petitioner be cancelled and the land be

transferred to the ASI for care and maintenance and for development as a

world heritage site in an integrated and aesthetic manner. The ASI

requested the MoUD for transfer of the land measuring 9.86 acres to them

in accordance with the provisions of the Ancient Monuments and

Archaeological Sites and Remains Act, 1958 („AMASR Act‟). Further, by

virtue of two notifications, dated 16th June 1992 and 4th July 1992, no

construction activities could be carried out within the prohibited area of

100 metres radius surrounding the Humayun‟s Tomb and no construction

within the regulated area, i.e., within a radius of 300 metres surrounding

Humayun‟s Tomb could be undertaken without prior permission of the

ASI.

29. When the inspection was undertaken on 26th October 2005 the

breaches noticed were that 16 modules in the premises were being used by

the MBICEM. Further, the Bajpai Hall admeasuring 998.46 sq. m., which

was itself an unauthorised construction, was also being used by the

MBICEM. The other breaches related to other unauthorised constructions.

30. The reply dated 1st December 2005 of the Petitioner to the said notice,

admitted that the Petitioner had allowed the MBICEM to use the premises

in question. There was a clear admission that this was done without prior

permission of the lessor. The reply also did not give any assurance of

stoppage of the said misuse. The reply was in fact equivocal inasmuch as it

was stated that "if the Department feels that this sharing is not in order &

the line set by Ministry of H.R.D., Government of India was not proper,

then we can ask the Institute to vacate the premises from the next session

ensuing from June, 2006."

31. It is not surprising, therefore, that the L&DO did not find the above

reply to be satisfactory and required the Petitioner by the notice dated 27th

March 2006 to remove the breaches. Further, the reply dated 22nd April

2006 by the Advocate for the Petitioner made no reference whatsoever to

the misuse of the premises by sub-letting it to the MBICEM. The breaches

remained unremedied. Consequently, the re-entry order was passed on 25th

May 2006.

32. Given the above exchange of correspondence where there were

sufficient notices issued to the Petitioner for removal of the breaches and it

failed to do so, no fault can be found with the order of re-entry with effect

from 25th May 2006. It cannot be said that in arriving at the said decision

the L&DO acted in violation of any of provisions of the lease deed much

less in violation of the principles of natural justice.

33. It appears that some of the employees of the Petitioner had filed Suit

No. 311 of 2004 in which a status quo order had been passed. On that

ground the Petitioner on 7th September 2006 wrote to the L&DO

requesting it to "withdraw the order of re-entry and issue terms for

withdrawal of re-entry order." From the letter dated 7th September 2006, it

is plain that by this time the Petitioner was aware of the order of re-entry.

The letter dated 7th September 2006 in fact refers to the L&DO‟s letter

dated 5th September 2006. The second aspect is that this letter dated 7 th

September 2006 of the Petitioner also makes no reference to the misuse on

account of the MBICEM occupying the structures. The third aspect is that

despite the re-entry order the Petitioner at that stage did not chose to

challenge the order. This position obviously continued till the sealing of

the premises by the Supreme Court‟s MC on 29th March 2007.

34. Interestingly, the affidavit dated 2nd April 2007 furnished by the

Petitioner to the MCD assures that "the alleged misuse of the above

mentioned premises will be stopped forthwith and no further extension

will be sought on any ground whatsoever nor will deviate from the terms

and conditions agreed before the monitoring committee." The affidavit

was furnished along with a letter of the same date, i.e. 2nd April 2007,

addressed to the MCD in which the Petitioner stated: "we will get the

premises vacated from MBICEM by 30.06.07." It is perhaps in light of the

above undertaking that on 21st May 2007, the L&DO again requested the

Petitioner to remove the breaches within 15 days. This led to the Petitioner

writing on 28th May 2007 that it would remove the breaches within 15 days

of the de-sealing of the premises. It is only by the letter dated 28th May

2007 that the Petitioner informed the MCD as under:

"As per instructions from Hon‟ble Monitoring Committee MBICEM applied and submitted affidavit to your good office for de-sealing the premises and also agreed to vacate the Camping Ground within the specific period.

The Portion being used by MBICEM was de-sealed with the condition that they will have to vacate the premises before 30.06.07. The institute is ready to shift to the new premises but furniture and other equipment cannot be shifted because the main gate of the Camping Ground is closed and sealed. Copy of the letter of MBICEM is attached."

35. On 22nd June 2007, the Petitioner wrote to the L&DO stating as under:

".....MBICEM has vacated the 90% of the premises occupied by them. The Bajpai Memorial Hall is completely vacated and removed the equipment and material.

The Almeria‟s and big size furniture is yet to be removed as the main gate of the camping ground is locked & sealed.

The MBICEM vide their letter no. MB/17-27/2006-07 dated 19.6.2007 requested the Hon‟ble Monitoring Committee to

De-Seal the main gate for two days so that they can remove the Almeria‟s & big furniture etc. lying there."

36. This was followed by another letter dated 29 th June 2007 from the

Petitioner to the L&DO stating that MBICEM has completely vacated the

premises including the Bajpai Memorial Hall. There were repeated letters

written by the Petitioner thereafter on 1st August 2007, 23rd July 2008 and

12th August 2008 to the L&DO and to the MC requesting for withdrawal of

the re-entry order and for de-sealing of the premises in question.

37. While it is true that the L&DO did not reply to the above letters, its

stand was made clear in proceedings in this Court in Writ Petition (Civil)

No. 20229 of 2005 on 27th November 2008. While rejecting an application

being CM No. 13650 of 2008 filed by the Petitioner for de-sealing of the

premises, this Court passed the following order:

"27.11.2008 CM No. 13650 OF 2008 At this stage we are not inclined to pass any order on this application. It appears that the property was sealed under the orders of the Supreme Court Monitoring Committee (SCMC) and an application has been moved by the ex-lessee for vacating that order. The stand of the land and development officer (Land DO) is however that as the property has been re- entered and it no longer stands in the name of the ex-lessee,

all rights of lessee stand forfeited, the ex-lessee is not entitled/authorised to request for de-sealing of the premises. It is open for the ex-lessee as well as the land DO to approach the SCMC for appropriate directions. It is made clear that we have not expressed any opinion on the merits of the case.

The application is rejected."

38. Learned ASG has rightly pointed out that whatever may have been the

doubts earlier, the above order made it clear that the L&DO was not

willing to recall the re-entry order and that the property in question no

longer stood in the name of the Petitioner.

39. The action of the L&DO in allotting the premises to the ASI on 30th

November 2009 has to be seen in the above light. The Petitioner clearly

did not seek any legal remedy as regards the re-entry order prior to that

date. It made representations to the MC of the Supreme Court on 31st

December 2008 requesting for de-sealing.

40. The relevant notings on the file leading to the de-sealing of the

premises have been placed on record. The first is a noting of 3rd July 2007

of the office of the MC about a letter dated 19th June 2007 received from

the L&DO requesting the MC not to de-seal the premises on the request of

the Petitioner as the premises did not stand in the name of the Petitioner

any longer. The other is a noting of 12th February 2010 of the MC that the

L&DO had forwarded a letter dated 10th February 2010 to the MC

requesting it to de-seal the premises north of Humayun‟s Tomb measuring

12.156 acres "for transferring the same to ASI." The MC approved the de-

sealing of the premises "except the temporary structure in which Aap Ka

Tent House articles are lying." The noting further is to the effect that "the

Bharat Scouts and Guides have agreed to remove their articles etc. within

two days of de-sealing (Member M/C spoke to Mr. R.S. Saini, Hon‟ble

State Secretary of Bharat Scouts and Guides on 10th February 2010 over

telephone)." The MC further noticed that "L&DO will ensure the recovery

of misuse charges from Bharat Scouts and Guides. The premises be de-

sealed on 12th February 2010 when ASI and L&DO officers are present."

41. It appears, therefore, that it was with the full knowledge of the

Petitioner that de-sealing of the premises took place in the presence of the

Petitioner. Further, the Petitioner appears to have consented to the de-

sealing of the above premises in the aforementioned manner. The

subsequent noting of 15th February 2010 when the de-sealing actually took

place also shows that it took place in the presence of the Petitioner.

42. The above developments have also to be seen in light of the

explanation given by the L&DO in its counter affidavit of the need to

preserve the entire area surrounding the Humayun‟s Tomb free from

encroachment and misuse. Viewed in that light, it is not possible to

conclude that the action of the L&DO was arbitrary or unreasonable.

43. The handing over of the premises to the ASI on 11th November 2009

was after the re-entry order had been passed in the circumstances

explained hereinbefore. In view of sealing of the premises by the MC

under the authorisation of the Supreme Court, it is not possible to hold that

the L&DO forcibly evicted the Petitioner. With the Petitioner having been

in possession in the above circumstances, and with the re-entry order not

having been set aside prior to the de-sealing, the handing over of the

premises after de-sealing to the ASI, in the presence of the Petitioner,

without any protest from the Petitioner, cannot be said to be illegal. There

was no obligation on the L&DO to put the Petitioner back in possession

when the MC de-sealed the premises on 15th February 2010.

44. The fact remains that till sealing of the premises by the MC, the

breaches had not been removed. The misuse by the MBICEM was perhaps

stopped while the premises were sealed. But this was at a time when the

re-entry order had already been passed.

45. For the aforementioned reasons, this Court does not find any merit in

this writ petition and it is dismissed as such, with no order as to costs.

S. MURALIDHAR, J MARCH 25, 2011 ha/ak