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                                                             NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7384 OF 2013 (Arising out of SLP (C) No.24415 of 2009)

Delhi Union of Journalist Cooperative House Building Society Ltd. and others         …Appellants   

versus

Union of India and others         …Respondents

J U D G M E N T

G.S. SINGHVI, J.

1. Leave granted.

2. Whether  the  amendment  made  in  the  Master  Plan  of  Delhi  vide  

Notification dated 20.9.1995 permitting utilization of the sites earmarked for  

Nursery Schools for other purposes is ultra vires the provisions of the Delhi  

Development Authority Act,  1957  (for  short,  ‘the  Act’)  or  is  otherwise  

arbitrary and whether allotment of 1000 sq. yards (in some paragraphs of  

the special leave petition and the documents annexed with it the size of the  

plot  has  also  been  mentioned as  1200  sq.  yards)  of  land earmarked  in  

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Gulmohar Park for Nursery School to  respondent No.4  – Kala Ashram,  

School of Dance and Drama, New Delhi is violative of the provisions of the  

Constitution and/or the Act are the questions which arise for consideration  

in  this  appeal  filed  against  judgment  dated  24.10.2008  of  the  Division  

Bench of the Delhi High Court.

3. Appellant No.1 is a cooperative housing society, appellant No.2 is a  

body representing four cooperative house  building societies  which have  

land in and around the area known as ‘Gulmohar Park’ and appellant No.3  

is a society formed for establishing a Nursery School in Gulmohar Park.   

4. The site in question was initially allotted to Bethal Education Society  

for construction of a Nursery School but the same was not utilized for long  

time. In 1989, the appellants made representations to the DDA for allotment  

of the land in question, but could not persuade the concerned authorities to  

entertain their prayer. Therefore, they filed CWP No.1185/1998 for issue of  

a mandamus to the Delhi Development Authority (for short, ‘the DDA’) to  

allot  the site  to  them for establishing a  Nursery School.  When the writ  

petition was taken up for hearing, it was noticed that the appellants had not  

challenged the notification by which the Master Plan had been amended.  

Faced with the possibility of dismissal of the writ petition on that ground,  

learned  counsel  for  the  appellants  made  a  request  for  permission  to  

withdraw the same with liberty to file a fresh one. The learned Single Judge  

accepted  the  request  and  passed  order  dated  27.1.2000,  the  relevant  

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portions of which are extracted below:

“I  have  perused  the  contents  of  the  aforesaid  amendment  application. It transpires therefrom that the petitioner seeks to  make the said petition, a public interest litigation. In that view of  the matter,  the petition would be required to be heard by the  Division Bench, if the said amendment is allowed.

Counsel  for  the  petitioner  seeks  permission to  withdraw  the  present  petition  in  order  to  enable  the  petitioner  to  file  a  consolidated  writ  petition  before  the  Division  Bench  with  a  further  order  that  the  interim order  passed  on  9.3.1998  be  continued for another ten days. Permission granted.

The petition stands dismissed as withdrawn with a liberty to the  petitioner  to  file  a  consolidated  petition  before  the  Division  Bench. Pending applications stand disposed of accordingly. The  interim order passed by this Court on 9.3.1998 shall continue to  operate for another ten days.”

5. After few days, the appellants filed CWP No.662/2000 for quashing  

notification dated 20.9.1995 issued by the Government of India, Ministry of  

Urban Affairs and Employment (Delhi Division) for modification of the  

Master  Plan and the allotment made in favour of respondent No.4.  The  

Division Bench of the High Court referred to the nature of amendment made  

in the Master Plan and observed:  

“However,  thereafter  the  purpose  came  to  be  amended  by  issuing a notification dated 20.9.95, a copy of which is produced  as Annexure-7. The modification reads as under:-"At page 157  of the Gazette of India Part-II Section 3 sub-section (ii) dated  1.8.1990  under  heading  Nursery  School  and  Kindergarten  School (080) the following is added:

"The  following  neighbourhood  facilities  are  permissible  in  nursery school sites according to the layout plan, where no such  facility is available in the vicinity:

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i) post office ii) community hall cum library iii) Dispensary iv) Health Centre v) Creche and Day care centre vi) Electric sub-station vii) Cooperative store viii) Milk booth ix) Fine arts school x) Maternity home xi) Child Welfare Centre  

(Charitable)

It  is  pointed out  by the petitioner that  if there  is  a  Fine Art  School in neighbourhood, then a plot reserved could not have  been allotted for another Fine Art School.

It is required to be noted that in the instant case, according to the  petitioner he has been trying his level best to get the plot of land  for the purpose of nursery school and he has been writing for a  long time. Copies of such correspondence are placed on record.  It is contended that a wrong has been done to the petitioner by  not allotting the plot for nursery school. It is pointed out in para  no. 11 of the affidavit sworn by Ms.  Asma Manzar,  Director  (Lands), DDA, that the petitioner was advised vide letter-dated  25.10.1989  to  get  its  case  sponsored  from  the  Director  of  Education, Delhi Administration for taking further action, while  informing that the earlier allotment to Bethal Education Society  had been cancelled.

In view of this,  the petition is not required to be entertained.  However,  if  the  petitioner  approaches  the  DDA  with  the  requisite recommendation/sponsorship, the DDA shall consider  its case in accordance with law. The petition is dismissed.”

6. Special Leave Petition (C) No. 18712/2004 filed by the appellants  

was dismissed by this Court vide order dated 27.1.2006.   

7. Unfazed  by  dismissal  of  the  writ  petition  and  the  special  leave  

petition,   the  appellants  made  representation  dated  10/13.2.2006  to  the  

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Chairman,  DDA  for  cancellation  of  the  allotment  made  in  favour  of  

respondent No.4 and for allotment of the site to them for establishing a  

Nursery  School.  Soon  thereafter,  they  filed  Writ  Petition  Nos.3192-

3194/2006 with similar prayer. The writ petitions were disposed of by the  

learned Single Judge by taking cognizance of the statement made by the  

counsel  for  the  DDA  that  the  Vice-Chairman  would  take  appropriate  

decision  on  the  appellants’  representation  keeping  in  view  note  dated  

2.12.1990 recorded by the Minister for Urban Development.  

8. In  furtherance  of  the  undertaking  given  by  the  counsel,  Vice-

Chairman, DDA considered the representation of the appellants and passed  

order  dated  3.4.2006  whereby  he  rejected  the  appellants’  prayer  for  

cancellation of the allotment made in favour of respondent No.4 on the  

ground that  the writ  petition and the special  leave petition filed by the  

appellants for quashing the allotment had already been dismissed by the  

Delhi High Court and the Supreme Court, respectively.

9. The appellants challenged the order of the Vice-Chairman in Writ  

Petition (C) Nos.12122-12124/2006. They relied upon note dated 2.12.1999  

recorded by the then Minister, Urban Development incorporating therein his  

views against the allotment of Nursery School sites for any other purpose.  

10. The learned Single Judge referred to order dated 24.3.2004 passed by  

the  Division  Bench  in  WP(C)  No.662/2000  and  held  that  it  was  not  

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permissible for the appellants  to  resurrect  their challenge to  notification  

dated 20.9.1995 or the allotment made in favour of respondent No.4. As  

regards the Minister’s noting, the learned Single Judge observed that it was  

a  general note  and had nothing to  do with notification dated  20.9.1995  

issued by the Central Government.  Paragraphs 9 to 11 of the order passed  

by the learned Single Judge, which contain the reasons for rejection of the  

appellants prayer are extracted below:

“To this Court it appears that the Respondents are justified in  contending that the prayers  made by the writ petitioners here  already stand rejected by the Division Bench of this Court by the  order-dated 24.3.2004 in Writ Petition (Civil) No.662/2000. The  rejection of the said writ petition meant that the Division Bench  of this court had negatived the Petitioners' challenge to both the  notification dated 20.9.1995 of the Central Government as well  as the challenge to the allotment in favour of Respondent No.4  pursuant to the said notification.   The last line of that order,  which permitted the Petitioners to make a representation to the  DDA for considering its case in accordance with law, was not  meant to  permit the Petitioners  to  raise  the very contentions,  which had been rejected by the court by the dismissal of the writ  petition in Writ Petition (Civil) No.662/2000.  It only meant that  the Petitioners could have sought for the allotment of some other  land,  if available and subject  to  the requirements of the law.  Instead, what the Petitioners appear to have done, is to re-agitate  the  issue  which  already  stood  covered  by  the  Order  dated  24.3.2004 of the Division Bench of this Court. This was clearly  impermissible and not intended by the said order.

The order dated 3.3.2006 of the learned Single Judge of this  Court requiring the DDA to take into account the note dated  2.12.1999 of the minister of Urban Development, has to be seen  in the light of the fact that the said note was not specific to the  allotment of the Respondent No.4. Moreover, the said note was  issued more than 2 years after the allotment made in favour of  Respondent No.4. That note is of a general nature and does not  advert to the notification dated 20.9.1995 issued by the Central  government, the challenge to the validity of which was negatived  

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by this Court and which has not been withdrawn or cancelled by  the Central Government, at least till such time the allotment was  made in favour of Respondent No.4.

The mere fact that the impugned order dated 3.4.2006 passed by  the  DDA does  not  refer  to  the  note  dated  2.12.1999  of  the  Minister of Urban Development, cannot make any difference to  the fact that the challenge to the validity of allotment in favour of  Respondent No.4 already stood negatived by this Court by its  Order  dated  24.3.2004  rejecting  the  Writ  Petition  (Civil)  No.662/2000.  The  order  dated  3.3.2006  certainly  does  not  permit the Petitioner to re-agitate the same issue all over again  either before the DDA or before this court.”

11. The Letters Patent Appeal filed by the appellants was dismissed by  

the Division Bench of the High Court. Some of the observations made by  

the Division Bench are extracted below:

“14.  We  are  further  constrained  by  the  result  of  the  earlier  litigation initiated  by the  appellants  and  the  challenge of  the  appellants  having been  rejected.  The  principal  plea  of  there  being another  Fine Arts  School in the vicinity and,  thus,  the  notification dated 20.9.1995 itself providing that in such a case  there was no need for making another allotment formed subject  matter  of  the  first  round  of  litigation.  The  appellants,  unfortunately, did not succeed and that SLP was also rejected by  the Supreme Court. That issue cannot be re-agitated again.

15. In the second round of litigation, all that could have been  done was that the effect of the note of the then Minister for  Urban Development to be considered. As to what would be the  result of such consideration is itself a moot point in view of the  challenge rejected in the first round of litigation. It is true that  the  note  dated  2.12.1999  of  the  then  Urban  Development  Minister  has  not  been  specifically mentioned  in  the  decision  taken by the Vice Chairman, DDA on 3.4.2006. However, an  important aspect is that the note is general in nature and cannot  really be stated to constitute a substratum for giving rights to the  appellants to agitate the matter in Court. It was the view of the  then Minister  of  Urban Development arising from a  problem  which was noticed by a certain members of Parliament. Not only  

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that the most important aspect of the note is that the note itself  makes it clear that the allotment should “cease forthwith”. The  note  as  made could,  at  best,  have a  future impact  while the  allotment in favour respondent No. 4 stood crystallized on the  same being made, payment being accepted and the possession  having been handed over and much prior in time.”

12. Shri  Ranjit  Kumar,  learned  senior  counsel  appearing  for  the  

appellants argued that the impugned judgment and the order passed by the  

learned Single Judge are  liable to  be  set  aside  because  the High Court  

committed serious error by invoking the doctrine of  res judicata for non-

suiting the appellants. Learned senior counsel emphasised that order dated  

3.4.2006 passed by the Vice-Chairman gave fresh cause to the appellants to  

seek intervention of the Court and the High Court could not have dismissed  

the writ petition and the appeal on the premise that the earlier writ petition  

had been dismissed. Shri Ranjit Kumar then submitted that even though the  

note recorded by the Minister, Urban Development was not translated into a  

formal order of the Government, Vice-Chairman, DDA was duty bound to  

consider the same and cancel the allotment made in favour of respondent  

No.4 because the amendment made in the Master Plan was totally arbitrary  

and unjustified.  Learned senior counsel further argued that the disputed  

allotment  was  ex-facie  arbitrary  and  violative  of  Article  14  of  the  

Constitution  because  the  same  was  not  preceded  by  an  advertisement  

inviting applications from the eligible persons for allotment of the site.  

13. Shri L.N. Rao, learned Additional Solicitor General appearing for the  

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Union of India and Shri Atual Y. Chitale, learned senior counsel appearing  

for respondent No.4 supported the impugned judgment and argued that the  

appellants’ challenge to the allotment of site to respondent No.4 was rightly  

rejected because CWP No.662/2000 filed by them for quashing notification  

dated 20.9.1995 was dismissed by the Division Bench of the High Court  

and the special leave petition was dismissed by this Court.  The learned  

Additional Solicitor General relied upon the judgment in Shanti Sports Club  

and another v. Union of India and others (2009) 15 SCC 705 and argued  

that  note  dated  2.12.1999  recorded  by  the  then  Minister,  Urban  

Development cannot be enforced because the same had not been translated  

into an order of the Government of India.  Shri Atul Y. Chitale argued that  

the High Court rightly refused to entertain the appellants’ challenge to the  

order of Vice-Chairman, DDA because  the principal grievance made by  

them in the matter of allotment of site to respondent No.4 had already been  

negatived.

14. We  have considered  the  respective  arguments  and  scrutinized the  

record.  It is not in dispute that the writ petition filed by the appellants for  

quashing notification dated 20.9.1995 by which the Master Plan had been  

amended permitting use of Nursery School sites  for other  purposes  was  

dismissed by the Division Bench of the High Court and their challenge to  

the allotment made in favour of respondent No.4 was also rejected. It is also  

not in dispute that the appellants carried the matter to this Court but could  

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not succeed and the special leave petition filed by them was dismissed after  

hearing counsel for the parties.  Therefore, the representation made by them  

to the Chairman, DDA for withdrawing the allotment made in favour of  

respondent  No.4  was  clearly misconceived and  the  High Court  did  not  

commit any error by refusing to entertain the appellants’ prayer for quashing  

the allotment of the site to respondent No.4.

15. The appellants  got  an  opportunity to  indulge in another  round of  

litigation because the advocate who appeared on behalf of DDA before the  

High Court volunteered to make a statement that the Vice-Chairman would  

take necessary decision in the light of note dated 2.12.1999 of the Minister  

of Urban Development.  It is impossible for any person of ordinary prudence  

to  accept  the  suggestion  that  the  counsel  appearing for  the  DDA  was  

unaware of the fate of the writ petition and the special leave petition filed by  

the appellants questioning notification dated 20.9.1995 and the allotment  

made in favour of respondent No.4.  This being the position, there is no  

escape  from the  conclusion  that  the  undertaking  given  by  the  learned  

counsel was totally uncalled for and the order passed by Vice-Chairman,  

DDA did not entitle the appellants to file fresh writ petition for questioning  

the  rejection  of  their  representation  or  for  quashing  notification  dated  

20.9.1995 and the allotment made in favour of respondent No.4.

16. The note recorded by the Minister, Urban Development on 2.12.1999  

did not have any legal sanctity and the same could not have been relied  

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upon by the appellants for seeking cancellation of the allotment made in  

favour of respondent No.4 in 1997 because no order was issued on the basis  

of that note  and no notification was issued withdrawing the amendment  

made in the Master Plan vide notification dated 20.9.1995.   

17. In  Shanti  Sports  Club  and  another  v.  Union of  India  and  others  

(supra), a similar question was considered in the context of noting recorded  

by the then Minister, Urban Development for release of the acquired land in  

favour of the appellant.  While rejecting the appellants’ prayer, this Court  

referred to the earlier judgments and held:

“All  executive  actions  of  the  Government  of  India  and  the  Government of a State are required to be taken in the name of  the President or the Governor of the State concerned, as the case  may  be  [Articles  77(1)  and  166(1)].  Orders  and  other  instruments made and executed in the name of the President or  the Governor of a State, as the case may be, are required to be  authenticated in such manner as may be specified in rules to be  made by the President  or  the Governor,  as  the case  may be  [Articles 77(2) and 166(2)]. Article 77(3) lays down that:

“77.  (3)  The  President  shall  make  rules  for  the  more  convenient transaction of the business of the Government  of India, and for the allocation among Ministers of the  said business.”

Likewise, Article 166(3) lays down that:

166.  (3)  The  Governor  shall  make  rules  for  the  more  convenient transaction of the business of the Government  of the State, and for the allocation among Ministers of the  said business insofar as it is not business with respect to  which  the  Governor  is  by  or  under  this  Constitution  required to act in his discretion.”

 This means that unless an order is expressed in the name of the  

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President or  the Governor and is authenticated in the manner  prescribed by the rules, the same cannot be treated as an order  on behalf of the Government.

A noting recorded in the file is merely a noting simpliciter and  nothing more. It merely represents expression of opinion by the  particular individual. By no stretch of imagination, such noting  can be  treated  as  a  decision of the Government.  Even if the  competent authority records its opinion in the file on the merits  of the matter under consideration, the same cannot be termed as  a decision of the Government unless it is sanctified and acted  upon by issuing an order in accordance with Articles 77(1) and  (2) or Articles 166(1) and (2). The noting in the file or even a  decision  gets  culminated  into  an  order  affecting right  of  the  parties only when it is expressed in the name of the President or  the  Governor,  as  the  case  may be,  and  authenticated  in  the  manner provided in Article 77(2) or Article 166(2). A noting or  even  a  decision  recorded  in  the  file  can  always  be  reviewed/reversed/overruled or overturned and the court cannot  take cognizance of the earlier noting or decision for exercise of  the power of judicial review.”

(emphasis supplied)

18. By applying the ratio of the aforesaid judgment to the facts of this  

case, we hold that note dated 2.12.1999 recorded by the Minister, Urban  

Development cannot  be  made basis  for  quashing the allotment made in  

favour of respondent No.4.

19. In the result, the appeal is dismissed.

   …………………………..J.     (G.S. SINGHVI)

                       ………………………….J.

              (V. GOPALA GOWDA) New Delhi; September 6, 2013.   

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