New Delhi: The Supreme Court on Wednesday came
down heavily on economically affluent people, bureaucracy and
civic body officials for mushrooming illegal real estate
construction in the country and ruled file notings by
ministers or officials do not have any legal validity.
"Economically affluent people and those having
support of the political and executive apparatus of the state
have constructed buildings, commercial complexes, multiplexes,
malls etc. in blatant violation of the municipal and town
planning laws, master plans, zonal development plans and even
sanctioned building plans", said a bench of Justices B N
Aggarwal and G S Singhvi in a judgement.
"In most of the cases of illegal or unauthorized
constructions, the officers of the municipal and other
regulatory bodies turn blind eye either
due to the influence of higher functionaries of the State or
other extraneous reasons, the bench observed.
"In most of the cases of illegal or unauthorized
constructions, the officers of the municipal and other
regulatory bodies turn a blind eye either due to the influence
of higher functionaries of the state or other extraneous
reasons, it said.
The apex court also said file notings ministers or
officials do not have any legal validity.
Its ruling came while dismissing an appeal filed by
Sathish Khosla, President of Shanti Sports Club of India which
claimed to run a cricket academy at a village in Delhi.
One of the pleas of the club was that its illegally
constructed sports club should not be demolished as the then
Minister for Urban Development in 1999 had noted in his file
that the construction be regularised.
"A noting recorded in the file is merely a noting
simpliciter (mere) 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 Article 77(1) and
(2) or Article 166(1) and (2)" of the Constitution, the bench
remarked.
According to the two Articles, a government order
becomes a law only if it is issued in the name of either the
President or the Governor, as the case may be.
"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),"
the apex court observed.
The bench said 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.
"Although, the then Minister for Urban Development,
who recorded note dated 8.6.1999, was extremely magnanimous
to the appellants (sports club) when he wrote that the
extensive construction must have been made with full
cooperation of public servants concerned", the bench said.
"Having carefully examined the entire record, we have
no hesitation to observe that the construction of this
magnitude could not have been possible, but for the active
connivance of the concerned public servants who turned blind
eye to the huge structure being built on the acquired land
without any sanctioned plan, the apex court said.
In the present case, the apex court said a plethora of
litigations had been filed before various courts by the sports
club since 1980 and it was a clandenstine attempt to subvert
the law and perpetuate the illegality, 35 years after the
government started acquiring the land for developmental
purposes way back in 1965.
"We have described the transaction as clandestine
because the appellants are conspicuously silent as to how Shri
Satish Khosla came in possession of land in question after 35
years of initiation of the acquisition proceedings and 10
years of finalization thereof.
The bench said "we are amazed to note that after
having secured some sort of transfer of the acquired land in
stark violation of the prohibition contained in Section 3 of
the 1972 Act, the appellants could raise massive structure
comprising cricket ground, tennis stadium, badminton courts,
swimming pool, table tennis room, squash court, etc. and
cottages with modern facilities without even submitting
building plans for sanction by any competent authority and
without being noticed by any of the authorities entrusted with
the duty of checking illegal/unauthorised construction.
"This mystery may perhaps never be solved because the
officers responsible for ignoring the blatant violation of
Section 3 of the 1972 Act, Delhi Development Authority Act and
Building Rules, Regulations and by-laws must have either
retired or moved to higher positions in the administration
where they will be able to block any inquiry in the matter,"
the apex court said while allowing the authorities to demolish
the sports club.
Bureau Report
