JUDGMENT Pradeep Kant, J.
1. U.P. Badminton Association, a registered body, questions the legality and validity of the order dated 23rd August, 2005, passed by the Vice-Chairman, Lucknow Development Authority (hereinafter referred to as the L.D.A.) as well as the order dated 20th August, 2005 passed by the State of U.P. by means of which the lease granted to the petitioner in respect of the land in question by the L.D.A. has been predetermined in pursuance of the direction Issued by the State Government contained in letter/order dated 20th August, 2005. The two orders have been annexed as Annexures-1 and 2 to the writ petition The writ petition was filed and was taken up for orders on 25th August, 2005, with the allegation that the respondents have already approached the premises for demolishing the existing constructions and there was imminent threat to the existing constructions of being demolished. Learned Advocate General, Sri Virendra Bhatia, who appeared for the State, while asking for one week's time to file counter-affidavit, gave an undertaking that the existing constructions, as it stands on the date, would not be demolished. This Court, therefore, passed an interim order for protecting the interest of both the parties, directing that no demolition shall be made of the existing constructions and the petitioner shall also not raise any further construction and status quo, as it exists today on the spot, shall be maintained by the parties.
2. A counter-affidavit has been filed by the State as well as by the L.D.A. A supplementary-affidavit has been filed by the petitioner and a supplementary counter-affidavit has been filed by the L.D.A. A rejoinder-affidavit has also been filed by the petitioner.
3. Since the matter was shown to be of grave urgency, in view of the fact that an international event, namely, Syed Modi Memorial International Prize Money Badminton Tournament has been proposed to be organized by the U.P. Badminton Academy in the premises in question, where constructions are going on, from 13th to 18th December, 2005 and the affidavits have been exchanged, we, therefore, with the consent of the parties' counsel, have proceeded to decide the writ petition finally.
4. For a clear understanding of the issues involved, it would be apposite to put on record that the petitioner is an Association registered under the Societies Registration Act, 1860 having Ha Registered Office at F-3B. River Bank Colony, This Association was set up with the object of encouraging, promoting and developing the game of Badminton in the State of Uttar Pradesh and in order to achieve its object the Association had conceived a project of setting up a Badminton Academy at Lucknow in which Badminton players could be imparted comprehensive advanced coaching and training of international standard so as to produce Badminton players who could represent the country in competitions organized worldwide. With the aforesaid avowed object, the Association approached the State Government in the year 1999 for providing land for construction of Badminton Academy. The proposal was considered by a Committee under the Chairmanship of the then Chief Secretary, consisting of Secretary, Food and Civil Supplies, Secretary, Finance and Principal Secretary, Sports, Government of U.P., Secretary, Lucknow Development Authority, Director of Sports, U.P. and Deputy Director of Sports, U.P. The Committee decided that the Lucknow Development Authority shall provide land for construction of Badminton Academy to the petitioner for which the sale consideration shall be paid by the State Government towards the costs of the land. This decision was taken on 17th February, 1999. In pursuance of the aforesaid decision of the Committee, a Government order was issued on 21st August, 2000 by virtue of which a sum of Rs. 1.0239 crore was released by the State Government in favour of the L.D.A. for providing 10 acres of land in Vipin Khand, Gomti Nagar, Lucknow.
5. There is no dispute between the parties that the aforesaid Government order dated 21st August, 2000 was issued as an outcome of the deliberations of the Committee headed by the then Chief Secretary, rather it is the case of the respondents also that the land in question was provided to the petitioner Association for establishing the Badminton Academy.
6. The aforesaid Government order stipulated a condition in para 3 of the order that in the matter of establishment of Badminton Academy all recurring and non-recurring expenses shall be borne by the petitioner Association and that the construction work would be done as per norms laid down by the L.D.A. A time period of two years was provided to the Association for establishing the Badminton Academy otherwise the State Government will take back the land from the Association. The relevant condition is being reproduced below.
Badminton Akadmi ki sthapna men nihit samast avartak evam anavartak vyaya Uttar Pradesh Badminton Sangh, Lucknow dwara vahan kiya jayega. Nirman karya Lucknow Vikas Pradhikaran dwara nirdharit manak ke anusar hi kiya jayega. Uttar Pradesh Badminton Sangh dwara Badminton Akadmi ki sthapna do varsh arthat 31.3.2002 tak poorna kar Ujayegi anyatha sthiti men shashan dwara Uttar Pradesh Badminton Sangh se bhwni vaapas le li jayegi.
7. It is the admitted case of both the sides that construction work over the land in question had already commenced and certain structures have already been made in which substantial amount has already been spent. However, a dispute has been raised by the L.D.A. regarding the quantum of the sum spent, which, according to the petitioners, is Rs. 3.25 crores as against the value of the construction estimated by the L.D.A. of approximately 1.70 crores.
8. The fact remains that a substantial amount has already been spent on constructions being made and the work of construction Is in progress.
9. It has been brought on record by the petitioners that the structure which has been set up, is in accordance with the international standards laid down by the Badminton Association of India, which requires that there should be 5-6 wooden courts under one roof. In fact, the proposed Syed Modi Memorial International Prize Money Badminton Tournament having a Prize' Money of US $ 30000 has been allotted to the U.P. Badminton Association with the condition that there should be 5-6 wooden courts under one roof, which is evident from the letter issued by Badminton Association of India to the petitioner Association.
10. Alongwith the supplementary-affidavit, the photographs of the existing constructions have also been placed on record by the petitioners and it has been stated that the structure of first phase has already been raised and all that is now required to be done is to raise pre cast iron trusses and complete the roofing and finishing of the Halls.
11. The State Government in its counter-affidavit has not disputed the extent of construction said to have been made nor the L.D.A. has refuted the same except that the L.D.A. has said that the amount spent has been shown In excess than the actual amount which has been spent.
12. The impugned orders, namely, the Government order dated 20th August, 2005 and the orders passed by the L.D.A. dated 23rd August, 2005, explicitly and overtly have been passed apparently on the violation of the condition contained in Clause 3 of the Government order of 2000, i.e., failure on the part of the petitioner Association to comply with the condition that Badminton Academy would be established by 31st March, 2002, as it has been brought to the knowledge of the Government by the L.D.A. that the Association has not been able to complete the construction work and the Academy has not been fully established within the aforesaid period and, therefore, the Government has decided to revert back the land. The order of the L.D.A. passed by the Vice Chairman is only the compliance of the directive of the State Government in the order dated 20th August, 2005, as a corollary of which, the lease has been predetermined.
13. Few more facts alongwith the dates which are relevant for the controversy are that in pursuance of the decision taken by the State Government to provide land to the petitioner Association, a lease deed was executed between the L.D.A. and the Association on 15th February, 2001. The building plans were submitted for sanction by the Association to the L.D.A. on 13.7.2001, i.e., within five months from the date of execution of the lease deed. The building plans were sanctioned on 24th November, 2001, i.e., after four months of the submission of the building plans and the period of validity of the building plans was upto 14th February, 2006.
14. After sanction of the building plan, the construction work started on the project. Upto 17.2.2003, Rs. 140 lacs which was received by the fund provided by the Members of Parliament was spent. As there was delay in release of the fund by the Government of India, the work of construction was hampered for a while. Nevertheless after the General Elections, 2004, the matter was again taken by the Government of India and after the series of meetings held at New Delhi, on 13.5.2005, it was decided by the Ministry of Statistics and Programme Implementation, Government of India to give approval for release of balance funds for construction of Badminton Academy at Lucknow, which Included construction of Indoor Badminton Stadium, Press Enclave, Dressing Rooms for players and VIPs, Administrative Block, Retiring Rooms, Rooms for Coaches, Mess and Dining Hall for Hostel and sitting arrangement for spectators.
15. It appears that in the meantime, the State Government required the petitioner Association to part away with an area of 2000 sq. mts. of land for the construction/ expansion of Dr. Ram Manohar Lohia Park. The petitioners agreed to the request of the State Government for exchange of 2000 sq. mts. open land on which no constructions were raised and to have that much of area on the other side of the land and in pursuance of the aforesaid agreement, an exchange deed was registered on 11.3.2005 in which the terms and conditions of the registered lease deed dated 15.2.2001, were reiterated specifically laying down that the aforesaid 2000 sq. mts. of land was exchanged as per the exchange deed dated 11.3.2005.
16. The exchange of the land necessitated the petitioner to file a revised building plan. The petitioners accordingly submitted a revised building plan on 15.3.2005, which was sanctioned by the L.D.A., vide communication dated 4.4.05 with the stipulation that the permission would be valid upto 4.2.2006 in accordance with the provisions of Urban Planning and Development Act, 1973 (hereinafter referred to as the Act) and the Rules framed thereunder.
17. While the construction work was in progress, the State Government again suggested the Association for parting away with the entire land, asking them to surrender the entire land for expansion of Ram Manohar Lohia Park, where Library, Reading Room and Conference Room were to be constructed for enhancing the utility of the Park. This proposal was reduced Into writing, vide letter dated 25.5.2005, which recited that the Badminton Academy was to be established within two years, namely, upto 31st March, 2002, otherwise the land was to be reverted back to the State Government and that it has come to the knowledge of the State that the construction work has not yet been completed and the Academy has not been fully established, therefore, the L.D.A. has proposed that alternative land be allotted to the Badminton Academy and on the constructions raised by the Academy, the proposed work of Lohia Park be completed. It was proposed that the land adjacent to the Park in the Green Belt be taken back and the Academy be given the land at an alternative place.
18. A report was immediately called for by the State Government on the aforesaid proposal from the Director, Sports, U.P. and the President of the Association.
19. The petitioners replied to the said proposal on 8th June, 2005, wherein the facts regarding the steps taken and the reason for delay in completing the construction work were explained namely, because earlier the funds were not released by the Government of India, which were released on 17.5.2005 and In the meantime, the exchange of 2000 sq. mts. of land was effected on the desire of the State Government for construction and expansion of Lohia Park and thereafter revised building plans were submitted which were sanctioned only on 17.3.2005. In this reply, it was specifically mentioned that the work of establishing the Badminton Academy has already been completed and that the complete structure of Indoor Stadium has also been made and only laying of the roof and finishing work is remaining and an amount of Rs. 3.25 crores has already been spent.
20. The reply showed that the Association was not prepared to surrender the land and for that matter, it also mentioned that earlier also 2000 sq. mts. of land has been taken for the purpose of Lohia Park from the land originally transferred to the petitioners and that under the circumstances, when constructions have been raised of such a large magnitude, there would be no justification for any further exchange or surrender of the entire land, more so when an international event is to be hosted by the Academy in December, 2005, itself, i.e., in very near future. It was thereafter that the Government issued the Government order dated 20th August, 2005 saying that in terms of the Government order dated 21st August, 2000, the land be reverted back.
21. It may be stated at the outset that the learned Counsel for the State, Sri S.A.H. Rizvi, Chief Standing Counsel as well as Sri Umesh Chandra, senior advocate, appearing for the Lucknow Development Authority, categorically stated that even if the lease has been cancelled by the L.D.A., the respondents, namely the State/L.D.A. cannot take forcible possession of the land in question, as that can be done only by following the process of law, namely, by Initiating proceedings under the provisions of U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972 and, therefore, the present writ petition is not maintainable but also candidly accepted that the validity of the order of cancellation of lease would not be open to scrutiny in the aforesaid proceedings. We thus proceed to test the validity of the order of cancellation of lease.
22. In regard to the challenge made to the impugned order of cancellation of lease, learned Counsel for the L.D.A. has raised a preliminary objection that in terms of Clause 13 of the registered lease deed dated 15.2.2001, which reads as under, the petitioners cannot maintain a writ petition, as it has the remedy of approaching the arbitral forum.
That in any case at any time the lessee shall not be entitled to claim any damage or compensation in any manner against the lessor in respect of any terms and conditions or anything arising out of the contents of the present document or for any other purposes and all disputes, if any, between the parties shall be decided by way of arbitration.
23. Further argument is that in view of the Arbitration and Conciliation Act, 1996 the petitioners would also be entitled to move an application before the District Judge asking for grant of interim measures under Section 9 of the Act and, therefore, the petition which arises out of the alleged breach of contract, or the violation of the terms of the lease, is not maintainable. Reliance has been placed upon the case of Smt. Rukmanibai Gupta v. Collector Jabalpur and Ors. , wherein it has been laid down that an award passed in an arbitration proceedings has to be challenged under the Act and relief under Article 226 of the Constitution would be barred.
24. This argument has been specifically refuted by the learned Counsel for the petitioner, Sri Prashant Chandra, and it has been asserted that Clause 13 of the registered lease deed would not be attracted in the instant case and that in any case there is no absolute bar for the Court to entertain the petition under Article 226 of the Constitution even if the alternative remedy of arbitration is available.
25. The bar of alternative remedy is a self imposed restraint by the High Court which requires that where speedy, efficacious and alternative forum are available for settlement of a dispute, the High Court should be loath in entertaining the petitions for resolution of such disputes under Article 226 of the Constitution.
26. It is no gainsaying that the bar of alternative remedy is not an absolute bar and it depends upon the facts of each and every case, as to whether the discretion should be exercised in entertaining the petition under discretionary Jurisdiction of the Court or not. There cannot be any straitjacket formula for holding under what circumstances and in what conditions the petitioner should be relegated to the remedy of alternate forum and when his prayer should be entertained in writ petition. The broad principles which have been laid down by the Apex Court and which are being followed by the High Courts, lay down that if there are no disputed questions of fact to be determined or even if the facts are to be seen or determined, they can be determined on the basis of the affidavits brought on record or that the principles of natural Justice have been flagrantly violated or fundamental rights have been infringed or that the action or the order pricks the conscience of the Court or that the alternative remedy or the alternate forum is not efficacious or speedy or that the petition is to be decided on some legal questions by interpreting the provisions of some enactment or rules or by interpreting some document which does not require any further proof in the shape of additional evidence are but few considerations which weigh while determining as to whether the petition straightaway should be thrown away or not, on the ground of alternative remedy.
27. The Apex Court in the case of Whirlpool Corporation v. Registrar of Trade Marks Mumbai and Ors. , has laid down the following guidelines for determining the question of alternative remedy:
Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its Jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in atleast three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principles of natural justice or where the order or proceedings are wholly without Jurisdiction or the vires of an Act is challenged.
28. In the case of Harbanslal Sahnia and Anr. v. Indian Oil Corporation Ltd. and Ors. , the Supreme Court, while considering the question of availability of alternative remedy, relying upon the principles laid down in the case of Whirlpool Corporation (supra), allowed the appeal, upsetting the order passed by the High Court, which had dismissed the writ petition on the ground of alternative remedy of arbitration available to the appellants against the Oil Corporation.
29. In the said case the Supreme Court was considering an order of the State Government passed through the Collector of the District suspending the dealership licence which authorized them to deal in petroleum products and also the imposition of fine. The writ petition was dismissed by the High Court on the ground that the relationship between the parties was contractual and the dealership agreement contains an arbitration clause and, therefore, the appropriate remedy available to the appellants was to have recourse to arbitration rather Invoking the writ Jurisdiction of the High Court.
30. In appeal, the Supreme Court, after considering the facts of the case, held that so far as the. view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed is concerned, suffice it to observe that the rule of exclusion of writ Jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. The Supreme Court therefore set aside the order passed by the High Court and allowed the appeal.
31. The Supreme Court in the case of A.B.L. International Ltd. and Anr. v. Export Credit Guarantee Corporation of India and Ors. , considering the case of Gunwant Kaur v. Municipal Committee. Bhatinda and the case of Century Spinning and Manufacturing Co. Ltd. v. Ulhasnagar Municipal Council and relying upon the observations made in the aforesaid case held that merely because a question of fact is raised, the High Court would not be justified in requiring the party to seek relief by the somewhat lengthy, dilatory and expensive process by a civil suit against a public body and that on a given set of facts if 'the State' acts in an arbitrary manner, even in a matter of contract, an aggrieved party can approach the Court by way of writ under Article 226 of the Constitution and the Court depending on facts of the said case is empowered to grant this relief.
32. The Court further observed that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the Court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit.
33. In the case of Gunwant Kaur, the Supreme Court even went to the extent of holding that in a writ petition, if the facts require, even oral evidence can be taken. This clearly shows that in an appropriate case, the writ court has the jurisdiction to entertain a writ petition involving disputed questions of facts and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact. Their Lordships laid down the following legal principles on the maintainability of the writ petition:
(a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable;
(b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule;
(c) A writ petition involving a consequential relief of monetary claim is also maintainable.
34. The Court, however, cautioned that while entertaining an objection as to the maintainability of the writ petition under Article 226 of the Constitution of India, the Court should bear In mind the fact that the power to Issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power and this plenary right of the High Court to issue prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction.
35. Clause 13 of the lease deed is relatively an exhaustive provision which gives few number of instances in which a claim can be lodged before the arbitrator, namely, it provides for arbitration in respect of any claim for compensation and as regards the terms and conditions or anything arising out of the contents of the lease deed and the disputes, if any, arising between the parties.
36. The predetermination of the lease deed by the L.D.A. has obviously and admittedly been done on the dictates or the desire expressed by the State Government, in its letter dated 25th May, 2005, wherein the petitioners were proposed an alternative land on their surrender of the present land and later on, on the directive issued by the Government in its order dated 20th August, 2005. The lease deed nowhere provided that in case of failure on the part of the Association to construct the entire complex of Badminton Academy within the given time of two years of the Government order dated 20th August, 2000, i.e., 31st March, 2002, the lease would be cancelled. As a matter of fact, the cancellation of lease deed was not done under the terms of the lease deed nor for any violation of the terms of the lease deed.
37. The plea of the L.D.A. that the deliberations made prior to the contract being reduced into writing, namely, execution of the registered lease deed in the instant case or the considerations made prior to the execution of the lease deed, would be deemed to be a part of the terms of the lease, though not specifically mentioned therein, is also of no assistance to the L.D.A. for upholding its objection against the maintainability of the writ petition. The effect of the Government order Issued prior to the execution of the lease would be considered at the appropriate stage in this Judgment but for the purpose of deciding the objection regarding the maintainability of the writ petition, suffice would be to say that the arbitration clause, if at all can be attracted, would be in a case where the breach of the terms of the lease is the cause of action for approaching the High Court but in that event too, it is not as a rule that the writ petition would not lie, if there is breach of the terms of the lease or violation of any contractual obligation by either party.
38. A bare reading of the lease deed reveals that the cancellation of the lease has not been done for any such violation of any of the terms of the lease and the Government order for the said purpose can neither be treated to be a part of the lease deed nor the same is inherently or latently present in the terms of the lease. Learned Counsel for the L.D.A. himself has admitted that the lease has been cancelled on the directive of the State Government and not for violation of any terms of the lease deed. In the counter-affidavit filed by the L.D.A., it has been unequivocally stated that the action of the L.D.A. is dependant on the directives of the State Government.
39. The considerations for entertaining the writ petition In the discretionary Jurisdiction of the High Court in respect of violation of contractual obligations as against the State or an instrumentality of the State, even if it involves some disputed questions of fact would be slightly different as against such violation or breach against a private party, which again would depend upon the fact that whether the said private party was under any obligation to perform any public function and if that is so, a violation in this regard may give rise to a complaint under Article 226 of the Constitution even against a private body.
40. In the case of Km. Shrilekha Vidyarthi v. State of U.P. , the Apex Court observed as under:
The impact of every State action is also on public interest. It is really the nature of its personality as State which is significant and must characterize all its actions. In whatever field, and not the nature of function, contractual or otherwise, which is decisive of the nature of scrutiny permitted for examining the validity of its act. The requirement of Article 14 being the duty to act fairly. Justly and reasonably, there is nothing, which militates against the concept of requiring the State always to so act, even In contractual matters.
41. The Apex Court in the case of A.B.L. International (supra) re-laid that once the State or an instrumentality of the State is a party, it has an obligation in law to act fairly, justly and reasonably to a contract which is the requirement of Article 14 of the Constitution, It was held that if by the impugned repudiation of the claim of the appellants, the first respondent, as an instrumentality of the State has acted in contravention of the above said requirement of Article 14 then it is held, without hesitation, that a writ court can issue suitable directions to set right the arbitrary actions of the first respondent.
42. In this case the first respondent was a Company registered under the Companies Act, wholly owned by Government of India.
43. The action impugned in the present case is the cancellation of the lease by the L.D.A. apparently for not being able to make full constructions of the building of the Academy within the time provided in the Government order dated 21st August, 2000. though no such condition was imposed in the lease deed which was executed by the L.D.A. and in which the State Government is not even a signatory or party to the lease.
44. Admittedly, no terms of the lease executed by the L.D.A. in favour of the Association has been violated but it is only on the directive of the State Government that the same has been cancelled, despite the fact that the building plan sanctioned by the L.D.A., namely, authority competent, has its validity upto February, 2006.
45. Besides this, the action of the State as well as of the L.D.A. has been challenged as the same being arbitrary, capricious and unreasonable guided by ulterior factors, the action also is to stand the test of Article 14 of the Constitution. We, therefore, find no force in the preliminary objection raised by the learned Counsel for the L.D.A. against the maintainability of the writ petition and accordingly overrule the same.
46. On the merits of the claim of the petitioner, the conduct of the State Government and its actions right from the date when the concept of establishing the Academy took birth, would be a significant consideration for finding out the nature of the right of the Association over the land, the effect of the non-completion of the entire building complex within a given time under the Government order dated 21st August, 2000, i.e., 31st March, 2002 and the reasonableness of the State in issuing the directive for cancellation of the lease deed to the L.D.A., apart from the right of the L.D.A. to cancel the lease on such ground, on the dictates of the State Government and that too without affording any opportunity to the petitioner. The action of the respondents in making efforts to take even its possession by bulldozing the existing constructions (though this fact has been vaguely denied by the L.D.A. in the counter-affidavit but has been specifically and with all vigour, pressed by the petitioner, for which a pile of Newspaper cuttings have been produced before us after showing them to the learned Counsel for the respondents, though they have not been filed by means of any affidavit, which are being placed on record).
47. The land in question was directed to be handed over to the Association in pursuance of the deliberations and recommendations made by a Committee headed by the Chief Secretary consisting of heads of different departments of the Government including the finance and that of L.D.A. dated 17th February, 1999, in which recommendations, there was no such condition prescribed that the building of the Academy has to be completed in full within a particular time. The recommendation was to the effect that the land be provided to the Association for which the Government would pay the price. However, when the Government order was issued certain conditions were put in, which we have already reproduced in the earlier part of the judgment and one of the condition was to the effect that the Academy shall be established in full within two years, i.e. upto 31st March, 2002, otherwise the land would be reverted back to the Government.
48. The aforesaid condition did not say that there would be automatic reversion of the land after the expiry of the prescribed period in case the Academy is not established in full. The Government order also does not speak about the raising of constructions of the Academy in full but both the parties have advanced their arguments taking this condition to mean that complete construction of the entire building or structure should have been made within two years, i.e., upto 31st March. 2002. We leave aside this question as to whether establishing the Academy would necessarily mean erection and completion of constructions in all regards or it would be sufficient if the Academy is established by following the legal procedure by getting it registered in constituting a body which is known as U.P. Badminton Academy with an office or place for carrying on its activities. The constructions in part and thereafter raising further constructions which may include the development of the infrastructure for imparting training or for any other related purpose which may require further expansion of the building would necessarily mean incomplete raising of constructions, is a matter to be considered by the parties themselves.
49. There is no denial of the fact that the U.P. Badminton Academy is a registered body and that the premises in question is being developed for the activities of the Academy by making a Sports Complex including the Indoor Stadium, Dressing Rooms and Rooms for Coaches, Hostels, etc.
50. After the issuance of the Government order dated 21st August, 2000, the land was transferred to the Association by the L.D.A. on the amount received from the State Government and a lease deed was executed. In the lease deed, there is no reference of the Government order dated 21st August, 2000 and rather it makes a note of the meeting held on 17th February, 1999, under the Chairmanship of the Chief Secretary for the establishment of the U.P. Badminton Academy wherein it was decided that the land for the establishment of Badminton Academy in Uttar Pradesh shall be provided to Uttar Pradesh Badminton Association in Greenbelt on concessional rates, which shall be at the rate of 10% of the actual premium and that the total amount of Rs. 1,02,39,000 has been paid by the Association to the L.D.A., vide Government of U.P. Treasury Cheque, which has been credited in the L.D.A. Account on 22.9.2000.
51. Not only this, none of the terms of the lease prescribed any period for establishment of the U.P. Badminton Academy nor the period for completion of its buildings.
52. The U.P. Badminton Academy, soon after the execution of the lease deed on 15th February, 2001, submitted the building plan to the L.D.A., which was sanctioned on 24.11.2001. The validity of such sanction was upto February, 2006, meaning thereby that the buildings were to be constructed within the aforesaid period. One cannot lose sight of the fact that the whole construction requires a huge amount, which amount was to be paid by the Association from its own sources and in view of the explanation given in the writ petition, we have no reason to disbelieve that despite the initial amount being spent, there was some financial crisis because of the General Elections of the Parliament and, therefore, it took some time in getting further funds released, which could be done only on 15th May, 2005, on clearance being given by Ministry of Statistics and Programme Implementation. Government of India, on which date approximately rupees five crores and odd was sanctioned. However, in the meantime, the State Government made a demand of 2000 sq. mts. of land for the purpose of construction and development of Ram Manohar Lohia Park to which the petitioners agreed and thereafter an exchange was made to the extent of the aforesaid area. Thus, 2000 sq. mts. of land towards the Lohia Park was taken away by the State and in its place an area of the same dimension was provided at the other end. This exchange was materialized by execution of an exchange deed on 11th March, 2005. The revised building plans were submitted, which was sanctioned on 17.3.2005, reiterating the period of validity of such sanction upto February, 2006, though this time it was stated to be 4th February Instead of 14th February.
53. Feeling that Lohia Park needs further expansion for construction of Library, Reading Room and Conference Hall, etc. the State Government again asked the Association to surrender the entire land, perhaps because it felt that exchange of 2000 sq. mts. of land was not sufficient for the entire complex of Lohia Park. The Association, who had already invested a huge amount and as the constructions were already in progress wherein substantial portion has already been raised, as mentioned In the writ petition, to which there is no denial in either of the counter-affidavits filed by the respondents, found itself unable to accept the demand of the State to surrender the land in question and to have alternative land in Its place.
54. The State Government in this regard had written a letter on 25th May, 2005, wherein one of the conditions of Clause 3 of the Government order dated 21st August, 2000, was reproduced with the rider that it has been brought to the knowledge of the State by the L.D.A. that the Academy has not been established in full and constructions are not completed despite the time period having expired in 2002, therefore, the same may be reverted to the State for construction of Lohia Park and an alternative land at any other place be given to the Association.
55. The petitioners reply to the aforesaid request/directive issued by the State did not satisfy the respondents and, therefore, the State Government Issued a directive on 20th August, 2005, invoking the condition of Clause 3 of the Government order dated 21st August, 2000 and directed the L.D.A. to cancel the lease. The L.D.A. has thus cancelled the lease on the directives of the State, not for violating any terms of the lease but for not completing the building by 31st March, 2002.
56. If a reason is given for passing an order, the validity of the reason or its relevance can be seen by the Court for the purpose of finding out as to whether the action is hit by Article 14 of the Constitution or whether it is a reasonable order or the order is arbitrary, whimsical, capricious and for no valid reason. The shelter has been taken by the State Government of the Government order dated 21st August, 2000, for cancelling the lease, as the Association has failed to establish the Badminton Academy fully for want of complete constructions of the buildings required.
57. From the sequence of events, it is clear that the Committee did not make any such time bound programme for completion of the building of the Academy and that the condition mentioned in the Government order in this regard neither formed part of the lease deed nor that of the permission/sanction granted by the L.D.A., where the period of construction is available upto February, 2006.
58. The effect and the binding nature of such a condition of establishing the Academy and making construction of the entire complex in full within a given time of two years, i.e., upto 31st March, 2002. has to be seen in the light of the object and the purpose for which the land was provided at the cost of the State Government.
59. Keeping in mind the purpose for which the land was provided and also the fact that whether such a condition was mandatory leading to some penal or adverse consequences, if the Association failed to comply with the same, it is also to be considered that the condition imposed was not self-enforcing or automatic but it required an order to be passed by the State Government meaning thereby that If such a condition was to be Invoked, an order has to be passed by the State Government at its discretion.
60. The condition aforesaid at best could be a condition, which could have been exercised or could be invoked at the discretion of the State Government. In other words, it was for the State Government either to allow the Association to continue the constructions even after the stipulated date in the Government order or to get the land reverted on the failure on the part of the Association in complying with the said term and, therefore, the question would be that whether such discretion, if at all could have been exercised, can be said to be a reasonable exercise of discretion or the action is per se illegal, arbitrary and capricious and rather the same is fanciful and whimsical.
61. By making these observations, we do not intend to say that the condition in Clause 3 of the Government order in question was either binding or mandatory or could have been necessarily invoked by the Government but taking the best case on its face value, the said condition can be termed only a discretionary condition invokable on the part of the State Government. It was the discretion, or in other words, it was an enabling provision available to the State Government for getting the land reverted under the said condition. This requires to see as to whether the said condition, could have been invoked any time, i.e., after any number of years or within a reasonable time and preferably before any substantial constructions had been raised.
62. The very fact that the lease deed was executed on 15th February. 2001, i.e., approximately after six months from the date of issuance of the Government order dated 21st August, 2000 and the building plan for the first time was sanctioned on 24th November, 2001 (though submitted with the L.D.A. on 13.7.2001) leaving only about four months (upto 31st March, 2002) for construction of such a huge complex, obviously cannot be said to be guided by the aforesaid condition of the Government order for completion of the entire building complex by 31st March, 2002. It was the L.D.A. who had executed the lease deed knowing fully well the terms of the Government order of 2000.
63. The State also did not object with the continuation of the construction programme after 31st March, 2002 and did not take any objection throughout till 25th May, 2005. To the contrary, the Association was allowed to raise the construction uninterruptedly, which they did as per availability of funds and the State Government even after knowing that full complex has not yet been completed, asked the Association to exchange an area of 2000 sq. mts. of land for the purpose of expansion of Lohia Park. This was done by execution of exchange deed on 11.3.2005. This goes to show that the State was not having any objection nor was intending to exercise its discretion for getting the land reverted at least till 11th March, 2005, nor the objection was raised with respect to the raising of constructions till that time. It was only when the petitioners refused to accept the request of the State Government made on 25.5.2005 that they should surrender the entire land for expansion of the Lohia Park in lieu of which they would be allotted the land somewhere else that the State issued a directive on 20th August, 2005 to the L.D.A. for cancelling the lease.
64. The aforesaid action establishes that what the State could not get directly from the Association, it did not hesitate in making an effort to have the same by invoking a condition of the Government order, which was never acted upon and which did not form part of the essence of the contract between the L.D.A. and the Association.
65. It can also not be said that time was the essence of the contract in terms of the Government order, as the Government itself by its conduct allowed the time period to be diluted and did not raise any objection for a period of approximately three years and five months from 31st March, 2002, when it issued a direction to the L.D.A. to cancel the lease deed on 20th August, 2005.
66. The State as well as the L.D.A. also knew that substantial construction of the building have already been made which was evident by the fact that though there is no denial on behalf of the State regarding the money spent by the Association in making the existing constructions of the building which included Indoor Stadium and other Complexes but the L.D.A., though have chosen to dispute the actual amount which might have been spent, has also not denied the existence of the constructions, which have been stated in the writ petition. The action of the State was thus hit by the principle of acquiescence.
67. According to the petitioners, an amount of 3.25 crores have already been spent, besides the cost of the land, whereas, according to the L.D.A., only an amount of Rs. 1.70 crores (approx.) have been spent. The petitioners, clarifying the aforesaid two calculations, have drawn our attention to the fact that the L.D.A. in this estimate has only given probable cost by measuring boundary wall and length and width of other structures but have not taken into account various fabrication material and angles and other materials which are lying on the spot for laying down the roof. The figures may vary but the two affidavits, one by the petitioner and the other by the L.D.A. and the photographs attached leave no room of doubt that a substantial portion of the first phase of the complex has already been constructed which still remains to be completed in which a huge amount has been spent by the Association, which it has managed from different sources. Asking the L.D.A. to cancel the lease at this juncture on the alleged non-compliance of the Government order of 2000 is an action which cannot be termed to be reasonable.
68. It is also clear from the record and the stand taken by the State Government from time to time that the State was not against the establishment of U.P. Badminton Academy nor was interested in getting the land reverted for failure on the part of the Association to complete the constructions of the entire complex because had it been so, the objection would have been raised at the first Instance after 31st March, 2002 and in any case, there was no reason for exchange of 2000 sq. mts. of land in March, 2005 and then again asking for surrender of the entire land in August, 2005, with the assurance for an alternative land being given to the petitioners at some other place. Giving of land at some other place at this juncture when the Association has already spent a huge amount and has raised the building complex to a certain extent, which, according to the petitioners, only requires laying down of the roof and furnishing, that too at the time when an international event is to be hosted by them, would defeat the very purpose of the establishment of the Academy, apart from the huge loss in monetary terms, which would occasion to the Association.
69. The facts as have emerged make one to believe that since the State Government could not get the whole of the entire land on request being made, issued the directive for cancelling the lease to the L.D.A. The action of the State Government as well as of the L.D.A. thus cannot be said to be fair and reasonable and cannot stand the test of Article 14 of the Constitution.
70. In the case of State of U.P. and Ors. v. Maharaja Dharmender Prasad Singh and Ors. , the Supreme Court considered the powers of the State Government under Sections 14 and 15 of the U.P. Urban Planning and Development Act, 1973 and also the regulatory power and also the power of re-entry of lessor after the expiry of termination of lease. A lease in respect of Nazul land was granted which commenced in 1961 and was to expire on 31st March, 1991. The lease was cancelled before the term of the lease expired.
71. In this case a show cause notice was issued on the instruction of the State Government by the L.D.A. preceding the order of cancellation of lease raising 10 grounds. Grounds 1 to 7 related to what the Government considered to be violations and breaches of the terms and conditions of the lease, which pertain to the alleged change of user, sub-letting and sub-division of the lease hold property. The grounds also referred to the alleged non-disclosure of the terms and conditions of the Memorandum between the lessees on the one hand and the Builders on the other. The grounds for forfeiture also referred to the likelihood of fraud being practised on the prospective purchasers of the flats as to the nature and extent of lessees' subsisting interest under the lease and the limitations thereon.
72. In the said case the proceedings arose out of two matters. The first pertained to the legality of the notice issued by the State Government in cancelling the lease. The cancellation of lease was challenged in two writ petitions, which were allowed by the High Court. The second area of controversy arose out of the order of the Vice Chairman, Lucknow Development Authority, cancelling the earlier order dated January 31, 1985, granting permission under Section 15 of the Act in favour of the respondent lessees to develop the lease hold property by erecting thereon a multi-storeyed building called 'Balrampur Towers'.
73. The controversy arose, as the Government brought to the notice of the then Vice Chairman, Lucknow Development Authority what, according to the Government, were serious illegalities in the sanction of the permission dated January 31, 1985 and indicated to the Vice Chairman that sanction earlier granted on January 31, 1985, be reviewed and revoked. The Vice-Chairman, however, did not agree with that. The State Government thereafter wrote to the Chairman, L.D.A. about the serious illegalities and Infirmities resulting from the permission and as to how the construction violated the terms and conditions of the lease and directed the Chairman. L.D.A. to initiate immediate proceedings. To that letter was annexed, a show cause notice which the Chairman was asked to serve on the lessees and the builders associated with the construction. A reply was filed by the respondents but the Government did not find the explanation acceptable and, therefore, proceed to terminate the lease. The order was passed as under:
Now therefore on account of the aforesaid breach of the lease conditions the Governor of U.P. does hereby terminate the lease. You are required to hand over possession of the land and building standing thereon to Collector, Lucknow, within 30 days of the receipt of this notice otherwise action for eviction will be taken against at your cost.
74. The Supreme Court held that so far as the cancellation of lease is concerned, that involves disputed questions of fact and such questions ought to have been left from being considered by the High Court.
75. The report further dealt with the power of the State Government to issue directive under Section 41(1) and held as under:
This power of the State Government consistent with the scheme of the Act cannot be construed as a source of power to authorise any authority or functionary under the Act to carry out something which that authority or functionary is not, otherwise, competent to do or carry out under the Act. Section 41(1) is not a Super Henry VIII clause for the supply or source of additional provisions and powers not already obtaining under the Act.
76. In the instant case also, the lease has been cancelled on the directive of the State Government. Learned Counsel for the L.D.A. has specifically stated that this directive cannot be treated to be a directive under Section 41(1) of the Act nor was Issued under the said provision. We also feel that in view of the law laid down by the Apex Court in the case of Maharaja Dharmender Prasad Singh (supra), no such directive could have been issued by the State Government under Section 41(1) as such directives would be conferring powers upon the L.D.A., which it does not have, under the provisions of the Act.
77. Recourse has been taken to the provisions of Sub-section (1) of Section 18 of the U.P. Urban Planning and Development Act, 1973 by the learned Counsel for the L.D.A. to support the action of the L.D.A. on the directive of the State Government.
78. Section 18 is regarding the disposal of land by the Authority or the local Authority concerned. Sub-section (1) says that 'subject to any directions given by the State Government in this behalf, the Authority or, as the case may be, the local Authority concerned may dispose of:
(a) any land acquired by the State Government and transferred to it, without undertaking or carrying out any development thereon : or
(b) any such land after undertaking or carrying out such development as it thinks fit.
to such persons, in such manner and subject to such terms and conditions as it considers expedient for securing the development of the area according to plan.
79. Sub-sections (2) and (3) are not relevant for the present dispute nor has been referred to, though argument has been raised from the side of L.D.A. that Sub-sections (4), (4A), (5), (6) and (7) would not apply. Sub-sections (4) and (4A) are being reproduced below:
(4) Where vacant land has been disposed of under this section by way of lease for making constructions within the stipulated time with right of forfeiture of the lease and re-entry upon failure to make constructions within such time, and the lessee falls without sufficient reason, to make the constructions or a substantial portion thereof, within the stipulated time or such extended time as the lessor may grant, the lessor may, (subject to the provisions of Sub-section (4A), forfeit the lease and re-enter upon the land:
Provided that no forfeiture and re-entry shall be made unless the lessee has been allowed reasonable opportunity to show cause against the proposed action.
(4A) Where a lessee fails to make construction within the stipulated time, and the extended time, if any, under Sub-section (4) so that the total period from the date of lease exceeds five years, a charge at the rate of 2% of the prevailing market value of the concerned land shall be realised every year from him by the lessor and if from the imposition of the said charge, the further period of five years elapses, the lease shall stand forfeited and the lessor shall re-enter upon the land:
Provided that where the period of five years has expired before the commencement of the Uttar Pradesh Urban Planning and Development (Amendment) Act, 1997, or where the period of five years expires within one year after such commencement, the charge shall be realizable after a period of one year from the date of such commencement.
80. Sub-section (4) would not be attracted, according to the learned Counsel for the L.D.A., as the lease deed has no clause of right of forfeiture of the lease and re-entry whereas Sub-section (4A) is the consequence on the failure on the part of the lessee to make constructions within the stipulated time or the extended time, as the case may be, as given in Sub-section (4).
81. Accepting the plea and the statement of the learned Counsel for the L.D.A. that the aforesaid provisions of Sub-sections (4) and (4A) are not attracted in the instant case, we do not find it necessary to look into the validity of the impugned action on the basis of the aforesaid provision but we would like to put on record that even Sub-section (4) gives discretion to the authority either to forfeit the lease or to proceed for reentry depending upon the reason being given by the lessee for the failure on his part. Sub-section (4A) provides for payment of additional charge at a given rate and thereafter forfeiture of lease after giving a period of five years. Thus, the aforesaid two provision clearly speak that in case of failure on the part of the lessee to raise the construction within the given time, forfeiture of the lease is not the necessary or compulsory outcome, but the discretion has to be exercised by the authority after considering the reasons for not being able to complete the constructions within the time already provided or within such extended time.
82. The attempt on the part of the learned Counsel for the L.D.A. to bring the directive of the State Government for cancelling the lease, under Sub-section (1) of Section 18, (Sub-sections 4 and 4A) after excluding rest of the provisions of Section 18; requires us to consider the meaning, import and effect of the aforesaid Sub-section (1). Even assuming that the land was disposed of by the L.D.A. on the directives of the State Government, therefore, any failure on the part of the lessee to comply with any such direction would necessarily entail the applicability of Sub-sections (4) and (4A). which are the necessary consequences of violating the terms of transfer given under Sub-section (1) of Section 18 or the terms of the lease.
83. We find force in the argument of the learned Counsel for the petitioner that Sub-section (1) of Section 18 would not be taken to mean that if the L.D.A. disposes of its land, the direction issued by the State Government would still be binding upon the L.D.A. under the said Section after the execution of the lease deed. Firstly, the words "subject to any directions given by the State Government in this behalf" is only a restriction upon the absolute power of the L.D.A. to dispose of the land belonging to it, which obviously mean that directions which can be issued in regard are the matters mentioned in Clauses (a) and (b) of Sub-section (1), and even if a wider meaning is given to the aforesaid provisions saying that any direction can be issued by the State Government in respect of the transfer of land, still when the authority transfers the said land, it has to determine the terms and conditions of its own, which is apparent from the phrase "the Authority or, as the case may be, the local Authority concerned may dispose of any landto such persons, in such manner and subject to such terms and conditions as it considers expedient", used in the latter part of Sub-section (1).
84. Thus, even if the letter Issued by the State Government in regard to the transfer of land is referable to Section 18(1), even then it was the L.D.A. who was to apply its mind and to put such conditions as thinks necessary for the Development of the Area according to plan. Once the lease deed has been executed by the L.D.A. with specified terms and conditions mentioned therein for the development including the raising of constructions, any directive issued by the State Government for the transfer of land, more so, when it has not been incorporated in the lease deed, could not have been made the basis by the L.D.A. for cancellation of the lease deed.
85. In the alternative, even if such a directive issued by the State Government was binding, the failure on the part of the lessee to raise the construction within the time provided would only entail the consequences given in Sub-section (4) or (4A), as the case may be, but since it is the specific case of the respondents that there being no clause of forfeiture of the lease deed and re-entry, the said provision would not apply, which are taken as the correct interpretation of the provision, the argument of the learned Counsel for the L.D.A. with respect to the applicability of Sub-section (1) of Section 18 is without any basis. We, therefore, find that the directive for cancellation of the lease issued by the State Government could not be referable to Section 18(1) also.
86. The next question, which has been urged, is regarding the right of reentry of the State Government in terms of the G.O. dated 20.8.2000.
87. On the right of re-entry, the Supreme Court in the case of State of U.P. and Ors. v. Maharaja Dharmender Prasad Singh and Ors. (supra) observed as under:
A lessor, with the best of title, has no right to resume possession extra-Judicially by use of force, from a lessee, even after the expiry or earlier termination of the lease by forfeiture or otherwise. The use of the expression, 'reentry' in the lease deed does not authorise, extra-judicial methods to resume possession. Under law, the possession of a lessee, even after the expiry or its earlier termination is juridical possession and forcible dispossession is prohibited, a lessee cannot be dispossessed otherwise than in due course of law. In the present case, the fact that the lessor is the State does not place it in any higher or better position. On the contrary, it is under an additional inhibition stemming from the requirement that all actions of Government and Governmental authorities should have a 'legal pedigree. In Bishan Das v. State of Punjab , this Court said:
We must, therefore, repel the argument based on the contention that the petitioners were trespassers and could be removed by an executive order. The argument is not only specious but highly dangerous by reason of its implications and impact on law and order.
Before we part with his case, we feel it our duty to say that the executive action taken in this case by the State and its Officers is destructive of the basic principle of the rule of law.
88. In the case of State of Haryana and Anr. v. Mohinder Pal and Ors. . the Supreme Court again found that "admittedly the respondents were in possession of the property in question and had put up structures thereon. On that admitted position the High Court took the view that ejectment of the respondents forcibly without due recourse of law was not in due process. No exception can be taken to that view at all.
89. Similar view was taken in the case of S.R. EJaz v. T.N. Handloom Weavers Cooperative Society Ltd. , wherein considering the case of Maharaja Dharmender Prasad Singh (supra), the Supreme Court observed as under:
In our view, if such actions by the mighty or powerful are condoned in a democratic country, nobody would be safe nor can the citizens protect their properties. Law frowns upon such conduct. The Court accords, legitimacy and legality only to possession taken in due course of law. If such actions are condoned, the fundamental rights guaranteed under the Constitution of India, or the legal rights would be given a go-by either by the authority or by rich and influential persons or by musclemen. Law of Jungle will prevail and "might would be right" instead of "right being might".
90. We have dealt with the question of forcible entry or attempt to take forcible possession of the premises in question on the arguments raised by the learned Counsel for the parties and particularly, in view of the fact that lot of news items published in the local dailies in this regard were placed before the Court but since they had not been made part of the pleadings in the writ petition, therefore, even without taking them into consideration, we find that the specific averments made in the writ petition regarding the attempt to forcibly take the possession by demolishing the existing constructions, stated in the later part of para 4 have not been specifically denied in the counter-affidavit filed by the State but only a vague reply has been given. The counter-affidavit of the State does not say anywhere that attempt was not made to bulldoze the constructions, rather in reply to paras 3 and 4 of the writ petition, para 12 of the counter-affidavit says that the action taken by the L.D.A. is dependant upon the decision of the State Government and after the decision dated 20.8.2005, the land in question re-vested in the State Government. It further stated that all actions of the L.D.A. were based upon the G.O. dated 21.8.2000. In reply to para 9 of the writ petition, again they have stated that once the petition failed to fulfil the conditions on the basis of which the land in question was provided, the action taken by the State Government is within the terms and conditions of the G.O. dated 21.8.2000.
91. The State thus was under mistaken belief that the land would automatically re-vest or would of its own automatically stand re-vested with the State Government allegedly on non-compliance of one of the conditions of completing the whole Sports Complex within the time mentioned therein. This averment also establishes that the entire action including the cancellation of the lease deed has been done by the L.D.A. not on the application of its own mind but merely on the directive given by the State Government without caring to find out that whether any terms of the lease granted has been violated or permission given by has been misused.
92. No opportunity of any kind was ever given to the petitioner before cancelling the lease by the L.D.A.
93. The L.D.A. in its reply to para 4 of the writ petition does not deny the allegations of attempted forcible dispossession and demolition of existing constructions but only says that no official of the L.D.A. visited the site of constructions, if any, on the land in question.
94. This reply appears to be a deliberate drafting, which is absolutely silent on the averments in the writ petition. This reply is not only evasive which cannot be taken to be a specific denial with regard to the averments made in para 4 of the writ petition but also reflects that the L.D.A. deliberately did not mention that constructions were actually existing, as it put the words if any after the words 'constructions' in the said paragraph, though it to admitted to both the parties that the constructions are in existence and the dispute only is that according to the Government, the Academy was not fully established, as the Complex was not fully complete. There was no reason for the L.D.A. to put the aforesaid words (if any) in front of the words 'constructions'. The L.D.A. appears to have made an attempt to show that it is doubtful whether any construction exist or not, which fact admittedly and provingly is not correct. The L.D.A. itself has filed a supplementary counter-affidavit where it has admitted about the existence of the constructions and also has given its own estimate about the money spent.
95. We on the consideration of the facts and findings recorded by us are of the view that the action taken by the L.D.A. on the directive issued by the State Government cannot be sustained and the impugned orders dated 20.8.2005, issued by the State Government and 23.8.2005, Issued by the L.D.A. contained in Annexures-1 and 2 to the writ petition are liable to be quashed, which are hereby quashed. The attempt of the respondents to take possession without taking the due process of law was also without authority.
96. Before parting, we would like to place on record that the establishment of the U.P. Badminton Academy have been done not only with the consent and approval of the State Government but, in fact, also with the considerable money advanced by it for the purchase of the land. The Academy has been set up for development of the sport of Badminton in the State or Uttar Pradesh in which the construction in the first phase are almost complete and the Academy is to host an international event from 13th to 18th December, 2005. The State Government ought to have taken a liberal and reasonable view keeping in mind the fact that the sports are equally a necessary component for the development of the State as that the 'education', environment, health and public security. Though we do not intend to undermine the anxiety of the State to have a developed Park Complex with Library and Reading Room facility being available, but we do feel that eroding the Badminton Academy in the midst of its completion and on the eve of international event could have been avoided by the State Government, the said action being Illegal, unreasonable and wholly unjustified, particularly when the State itself was offering an alternative land. It is relevant to mention here that if the State Government was offering alternative land, that also was under the same very decision of the Committee of the Chief Secretary, held in the year 1999, in pursuance of which the Government had issued the Order dated 21st August, 2000 and, therefore, this alleged act of non-compliance of the condition of completing the construction within the stipulated period, i.e., 31.3.2002, would itself have stood wiped of, if alternative land had been accepted by the petitioner. This obviously shows that the State Government was otherwise not taking the aforesaid condition as binding but for its inability to have the land for the development of the Park, the direction for cancellation of the lease deed would not have been issued. The action of the State Government has further delayed the construction and progress of the work of the Academy.
97. The writ petition is allowed with costs.