Amarbir Pasricha vs State of HP and Others

R.B. Misra, J.—The above mentioned two Letters Patent Appeals have been preferred against a common order dated 1.7.2008 passed by learned Single Judge in CWP No. 139/2006 Amarbir Pasricha v. State of HP and Ors. and CWP No. 138/2006 Commodore Devinder Jit Singh (Retd) v. State of HP and Ors. Learned Single Judge by a common order dated 1.7.2008 has been pleased to dismiss both the above mentioned writ petitions.

Since more or less identical questions of law and facts are involved in both these letters patent appeals (in short ''LPA''), therefore were heard together and are being disposed of by a common judgment.

Following prayers were made in both the writ petition Nos. 139/2006 and 138/2006 by the Appellants herein (writ Petitioners) as below:

A. Quash the communication/order Annexure P-7''

B. Direct the Respondents to approve the plans for the proposed cottages of the Petitioner so as to enable him to proceed with the construction;

C. Direct the Respondents to acquire the land of the Petitioner and pay him requisite compensation for the price of the land and expenditure incurred as also the loss suffered by him all these years because of the acts of the Respondents;

D. Direct the production of relevant records;

For convenience, the facts of LPA No. 97/2008 are being enumerated here-in-below exhaustively.

It appears that the Appellant, namely, Commodore Devinder Jit Singh, herein (the writ Petitioner), retired as Senior Naval Officer, had purchased a plot of land measuring 00-52-92 hectares (about 16 biswas) comprised in khasra No. 73/2, Khata Khatauni No. 2/3, Mauza/village Chharabra, Pargana Dharti, Patwar Circle Mool Koti, Tehsil and District Shimla. He submitted application for building permission for the construction of cottages. The issue was discussed in the meeting of Special Area Development Authority, Kufri Special Area (in short called Authority) held on 10.6.2002. The matter was referred by the Chairman-cum-Deputy Commissioner, Shimla, to the Commissioner-cum-Secretary (Home) on 17.7.2002. The Principal Secretary (Home) to the Government of H.P. sent letter dated 24.8.2002 to the Director General of Police, seeking his opinion in consultation with Additional Director General of Police (CID), Himachal Pradesh and President''s Secretariat. The Member Secretary of Authority, Kufri Special Area had sent a communication dated 5.2.2003 to the writ Petitioner, indicating him that no construction should be undertaken till such time the clearance is given by the concerned security agencies, who are responsible for the securities of VVIP''s, so that, case was forwarded to the Department of Home for consideration and orders. The Director General of Police vide letter dated 12.6.2003 informed the Additional Chief Secretary (Home), {in short ACS (Home)} Government of H.P. that the residential construction of any kind in the vicinity of Retreat area being VVIP''s zone was not advisable from security point of view and thus the permission for raising the construction could not be recommended.

ACS-cum-Secretary (Home) to the Government of Himachal Pradesh had conveyed to the Chairman-cum-Deputy Commissioner of Authority on 1.7.2003, indicating that on the basis of report from Addl. CID, Himachal Pradesh, the residential construction of any kind in the vicinity of that area was not advisable. Since the ''Authority'' did not grant permission to the writ Petitioner to raise the construction in V.V.I.P''s area, as such, feeling aggrieved by the decision of the State Government, Appellant herein, assailed the decision of the State Government by way of filing CWP No. 641/2003. The said writ petition was disposed of on 10.8.2004. The extract of the order dated 10.8.2004, relevant for the purpose, is reproduced as below:

.... Accordingly, communication No. Home(A) D (1) 25/92 dated 1.7.2003 was sent by the Additional Chief Secretary (Home) addressed to the Chairman, SADA informing him that because of the aforesaid reasons the permission could not be granted.

Based on the aforesaid facts, we on our own, as far as the merits of this case go, do not feel inclined to interfere in the matter but at the same time also do feel that perhaps the issue relating to the grant of permission to the Petitioner from security point of view has not thoroughly been examined or considered, and in any case apparently the Petitioner has not been afforded a hearing in the matter. Without, therefore, interfering in the aforesaid decisions taken, and even while disposing this petition, we permit the Petitioner to make a fresh representation, if so advised, directly addressed this time to the Chief Secretary to the Government of Himachal Pradesh, requesting the State Government to grant permission for construction and for clearance from security point of view. If the Petitioner makes such a representation within two weeks from today, we direct the Government of Himachal Pradesh, particularly the Chief Secretary and the Director General of Police, to consider such a representation purely on its merits and to decide, by passing a speaking order whether to grant permission and clearance from security point of view, keeping in view the fact that the building proposed to be constructed is indeed in a VVIP area and alls the attendant security considerations. The Government of Himachal Pradesh may also obtain the views of Central Security Agencies in the matter if it is considered advisable or desirable to do so. The Petitioner shall be afforded a right of hearing in the matter.

The final decision on the merits of the case, by passing a speaking order shall be communicated to the Petitioner within three months from the date of the receipt of the fresh representation.

The petition accordingly is disposed of. No order as to costs.

In reference to above judgment dated 10.8.2004, Appellant herein preferred representation to the Chief Secretary of State of H.P. on 17.8.2004 (Annexure P-6). The Principal Secretary (Home) to the Government of H.P. sent a communication to the Secretary to the President of India on 12.10.2004, enclosing the earlier correspondence and the order dated 10.8.2004 passed in CWP No. 641/2003.

The Inspector General of Police, CID, State of HP also written letter to the Director, Town and Country Planning, Shimla (TCP) on 27.10.2004, seeking certain clarification in the facts and circumstances as to whether the area in question has been categorized as "Green Belt Area" or otherwise and also seeking clarification as to what kind of residential building plan is sanctioned for concerned area, Setbacks, height, number of stories allowed etc. The Under Secretary (EBA) of the President''s Secretariat sent a communication to the Principal Secretary (Home) to the Government of HP on 11.11.2004. The text of the letter dated 11.11.2004 reads as below:

With reference to your No. Home (A)E (3)-42/2003-II dated 12.10.2004, I am directed to state that the responsibility for the security of President of India when the President is at the Retreat/Shimla is that of the State Government and the State Government should give a considered opinion in the matter. However, in terms of the long-term perspective and consequences that may follow in granting such a permission and after taking due consideration some embargo may have to be placed by notifying certain area surrounding the Retreat as ''No Construction Zone''. Otherwise, the possibility of other such demands snowballing on the strength of the present precedent cannot be ruled out.

The Inspector General of Police (CID) Himachal Pradesh informed the Principal Secretary (Home) on 5th November, 2004 that the entire area of Khasra No. 264-269 should be kept free from any kind of construction as it was having the common boundary with ''The Retreat Estate'' and the same was in very close proximity. The Inspector General of Police had specially recommended that the permission could not be accorded to the writ Petitioner to raise the construction on following security considerations:

The permission to construct a residential house in this plot which is having common boundary with ''The Retreat'' will certainly affect the security environment of ''The Retreat'' adversely.

It will be difficult to stop or not to allow construction of such dwelling units on this plot in future quoting the present case as a precedent.

The construction in the said land including Khasra No. 265/73/2 will push the line of built-up houses by about 50 meters toward ''The Retreat'' further reducing the ''Sterile Zone'' from ''The Retreat''.

The change of ownership of the property in future can not be stopped and the possibility of its being purchased by elements.

This dwelling unit, if allowed to be constructed can be used by persons with dubious motive and elements which can pose threat to the VVIP staying at ''The Retreat''.

Weapons having range of 1.5 km can be easily fired from there as the distance is about 1 km.

The Retreat will come within the range of sniper-fire from this location.

As both, the Kalyani Helipad used by VVIP Helicopters and ''The retreat'' are within 3 kms of this plot, this area is required to be

sensitized and secured from security point of view for safe landing and take off as also for movements and stay of VVIP/Protectees.

Any construction so close to the Helipad will certainly be a security risk for VVIP using Kalyani Helipad.

Funnel area the landing and take off funnel is normally secured upto 3 kms to guard against any threat from ground to air weapons. This location will be within this range.

The Committee comprising of the Chief Secretary (Himachal Pradesh) and the Director General of Police, Himachal Pradesh rejected the representation dated 17.8.2004 of writ Petitioner on 16.11.2004. The operative portion of order dated 16.11.2004 reads as below:

In the face of these categorical objections made not only by the President''s Secretariat but also by the ADGP CID, whose primary responsibility is to provide security to the VVIP in the State, permission as requested by both the parties cannot be granted to safeguard the life and well being of the VVIP. Both the representationists also referred to the permission granted to them by the Revenue Department for purchasing the said land u/s 118 of the Land Reforms and Tenancy Act and claimed that the said permission pre-supposes permission to build also. To our mind this assumption does not hold good since the building permission is given by a different authority as per the bye laws of the Municipal Corporation and Town and Country Planning Department and as such cannot be said to have been granted automatically along with the permission to purchase the land.

Based on what has been stated above, we reject the request of the representationists who may be informed accordingly.

The said decision dated 16.11.2004 was conveyed to the Appellant on 30.11.2004. Being aggrieved, the Appellant herein has preferred CWP No. 138/2006 [assailing the decision of the State Government dated 16.11.2004, communicated on 17.11.2004 (Annexure P-7)]. The parties had exchanged their pleadings. Replies by way of counter affidavit as well as rejoinder affidavit were filed.

This Court in similar case i.e. CWP No. 87/2007 had directed the State to apprise the court as to whether the land of the Petitioner as well as similarly situated persons could be acquired or not. The State of HP had not agreed to acquire the land, however, vide communication dated 27.2.2008, the similarly situate persons were permitted to use the land for agriculture, horticulture, and floriculture purposes. The State of HP was directed on 14.3.2008 to convey whether the permission to raise one storeyed building could be permitted or not. The Principal Secretary (Home), Govt. of HP, in that reference, sent a letter to the Secretary to the President of India on 4.4.2008 seeking permission/no objection for the construction of a house by the writ Petitioner at Chharabra.

In such context, a letter dated 16.5.2008 was received by the Principal Secretary (Home) to the Govt. of HP alongwith a copy of letter of President''s Secretariat, according to which, the President''s Secretariat has not given permission/no objection in favour of Appellant herein for raising construction. The Appellant herein, has also moved CMP No. 1425/2008 under Order 6 Rule 17 CPC, seeking amendment of the writ petition which was allowed on 16.6.2008. However, the State Government has not chosen to file reply to the said amended writ petition and submitted to argue on the basis of earlier replies on behalf of the State Government.

In view of the pleadings, rival contentions and perusal of records relevant for the purpose presented on behalf of State Government, learned Single Judge adjudicated the said writ petition along with CWP No. 139/2006 and by a common order dated 1.7.2008 dismissed both the writ petitions.

Mr. K.D. Sood, learned Counsel appearing on behalf of the Appellant has vehemently argued that the decision dated 16.11.004 conveyed vide letter dated 17.11.2004 (Annexure P- 7) and subsequent communication dated 30.11.2004 are not in consonance with the law and the Appellant herein has been discriminated vis-�-vis Smt. Priyanka G. Vadra by flouting the provisions of Article 14 of the Constitution and earlier permission granted on 26.3.2008 by the Special Area Development Authority, Kufri Special Area came to be withdrawn because of change of political will, the Appellant herein has been refused for construction, whereas, the Appellant herein has already permitted full inspection and security checking of his residential building and has also submitted that without construction of house, land would not be taken care of properly. It has also been contended that the Appellant herein is not going to utilize permanently the proposed constructed building so that any type of threat to VVIPs area may not arise and the Appellant herein is also ready to make his absence during the visit of President of India by allowing the full use of said proposed building and to leave the house under the control of security personnel. Mr. K.D. Sood, has also argued that one Smt. Priyanka G. Vadra has also been accorded permission by the State Government for the construction of residential building, whereas, the Appellant herein being legally entitled to get permission to construct the house, has been discriminated.

On the other hand, learned Addl Advocate General has vehemently opposed the submissions of learned Counsel for the Appellant herein by submitting that change of political will is not borne from the official record. The Appellant herein could have filed review petition on any specific ground, if he was aggrieved by the order of learned Single Judge. As has been argued on behalf of the State that the impugned order dated 16.11.2004 has been passed in compliance to the specific direction given by this Court passed on 10.8.2004 in CWP No. 641/2003 and while making representation on 17.8.2004 (Annnexure P-6), Appellant herein had not referred the case of Smt. Priyanka G. Vadra, as, at the time of making such representation, the matter of granting permission in favour of Smt. Priyanka G. Vadra was not in existence. As the permission to Smt. Priyanka G. Vadra was granted on 14.11.2007 only i.e. much later to the filing of the representation and to the decision of rejection of the case of the Appellant herein. As has been argued on behalf of the State that the orders dated 16.11.2004 and 30.11.2004 are in consonance with law and the same have been passed in view of threat perception to VVIPs. There is no comparison between the case of the Appellant herein vis-�-vis the case of Mrs. Priyanka G. Vadra as the necessary permission has been accorded in her case by all the relevant concerned agencies including the State Intelligence Agency and no objection having been given by the President''s Secretariat in case of Mrs. Priyanka G. Vadra. It has also been argued on behalf of the State that the decision not to permit the Appellant herein to raise the construction in proximity of the ''Retreat'' is based on executive policy i.e. security point of view.

The main contention of the Appellant herein in LPA is that the State Government has decided in principle to accord permission to construct cottages subject to certain conditions as per noting portion dated 26.3.2008 and the Appellant herein has been discriminated by the State Government, whereas, Mrs. Priyanka G. Vadra has been allowed to construct the cottage in the vicinity of the "Retreat".

It has also been submitted on behalf of the Appellant herein that alternatively, Appellant''s land could be acquired. However, the State government has not agreed to acquire the land of the Appellant herein and similarly situated persons. It has also been argued that the permission for agriculture, horticulture and floriculture was accorded on the basis of letter dated 27.2.2008. This court also directed on 27.2.2008 as to whether Appellant herein could be permitted to raise single storeyed building on the basis of land purchased by him. The State Government had informed this Court that the matter was taken up with the President''s Secretariat on 4.4.2008 and the President''s Secretariat has not accorded permission/no objection to the Appellant herein as is evident from the letter dated 16.5.2008, which reads as below:

I am directed to invite reference to your letter No. Home (A) E(3)-9/2006 dated 4.4.2008 on the above cited subject. It is noted that the request of Commodore Singh and Smt. Pasricha seeking permission for construction of residential house at the said plot was duly examined by the Government of Himachal Pradesh and a detailed speaking order was passed jointly by the then Chief Secretary and the then Director General of Police on 16.11.2004 wherein their request for permission to undertake construction work was rejected, quoting ten security considerations cited by the ADGP (CID) vide his letter dated 5.11.2004. As you are aware, the President''s Secretariat had already furnished its views to the State Government of Himachal Pradesh on the same request made earlier by Commodore Singh and Smt. Pasricha and a copy of the said communication dated 11.11.2004 is enclosed for ready reference. Subsequent to the aforementioned letter, no additional/supplementary inputs have been brought to the knowledge of this Secretariat in this matter, which would merit any departure from our considered opinion conveyed earlier. It has been further noted in para 3 of your letter dated 4.4.2008 that the comments of the President''s Secretariat on the instant request has been sought in the light of this office letter of even number dated 14.11.2007 regarding permission for construction of house in Mohal Chharabara, Tehsil Shimla, in respect of Smt. Priyanka Vadra. It may be pertinent to mention that the no-objection in that case was granted based on the recommendation contained in the Security Assessment Report furnished by the office of Inspector General of Police, Himachal Pradesh vide letter No. S-2(A) SEC/07 dated 11.10.2007 as annexed to the confidential report bearing No. Home (A) F (13)-5/2007 dated 11.10.2007 from the Principal Secretary (Home), Government of Himachal Pradesh. Attention is also adverted to the fact that the above cited Security Assessment Report of the State Police had specifically highlighted the special and distinctive grounds for giving their no-object in the case of Smt. Priyanka Vadra, particularly her status as an SPG protectee. In view of the above factors and the security concerns indicated by your ADGP (CID), this Secretariat is not in a position to give its no-objection in respect of the request of Commodore Singh and Smt. Pasricha.

The contents of the above letter dated 16th May, 2008 reveal that in reference to the question of vital public importance of the security of the VVIPs'' the permission/no objection has not been given in favour of the Appellant herein by the President''s Secretariat as it is the bounden duty of the Central Government and State Governments to protect the VVIP like the President of India. It appears that the State of Himachal Pradesh has made inquiry in right perspective taking into consideration the threat perception to the security of the President of India.

Learned Single Judge has in the impugned order taken into consideration the contents of the letter dated 11.10.2007 that the State Government while referring the case of Smt. Priyanka G. Vadra has mentioned that she was ''SPG'' protectee. The protection given to Smt. Priyanka G. Vadra is regulated under the Special Protection Group Act, 1988 (in short ''SPG'' Act). Learned Single Judge has elaborately given the statement of objects and reasons of SPG Act and has also considered different aspects of ''SPG'' Act as well as the Special Protection Group (Amendment) Act, 1999 which was brought on 16.12.1999 in ''SPG'' Act, 1988 and also dealt in detail about the proximity security'' as provided in ''SPG Act'', relevant for the purpose of the case. Learned Single Judge has also dealt in detail the relevant provisions of Special Protection Group Act, 2003 and has observed that the Special Group has to provide the security to the Prime Minister, Ex Prime Minister and to the members of his immediate family. Smt. Priyanka G. Vadra has been provided proximate security by the ''SPG'' and this factor has also weighed with the State Intelligence Agencies as well as President''s Secretariat while according permission/no objection in her favour to raise the construction in Chharabra Muhal near The Retreat. Learned Single Judge has rightly appreciated the stand of the State Government that Smt. Priyanka G. Vadra is a separate and distinct class, having ''SPG protection'' and the Appellant herein cannot compare himself with her for the purpose of according same treatment in reference to raising the construction of the building in the sensitive area. Learned Single Judge has rightly referred and relied on the judgment of Hon''ble Supreme Court in Commissioner of Police, Delhi and Anr. v. Registrar, Delhi High Court Commissioner of Police, Delhi and another Vs. Registrar, Delhi High Court, New Delhi, , whereby it has been held that the expression "proximate security" has to be given purposive meaning. Their Lordships have held as under:

We cannot help remarking that the will of the Parliament reflected in the Act is bold, unequivocal, comprehensive and wide in nature, nowhere permitting withdrawal, limiting or proscribing of the proximate security statutorily conferred on the protectee. The mere fact that the protectee has to go to Court as an undertrial, does not disentitle him to the proximate security. His being in transit or getting within the precincts of the Court does not absolve the group from extending to him the "Proximate security" as threat perception to him is no way diminished. The expression "proximate security" has to be given a purposive meaning, for, it could never have been intended by the Parliament that security would be restricted to places of functions, engagements, residence or halt on resorting to a literal meaning. The purposive approach would warrant these places to be wide enough to include visits of a protectee to Courts, compulsive or voluntary and in no way can the Group be absolved from its statutory responsibility on the specious plea that having brought the protectee to the Court precincts, the obligation to protect him would then shift to the Court, who may either, under orders, place the protectee back to the group, or send him into Police or Judicial Custody, shifting the obligation of his protection to others. A contrary view expressed on these lines by Shri Bhat deserves outright rejection. It has to be borne in mind that the protectee is a protectee all the time, as long as he keeps breathing for the period of ten years, from the date he demits office of the Prime Minister. We shall not be taken to have been remotely suggested or tried to impinge on the power of the Court to deal with the person summoned in accordance with law but we wish to lay emphasis that even in Court custody or other custody as ordered by the Court, the SPG protective cover cannot be lifted from the protectee. It goes with the person of the protectee as the shadow would a man. It is for the SPG to devise how to render meaningful protection to the protectee wherever he is even when he is under Court orders, vide Section 2(a).

It is also relevant to note that Smt. Priyanka G. Vadra though is special and distinct class having been provided SPG protection under Special Protection Group Act, 1988. However, President''s Secretariat while indicating the permission/no objection to her had also imposed certain conditions on 14.11.2007, which read as follows:

(i) The building shall be a dwelling unit for residential purpose only and shall not be used for any non-residential purposes;

(ii) The land and the building as a whole or a part thereof shall not be sold, leased out or transferred by the applicant to anybody else without the prior consent of the President''s Secretariat;

(iii) The State Government shall take adequate security measures to protect the "Retreat" the ''Kalyani Helipad'', the road journeys to and from the ''Retreat'' and the security zone; and

(iv) The approval from the agencies concerned may be obtained prior to commencement of constructing the building.

From the perusal of the record, we notice that the State Government has sent the case of the Appellant herein twice to the President''s Secretariat for the permission/no objection and on both the occasions, the permission has not been accorded. After taking into consideration the sensitivity of the matter pertaining to the security of VVIP, it is not only the President''s Secretariat, who has raised the objection but the State Intelligence Agency has also not recommended the case of the Appellant herein for permission/no objection.

In our considered view not allowing the construction, in reference to the report of the State Intelligence Agency, is certainly a policy matter and this Court shall certainly not sit as Appellate Authority over the decision of the State Intelligence Agency and the President''s Secretariat in not granting permission or no objection for the construction by the Appellant herein. The report of State Intelligence Agency in respect of the security threat of VVIP is a very vital and important aspect. Even Hon''ble Supreme Court had occasion to deal with the report submitted by the Intelligence Bureau while considering the candidature for appointment as Member of Central Administrative Tribunal in Union of India (UOI) and Others Vs. Kali Dass Batish and Another,

Learned Single Judge has taken into consideration the correspondence made from time to time between the State Government as well as President''s Secretariat and the correspondence made with other relevant departments and different functionaries of the State Government. President''s Secretariat since has very categorically declined to the Appellant herein to give consent for the construction to be raised around ''Retreat''. The decision dated 16.11.2004 is a speaking and reasoned order having been passed considering all the pros and cons of the matter, cannot be said to be illegal as primarily it is for the Sate functionaries to ensure the safety and security of ''The Retreat''.

Learned Single Judge has rightly arrived at a conclusion that it is a policy matter whether to permit the construction in and around the VVIP zone or not. The State Intelligence Agency and the Central Agencies have shown their concern about the safety of the place and when the matter was taken up by the Principal Secretary (Home) with the President''s Secretariat on 4.4.2008, the later has turned down the proposal again on 15.5.2008. In reference to the submission of K.D. Sood, Advocate that State Government has taken the decision in favour of the Appellant herein as per noting portion dated 26.3.2008, to accord permission to the Appellant herein subject to certain conditions could be said to be tentative decision and not a final decision, which is generally taken in the matter. The noting dated 26.3.2008 was internal noting of the matter by Deputy Secretary (Home) and thereafter the matter was considered by the Higher Authorities and was taken up to the Secretary of the Hon''ble President on 4.4.2008 and ultimately rejection order was passed on 15.5.2008 by the President''s Secretariat and it is only the final decision which shall be material and not the internal notings made by the department in the matter.

Hon''ble Supreme Court in Sethi Auto Service Station and Another Vs. Delhi Development Authority and Others, has held that it is the final decision, which is open to challenge. Their Lordships have observed as under:

It is trite to state that notings in a departmental file do not have the sanction of law to be an effective order. A noting by an officer is an expression of his viewpoint on the subject. It is no more than an opinion by an officer for internal use and consideration of the other officials of the department and for the benefit of the final decision-making authority. Needless to add that internal notings are not meant for outside exposure. Notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision-making authority in the department; gets his approval and the final order is communicated to the person concerned. 17. In view of the above legal position and in the light of the factual scenario as highlighted in the order of the learned Single Judge, we find it difficult to hold that the recommendation of the Technical Committee of the DDA fructified into an order conferring legal right upon the Appellants.

From the afore-extracted notings of the Commissioner and the order of the Vice Chairman, it is manifest that although there were several notings which recommended consideration of the Appellants'' case for relocation but finally no official communication was addressed to or received by the Appellants accepting their claim. After the recommendation of the Technical Committee, the entire matter was kept pending; in the meanwhile a new policy was formulated and the matter was considered afresh later in the year 2004, when the proposal was rejected by the Vice Chairman, the final decision making authority in the hierarchy. It is, thus, plain that though the proposals had the recommendations of State Level Co-ordinator (oil industry) and the Technical Committee but these did not ultimately fructify into an order or decision of the DDA, conferring any legal rights upon the Appellants. Mere favourable recommendations at some level of the decision making process, in our view, are of no consequence and shall not bind the DDA. We are, therefore, in complete agreement with the High Court that the notings in the file did not confer any right upon the Appellants, as long as they remained as such. We do not find any infirmity in the approach adopted by the learned Single Judge and affirmed by the Division Bench, warranting interference.

During the course of hearing of Letter Patent Appeals, an application CMP No. 1097 of 2009 was preferred seeking permission for production of additional documents, photocopies of original notings upto 30.9.2009, alongwith other correspondence and records/files with their true English translation. In all fairness without going into the merits of the issue as to whether at appeal stage and while deciding the LPA, the additional documents could be allowed to be produced alongwith original notings, the photostat copies of the notings of the original file are being considered and are being perused and the original documents, correspondence and notings of the files are taken on record. The notings of the subsequent period also do not change the position and claim of the Appellant herein as at any subsequent stage, nothing has been indicated through the notings of the State Government or by the functionaries of the State Government that at any stage permission was ever accorded to the Appellant herein. As such, miscellaneous application No. 1097 of 2009 is disposed of accordingly.

We have considered the submissions of Mr. K.D. Sood made in reference to Smt. Priyanka G. Vadra. We are of the considered view that the case of Smt. Priyanka G. Vadra stood on different footings, as her matter was taken up and discussed with the different functionaries of the State Government and that of the President''s Secretariat. As per letter dated 11.7.2007 by imposing conditions, permission was accorded in favour of Smt. Priyanka G. Vadra. While imposing conditions by the President''s Secretariat the aspect of security and safety to the VVIPs has not anyway been diluted and accordingly the Deputy Secretary was informed by the Principal Secretary (Home) on 29.11.2007 about the conditions to be imposed at the time of granting permission to Smt. Priyanka G. Vadra.

Learned Single Judge has also very carefully considered all the aspects emerging from the SPG Act, 1988. We, respectfully, are in agreement with the reasoning of the learned Single Judge, whereby Learned Single Judge has held that Smt. Priyanka G. Vadra being a protectee of Special Protection Group has to be treated differently. The doctrine of equality applies to equals. It is well settled and cannot be disputed that Article 14 of the Constitution of India guarantees equality before the law and confers equal protection of laws. It prohibits the State from denying persons or class of persons equal treatment; provided they are equals and are similarly situated. It, however, does not forbid classification. In other words, what Article 14 prohibits is discrimination and not classification if otherwise such classification is legal, valid and reasonable and since Smt. Priyanka G. Vadra is to be classified in different categories, as such, giving her a different treatment is not illegal in view of the decision of Supreme Court in State of Bihar and Others Vs. Bihar State +2 Lecturers Associations and Others,

It is also well settled that un-equals are not only permitted to be treated un-equality but also they have to be so treated, in view of the observations of the Supreme Court made in St. Stephen''s College etc., etc. Vs. The University of Delhi Etc., Etc., paragraphs 97-100. Since the Appellant herein cannot be said to be situated equally in comparison to Smt. Priyanka G. Vadra, admittedly in our considered view, the Appellant herein and Smt. Priyanka G. Vadra are un-equal. It is also well settled that equal treatment to un-equals is nothing but inequality since the Appellant herein and Mrs. Priyanka G. Vadra, are un-equals and not similarly situated, as such they cannot be treated equally, in the light of the observations of Hon''ble Supreme Court in Onkar Lal Bajaj Vs. Union of India (UOI) and Another etc. etc., . The Appellant herein, therefore, cannot be treated equal to Mrs. Priyanka G. Vadra, as she has to be treated distinct class. In view of this, it is not a case of invidious discrimination as has been argued by Mr. K.D. Sood, learned Counsel for the Appellant herein.

In view of the observations made hereinabove, we are in complete agreement with the findings of the learned Single Judge. The appeal, being devoid of merit, is therefore dismissed.

LPA No. 96/2008

The Appellant herein has bought a piece of land. She submitted application for raising construction. The matter was dealt with in the manner in which the case of Commodore Devinder Jit Singh was dealt with by the Respondents (State). Her case was also rejected after receiving the inputs from the State intelligence agencies and Central agencies and the decision of the President''s Secretariat not to grant permission for construction in the vicinity of "The Retreat". The representation was also made by the Appellant herein on 17.8.2004 and the same was rejected on 16.11.2004. Since we have already dismissed the LPA No. 97/2008 on the same and similar facts, this appeal is also liable to be dismissed. Accordingly, the same is dismissed.