Andhra HC (Pre-Telangana)
Road Metal Industry vs Secretary To Government Of A.P., ... on 9 October, 2001
Equivalent citations: 2001(6)ALD166, 2001(5)ALT670, AIR 2002 ANDHRA PRADESH 284, (2001) 6 ANDHLD 166 (2001) 5 ANDH LT 670, (2001) 5 ANDH LT 670
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
ORDER
1. Shorn of the details of claim of the petitioner - the validity of the decision of the government to part away and alienate huge extent of land adjoining the city of Hyderabad in favour of Brahma Kumari Educational Society and Mahesh Bhupati Tennis Academy (respondents 5 and 6 herein) falls for consideration in this writ petition.
2. The question that falls for consideration is as to whether the government has any unlimited discretion to alienate the properties of the State in any manner whatsoever and to whomsoever without any due regard to the relevant statutory scheme?
3. Before delving deep into the said important question that falls for consideration, it may be interesting to notice the stand in principle taken by the government and its understanding about the issue as is evident from the counter affidavit filed by the Joint Secretary to the government, Revenue Department for and on behalf of the State government:
"Basically, the Government being the owner of the land can allot it for any purpose, which is-conducive to the welfare of the State. There are also some statutory Provisions, which provided inter alia for such assignment e.g., Board's Standing Order No, 24.
Further, under the Rules framed under A.P. (Telangana Area) Grant of Lease of Lands for Non-Agricultural Purposes Rules, 1977 under the A. P. (Telangana Area) Land Revenue Act, 1317 Fasli leases of Government lands in Telangana area may be granted on payment of rent or even free of rent.
These provisions are not exhaustive and it is respectfully submitted that the Government can grant any Government land on such terms as it deems fit to subserve public good."!
4. In the circumstances, the question that squarely falls for consideration is as to whether the executive can alienate any government land on such terms as it deems fit in contravention of the statutory rules in force governing the subject matter relating to the allotment/alienation of government lands?
5. The record made available for the perusal of the court would reveal that the 5th respondent addressed a letter dated 1-3-2001 to the Honourable Chief Minister, Government of Andhra Pradesh to sanction "a suitable land centrally located at Hyderabad at free of costs or at nominal charges" for construction of training centre having training Halls, Modern Audio Visual Library, Meditation Rooms, Spiritual Art Gallery, in house accommodation etc. The main aim of the said modem training centre is to motivate and educate the public at large to adopt the values, which will be helpful in all the fields of life. This is followed by another letter dated 8-5-2001 addressed to the District Collector, Ranga Reddy District requesting to allot 20 to 25 acres of land at Gachibowii village, with a copy to the Honourable Chief Minister. The matter appears to have received the requisite attention of the Honourable Chief Minister in principle agreeing for allotment of land. The District Collector, Ranga Reddy District was accordingly directed to examine and send the proposal to the government through the Chief Commissioner of Land Administration. That is how the process for alienation of the government land appears to have been set in motion.
6. It appears from the record that various government lands in and around Hyderabad were jointly inspected by the representatives of the administration and of parties. Finally, the 5th respondent through its letter dated 18-5-2001 requested the District Collector, Rangareddy District to allot 25 acres of land in Survey No.91 of Gachibowii village, Serilingampalli Mandal, Ranga Reddy District at free of cost in the name of Brahma Kumaris Educational Society.
7. The Mandal Revenue Officer, Serilingampalli Mandal having held joint inspection, submitted a proposal for allotment of 25 acres of land in Survey No.91 of Gachibowli village in favour of the 5th respondent and an extent of Ac.3-00 in favour of the 6th respondent. The said land forms part of total extent of Ac.522.12 guntas, out of which an extent of Ac.58.12 guntas was under grant of mining lease in favour of the petitioner. More about the petitioner's claim later.
8. The District Collector, Ranga Reddy District addressed a letter dated 24-5-2001 to the Chief Commissioner of Land Administration with a request to recommend the proposals to the government for handing over the advance possession of land to an extent of Ac.25-00 in favour of the 5th respondent and an extent of Ac.3-00 of land in favour of the 6th respondent.
9. However, even before the recommendation of the said proposal by the Chief Commissioner of Land Administration, the District Collector appears to have telephonically instructed the Mandal Revenue Officer, Serilingampalli on 26-5-2001 itself to handover the advance possession of the government land in Survey No.91 of Gachibowli to an extent of Ac. 25-00 to the 5th respondent and an extent of Ac.3-00 to the 6th respondent pending finalisation of the alienation. The Mandal Revenue Officer accordingly, in compliance with the instructions of the District Collector, delivered the possession of the said extents of the land under a panchanama on 26-5-2001 itself.
10. While the matter stood thus, the Government of Andhra Pradesh vide its Memo No.31718/Asn.V.2/2001-1, dated 1-6-2001 issued directions to the District Collector, Ranga Reddy District to deliver the advance possession of the government land to respondents 5 and 6 "on lease for a period of 30 years subject to the finalisation of terms and conditions." The government proceeded on the assumption as if the possession was not yet delivered to respondents 5 and 6. The said memo appears to have been, obviously, issued after the decision was taken on 31-5-2001 to grant lease of the said extents of land to respondents 5 and 6 for a period of 30 years, subject to finalisation of terms and conditions later. But, by the time, possession has already been delivered to respondents 5 and 6. The 5th respondent made a further representation dated 3-6-2001 seeking allotment of some extra land for the reasons stated in the said representation and the details thereof need not be noticed. The said representation also received favourable consideration and the District Collector received instructions for handing over the additional extent of Ac.8-37 guntas of land in the same survey number in addition to an extent of Ac.25-00 of land, possession of which has already been handed over to the 5th respondent. The District Collector in turn directed the Mandal Revenue Officer to handover the possession of the same and the Mandal Revenue Officer accordingly handed over the possession of additional extent of land also on 6-7-2001 itself. The District Collector thereafter submitted a proposal as desired by the Chief Commissioner of Land Administration to allot the land admeasuring Ac.33-37 guntas to the 5th respondent society and also ratify the orders of handing over the advance possession of the additional land to an extent of Ac.8-37 guntas.
11. Meanwhile, the present writ petition has been filed. It may be necessary now to briefly notice the claim of the petitioner.
12. The petitioner claims to be in possession of an extent of Ac.58-12 guntas of land in the same survey number since 1-1-1976 under a valid lease deed granted for carrying on the quarry of granite stones. The lease granted in the year 1976 was extended by the government vide G.O.Rt.No.486, dated 26-5-1988. It is claimed that further renewal of the lease in favour of the petitioner is ordered by the government by proceedings dated 28-5-2000 as well as the government Memo No.3/39/ Asn.V2/2001 -1, dated 8-6-2001.
13. The Andhra Pradesh Pollution Control Board issued a notice dated 8-7-1997 to close down the petitioner-industry, and the same is challenged in W.P.No.3132 of 1999 before this court. According to the petitioner, the said writ petition is pending.
14. It is asserted that while the quarry work was going on smoothly, the petitioner industry received an invitation card under the name and style "Shanthi Sarovar' proposing to lay a foundation stone on 31-5-2001 in Survey No.91 of Gachibowli village. The petitioner immediately got a legal notice issued to the respondents. The petitioner industry, on verification, learnt about the allotment of various extents of land in favour of respondents 5 and 6 out of the land in its possession. That is how the petitioner has come to know about the allotment of government land in favour of respondents 5 and 6. It is contended that the petitioner industry continues to be in peaceful possession and enjoyment of the land admeasuring Ac.58-12 guntas and it cannot be dispossessed from a portion of the said land by alienating the same to respondents 5 and 6. The allotment and delivery of possession to respondents 5 and 6, according to the petitioner, is contrary to law. It is contended that the government as well as respondents 1 to 4 are aware of the lease and the quarrying operations by the petitioner industry. The land could not have been alienated and possession thereof could not have been delivered to respondents 5 and 6 in contravention of the rules. It is the case of the petitioner industry that after allotment of the said land and in the process of delivery of advance possession, the respondents made an attempt to disturb its possession. It is under those circumstances, the present writ petition has been filed.
15. It is evident from the record that the lease granted to the petitioner expired long time ago. The petitioner, obviously, appears to have filed an application for renewal of the tease only after coming to know about the allotment/alienation of a part of the land in favour of respondents 5 and 6. The District Collector through the proceedings dated 19-6-2001 rejected the request of the petitioner for extension of lease. There is no application as such of the petitioner pending with the Assistant Director, Mines and Geology for extension of the lease. The government vide G.O.Rt.No.486, dated 26-5-1988 renewed the quarry lease in favour of the petitioner only for a further period of two years. The said lease has also expired. The fact remains that there is no further extension of lease as such in favour of the petitioner. The petitioner industry filed W. P. No. 18600 of 1988 seeking appropriate directions as against the respondents for sanctioning the renewal of lease for a period of ten years. The petitioner enjoyed the benefit of the interim order granted by this court and the said writ petition itself was closed by this court without granting any relief since the interim directions obtained by the petitioner worked out itself in favour of the petitioner. The petitioner had sought renewal of lease for a period often years from 1988. Since the lease of the petitioner had already expired, the writ petition was closed by an order dated 17-6-1999.
16. It is also required to notice that the land in question is located within the municipal limits of Serilingampalli Municipality. The area witnessed tremendous and rapid development after the grant of lease to the petitioner in the year 1976. There is a significant change in the surroundings of the land in question. Many residential localities have come up around the vicinity of the land in question. Many institutions of both the Central and State government have also come into existence. In the circumstances, the petitioner industry would not be entitled for any farther renewal of the lease in its favour.
17. In such view of the matter, the issue as to whether the respondents have resumed the possession of the land from the petitioner industry also pales into insignificance. The petitioner industry cannot be permitted to sit on the land after the expiry of the term of lease. At any rate, the petitioner had enjoyed the benefit of the interim order passed by this court and remained in possession of the land for a period of more than ten years even after the expiry of the lease.
18. But the question that falls for consideration is as to whether the writ petition has to be dismissed on the simple ground that no relief could be granted to the petitioner? Whether the public interest requires to judicially evaluate and review the decision of the government in allotting the land to respondents 5 and 6?
19. The learned Advocate General, Sri T. Anantha Babu, strenuously contends that it is not open for this court to judicially review the decision of the government in allocating the land to respondents 5 and 6 since the petitioner industry miserably failed to establish its case for grant of any relief in this writ petition. It is contended that the petitioner industry failed to make out any prima fade case for granting any relief whatsoever. The petitioner industry is not entitled for grant of any renewal as prayed for by it and, therefore, no further question as such survives requiring any adjudication by this court.
20. The court is unable to persuade itself to agree with any of the contentions urged by the learned Advocate General.
The petitioner industry may not get any relief in this writ petition. But, it does not mean that this court is precluded from going into the propriety, legality and validity of the allotment of the land in favour of respondents 5 and 6. The lis has acquired the character of public interest litigation. In a given case, even a writ petition claiming some relief by an individual may acquire the character of public interest litigation. The court under such circumstances cannot refuse to exercise its jurisdiction and correct the illegality. This court cannot close its eyes and persuade itself to uphold the mischievous executive actions, which have been so exposed. This court is duty bound to act when arbitrariness and perverseness are writ large. This court cannot refuse to interfere and issue its writ even after the public mischief is clearly brought out. 'Advancement of the public interest and avoidance of the public mischief are the paramount considerations.' (See Chaitanya Kumar Vs. State of Karnataka, .
21. The issue as to whether the alienation of valuable government land is made in accordance with law is directly put in issue by the petitioner industry. This court is duty bound to examine the issue and decide as to whether the decision making process of respondents 1 to 4 in allotting/ alienating the land in favour of respondents 5 and 6 is vitiated. The court is duty bound to examine as to whether the action of respondents 1 to 4 suffers from any legal and constitutional infirmities.
22. The land in question is admittedly a government land. It is a public property. It is a valuable land adjoining the city of Hyderabad. The executive is entrusted with the duty to protect and manage the natural resources that vest in the community. All such natural resources and properties are held by the government in trust for and on behalf of the people. The community is the owner of such resources. No government can be heard in saying that it can grant any government land on such terms as it deems fit to any person of its choice. The natural resources including the land are required to be used and exploited only for public good. Public interest is paramount consideration.
23. The government has no unlimited discretion in the matter of granting largesse. The government cannot give largesse in its arbitrary discretion or at its sweet will or on such terms as it chooses in its absolute discretion. The Supreme Court held that there are two limitations imposed by law which structure and control the discretion of the government in this behalf. The first is in regard to the terms on which largesse may be granted and the other, in regard to the persons who may be recipients of such largesse. (See: Ramana Dayaram Shetty Vs. International Airport Authority of India and Kasturi Lal Lakshmi Reddy Vs. State of J&K, ).
24. It is very well settled that, unlike a private individual, the State cannot act as it pleases in the matter of giving largess. The government is not free to act as it likes in selling or leasing out its property. The property is not of the government, but of the State. The government of the day holds such property as a custodian for and on behalf of the people. The activity of the government is subject to restraints inherent in its position in a democratic society. A system governed by rule of law and constitutionalism does not permit exercise of power conferred on the government in an arbitrary, capricious or in unprincipled manner. It is needless to reiterate that every activity of the government has a public element in it and is required to be informed with reason and guided by public interest. The actions of the government in dealing with the properties of the State are liable to be tested for its validity on the touchstone of reasonableness and public interest and if it fails to satisfy either test, it would be unconstitutional and invalid.
25. The procedure adopted by the government for disposal of the applications filed by respondents 5 and 6 and the very decision to allot/alienate the government land in their favour does not satisfy any of the valid requirements. We have already adverted to the stand taken by the government in its counter affidavit in support of its decision to allot the land in question to respondents 5 and 6. It is asserted that the government being the owner of the land can allot it for any purpose, which is conducive to the welfare of the State. The record does not show that the government has taken such a decision to alienate the land in question as a welfare measure. The whole decision making process is vitiated for more than one reason: statutory rules governing the alienation of the State lands are thrown to winds. The authorities involved in the decision making process not only acted in hasty manner totally ignoring the statutory rules, but also none involved in the decision making process adverted to- the statutory rules governing the alienation of the State lands in Telangana area of the State of Andhra Pradesh. No doubt, in the counter affidavit a reference is made to Board's Standing Order No.24 and the rules framed under the Andhra Pradesh (Telangana Area) Land Revenue Act, 1317-Fasli. But, it is contended that the provisions are not exhaustive and, therefore, the government can grant any government land on such terms as it deems fit to subserve the public good. These rules are never referred to by any of the authorities involved in the decision making process while considering the request of respondents 5 and 6 for alienation of valuable public property.
26. The rule making authority in exercise of the powers conferred under Section 172 of the Andhra Pradesh (Telangana Area) Land Revenue Act, 1317 Fasli (for short 'the Act') made rules governing the alienation of State lands lying in the Telangana Area of the State of Andhra Pradesh. The Rules are known as "Andhra Pradesh (Telangana Area) Alienation of State Lands and Land Revenue Rules, 1975 (for short 'the Alienation Rules'). In exercise of the same power the rule making authority also made the rules called "Andhra Pradesh (Telangana Area) Grant of Lease of land for Non-Agricultural Purposes Rules, 1977 (for short 'Lease Rules'). The Rules are exhaustive.
Rule 2 (j) of the Alienation Rules defines "Public Purpose" as under:
"Public Purpose" means a purpose which confers or is conductive to the good of a considerable section of the community at large or of the locality or region, like the construction of schools, temples, churches, mosques, choultries, roads, hospitals and office building of a local body or local authority proper but not any purpose which is but ancillary to a public purpose.
27. Rule 3 of the Alienation Rules lays down the General Principles for alienation of State lands. Rule 3(b) of the Alienation Rules mandates that no application for alienation of land under the Rules to a company, association, Society, institution or any other corporate body should be considered unless such company, association, society, institution or other corporated body has been registered under the Indian Companies Act VII of 1913.
28. Rule 4 of the Alienation Rules provides for powers of alienation of land and specifies different authorities for alienation of the land depending upon the market value of the land, The Board of Revenue is empowered to sanction alienation of land in favour of local bodies or local authorities for any bona fide public purpose provided that the market value of the land does not exceed Rs.20,000/- and to sanction, in favour of local bodies or local authorities, lands which contain buildings when the compiled market value of the land and the buildings does not exceed Rs.20,000 in each case. It is required to notice that the Board of Revenue (Single member) is empowered to sanction alienation of lands in favour of companies, private associations, societies, institutions or any other private corporate bodies or private individuals provided the market value of the occupancy right in the land does not exceed Rs.3,000/- in each case. Collectors of Districts are also empowered to sanction alienation of lands in favour of such companies, private associations, societies, institutions or other private Corporate bodies or private individuals when the market value of the occupancy right in the lands does not exceed Rs.1,000 in each case. In all other cases, the sanction of the State government is required for which an application should be made in the prescribed form (Form in Appendix-1). The Alienation Rules inter alia prescribe the terms and conditions subject to which alienation of the land could be granted by the State. It is not necessary, in detail, to notice the terms and conditions prescribed by the Rules.
29. The Alienation Rules are, obviously, intended to structure and control the discretion of the State government and its authorities in the matter of alienation of government lands in favour of local bodies, local authorities as well as private individuals, companies, societies etc.
30. The record discloses that no attention has been paid by any of the authorities to these Alienation Rules. It looks as though none of the authorities were even aware of the statutory rules governing the alienation of the State lands in Telangana Area. There is no assessment of market value of the land sought to be alienated in favour of respondents 5 and 6. There is no finding or even an observation that the lands are sought to be placed at the disposal of respondents 5 and 6 for any public purpose. It is noteworthy that the Alienation Rules even define "Public Purpose", which we have already noticed supra.
31. It now transpires what is intended to grant is lease of the lands in question in favour of respondents 5 and 6 for a period of 30 years. Therefore, it becomes necessary to critically examine and scrutinise as to whether the proposed grant of lease is in accordance with the Lease Rules.
32. Rule 5 of the Lease Rules mandates that no land shall be given on lease in all district headquarters, towns and in all municipal towns other than the twin cities of Hyderabad and Secunderabad without taking into consideration the requirements of the Departments of Government. Municipalities, Town Planning Trusts or the Andhra Pradesh Housing Board and Corporations owned or controlled by Government. There is a clear and discemable public purpose behind such mandate. The intentment and object sought to be achieved is clear. The interest of the government and its instrumentalities and local bodies and Corporations owned by the government is of paramount importance. The competent authority could grant lease to any individual, institution, society or association etc., only after ascertaining the requirements of the Departments of Government, Municipalities etc.
33. Rule 6 of the Lease Rules in turn mandates that the period of lease that may be granted shall be determined carefully in each case with reference to the nature of the land, the purpose for which the land is acquired and whether the land is likely to be required by the government for any purpose and in no case the period of lease shall exceed 25 years. But in case of grant of lease in district headquarters, towns and municipal towns, the maximum period of lease shall be six years, if not renewed.
34. Rule 7 of the Lease Rules prescribes the competent authorities to grant lease of land. It is the government alone which is competent to grant lease of land in case the market value of land exceeds Rs. 10,000/- Rule 8 of the Lease Rules prescribes that every application for grant of lease shall be made in Form-A to the Tahsildar within whose jurisdiction the land is situated. Such applications are required to be disposed of by the Tahsildar if he is competent to grant lease and if he is not competent, he shall forward the application to the concerned competent authority through proper channel for orders together with the record of enquiry. Such is the nature of the statutory scheme even in the matter of grant of lease of government lands to private individuals, companies, associations or societies etc.
35. It is, however, required to notice that under Rule 15 of the Lease Rules, notwithstanding anything in the Lease Rules, the Government may grant lease of a land for any public purpose free of rent and without any restriction as to the period of lease in favour of any local body or institution, association, society, company or a corporation.
36. "Public Purpose" is again defined in Rule 2(f) of the Lease Rules. Public Purpose means a purpose which is conducive to the good of considered section of the community at large or of the locality or region.
37. It is imperative to examine as to whether the decision to grant lease of the land in question is in accordance with either of the rules. No application in the prescribed form in Appendix-I as such has been filed by respondents 5 and 6, which is one of the mandatory requirements. There is no assessment of market value with reference to the lands sought to be allotted to respondents 5 and 6. There is no finding by any of the authorities or for that matter even any observation of there being any public purpose. At no stage, the Board of Revenue (presently the Chief Commissioner) has been consulted in the matter except one or two letters from the District collector requesting the Chief Commissioner to submit the proposals of alienation to the government. Those letters appear to be a formal one. The District Collector by the time of addressing such letters has already delivered the advance possession of the lands to respondents 5 and 6. Under the Alienation Rules, the District Collector could have delivered the possession in advance if the alienation is within his powers of sanction and that too when he is satisfied that the matter is urgent and the work could be carried through only if the occupation of the lands is permitted in advance of sanction of alienation of the lands and in all other cases, the District Collector can only move the appropriate authority for the grant of the requisite permission for delivery of possession in advance by furnishing detail and specific reasons in support of his proposal in that regard.
38. The record does not reveal that the District Collector ever required the permission of the appropriate authority to deliver the advance possession to respondents 5 and 6. The record does not disclose as to the nature of urgency if at all involved for delivery of possession in advance even before finalising the proposals. On the other hand, the possession has been delivered by the District Collector at the instance of 'an individual officer' who is not the competent authority in law to issue any such instructions to the District Collector. The government memo dated 1-6-2001 directing the delivery of advance possession in the light of the decision to grant lease of the land for a period of 30 years rendered itself to be a formality, since the District Collector had already delivered possession by the time of issuing the government memo. None involved in the decision making process adverted themselves to the Rules, and there is no decision as such directing the District Collector to deliver the advance possession. On the other hand, none adverted to the relevant rules for taking decision in the matter. There is no decision as such in the eye of law at law. Decisions taken by individuals howsoever high one may be cannot be equated to that of a government decision.
39. Lease Rules are also thrown to winds by all the concerned. There is no provision under the Lease Rules to deliver any advance possession even before grant of lease. There is no application in the prescribed format filed by respondents 5 and 6 for grant of lease. On the other hand, respondents 5 and 6 wanted the allotment of land free of costs. The so-called applications filed by respondents 5 and 6 are not at all in the prescribed format under the Lease Rules. The format forms part of the statutory rules and scheme and the application if at all could have been only in the prescribed format. The applications are neither filed nor disposed of in accordance with the rules, which we have already referred to. The applications, if at all, filed for grant of lease are required to be scrutinised and verified by the Tahsildar concerned and the market value is to be ascertained, rent is to be determined and then application is to be forwarded to the concerned competent authority through the proper channel for orders together with the record of enquiry. No such procedure has been followed. The prescribed Procedure is, undoubtedly, mandatory. There is no provision in the Lease Rules to deliver any advance possession. Yet, the possession is delivered in anticipation of finalisation of terms and conditions of the lease. Nobody knew, at the time of delivery of possession of the lands in question to respondents 5 and 6 as to what would be the nature of the decision of the government. None were aware as to whether the proposals are for alienation or for grant of lease of the lands in question.
40. Relevant considerations have not been kept in mind at all in the decision making process to grant lease of the lands. The mandatory requirement of Rule 5 of the Lease Rules regarding consideration of the requirements of the departments of the Government and other bodies has been totally ignored. The land, admittedly, is situated within the limits of Serilingampalli Municipality and, in the circumstances, the competent authority is bound to consider the requirements of the departments of the Government, Municipalities, Town Planning Trusts or the Andhra Pradesh Housing Board and Corporations owned or controlled by Government. No such exercise has been undertaken.
41. Rule 5(2) of the Lease Rules mandates that in twin cities of Hyderabad and Secunderabad and within a belt of 10 miles from their limits, no Government land shall be given on lease without taking into consideration the requirement of the Departments of the Government, the Hyderabad Municipal Corporation the Andhra Pradesh Housing Board., the Urban Development Authority and the Corporation owned or controlled by Government. None of these authorities are consulted as to whether they would be in requirement of the lands proposed to be alienated in favour of respondents 5 and 6.
42. Rule 6 of the Lease Rules, which we have already noticed, mandates that the period of lease that may be granted shall be determined carefully in each case. There is neither any care nor any consideration shown in proposing to grant lease of the lands to respondents 5 and 6.
43. The maximum period of lease granted under the Lease Rules shall be six years, if not renewed and not more than 25 years in any case. It is true that the government has the general power notwithstanding anything in the Lease Rules to grant lease of a land for any public purpose free of rent and without any restriction as to the period of lease in favour of any local body or any association, society, company as the case may be. But it does not mean that the government can altogether throw the rules to winds and grant lease of the land in utter disregard to the scheme of the rules. The government's power to grant of lease free of rent and without any restriction as to the period of lease is not unlimited and other requirements as provided for cannot be dispensed with even when the government is exercising such power. Relevant considerations have to be kept in mind. All the enquiries are required to be made to process the application for grant of lease. Applications are required to be filed in accordance with the prescribed format. The discretion, if any, conferred on the government is only with regard to grant of lease free of rent and without any restriction as to the period of lease. At any rate, there is no decision as such taken by the government itself. No reasons are recorded in support of the decision taken at whatever level.
44. The discretion conferred upon the government is not an unlimited discretion. Rule 15 of the Lease Rules is to be read along with the other rules, as it is a part of package enabling the authorities concerned to deal with the government land. Any other interpretation may render the rule itself ultra vires.
45. At any rate, is there any unlimited discretion upon the government to deal with the government land in any manner it pleases to do so?
46. The government owns and controls vast extents of public land. The Constitution makers wanted that the ownership of the material resources of the community should be so made available to subserve the common good. The government is not like a private individual who can deal with his property in whatsoever manner. The government cannot pick and choose the person with whom it will deal, since the government is still a government when it is administering largesse and that it cannot, without adequate reason either distribute or take away the largesse arbitrarily. It is too elementary to reiterate the distinction between the public and private power.
47. In a decent society governed by rule of law and constitutionalism, it is unthinkable that the government, or any officer or authority of the government, possesses arbitrary power over the person or property including its own properties. There is nothing like unlimited discretion conferred upon the government or any of its authorities to deal with the government properties in accordance with one's own choice. May be, discretionary power is necessary to solve particular problems. It may be a toot, indispensable for individualisation of justice. But such discretion must be confined within clearly defined limits. Meaningful statutory standards and realistic procedural requirements are among the tools to control the discretionary power.
The Supreme Court in Jaisinghani Vs. Union of India, AIR 1967 SC 142, observed:
"The absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law." (emphasis is of mine).
48. The Alienation Rules as well as the Lease Rules prescribe meaningful statutory standards and realistic procedural requirements to be followed by the government and its officers in the matter of disposal/alienation/grant of lease of government lands. Such meaningful statutory standards are prescribes in order to avoid the risk of possible arbitrary use of discretionary power. Those rules are mandatory in nature. The alienation of the government lands or the lease of the same, as the case may be, in Telangana Area of the State of Andhra Pradesh is to be inconformity with the prescribed standards under the rules referred to hereinabove. Any decision by the authority or the government contrary to the said rules may have to be declared ultra vires. The power to alienate the government lands can be exercised only inconformity with the rules. The wide powers of the State and the discretion vested in the authority required them to be exercised in a fair manner and, the surest mode of exercise of power fairly is by following and observing the procedures prescribed by the statute or the rules, as the case may be. The observance of the procedure is not a matter of secondary importance. The procedural fairness and regularity have been the great bastion against arbitrariness.
49. The procedural requirements have not been followed at any stage by any of the authorities. The statutory rules are altogether ignored. The decision has resulted in public mischief. This court, when such public mischief is exposed, cannot refuse to interfere on the ground that such exposure is by a petitioner to whom no relief could be granted. The petitioner may not get any relief for itself. The petitioner may not have any right in the land in question. Lease may not be extended in its favour. But, those factors do not constitute any ground to uphold the ex facie illegal and improper decision of the government to allot its valuable land to respondents 5 and 6.
50. However, in the counter-affidavit filed by the 5th respondent, it is stated that the aim of the society is to function as a seat of higher learning with foremost object to impart such composite and Holistic Education and Integrated Knowledge and training in the Art, Philosophy and Science of living - beings that can make the world a better place to live in. It is claimed that to achieve the above stated aims, it has undertaken various educational activities, like education in values, knowledge based on re-evaluation of current concepts, education in ancient cultural and spiritual heritage and eradication of ignorance and superstitions etc. The society is stated to have established several departments or faculties throughout India. It is stated that the Prajapita Brahma Kumaris Ishwariya Vishwa Vidyalaya established in the year 1936, about 65 years ago, is the one and only spiritual University of its kind, giving spiritual and moral education for the entire humanity irrespective of religion, caste, creed, age and sex for the upliftment of the society from its present morass. It has established centres all over the India and in another 85 countries abroad. In India alone there are more than 6000 service centres and also more than 400 centres abroad. The other details mentioned in the counter affidavit about the achievements and programmes undertaken by the 5th respondent society need not be adverted to.
51. The land has been allotted to the 5th respondent society by the Government of Andhra Pradesh to establish an academy for better work to achieve the objects stated supra. May be so.
It is noteworthy to observe that none of these factors have been taken into consideration by the government for allotment of the land in question to the 5th respondent. The genuineness of the organisation and its bona fades are not at all doubted. None of the observations made in this order shall have any bearing whatsoever upon the bona fides of the 5th respondent society. The services rendered by the society for better living of the humanity need not be doubted.
52. But, at the same time, the achievements of the Society and its further intention to establish an academy for higher learning may not save the government's decision, which is otherwise an illegal and irregular one. The court, in this judicial review proceeding, is concerned with the validity of the decision making process of the government to allot the land. The requirements to observe statutory rules cannot be given a go bye. A decision, which is contrary to the statutory scheme, is liable to be struck down.
53. There is no need to refer in detail the averments made in the counter affidavit filed by the 6th respondent. The 6th respondent intends to establish an academy in Andhra Pradesh to serve the needy and talented people in Andhra Pradesh in the field of Tennis and to make the Tennis Village to be a world-class Tennis training center and an effective base to produce top class Tennis players from the State of Andhra Pradesh and the country at large. According to the averments made in the counter affidavit, the Government of Andhra Pradesh suo motu announced allocation of Ac.3-00 of land in Hyderabad for the purpose of establishing Tennis Academy by the 6th respondent in the State of Andhra Pradesh. There is no quarrel with the objects sought to be achieved by the 6th respondent. The issue relates to legality and constitutionality of the decision taken by the government.
54. There is no finding or even an observation that the land proposed to be alienated is for any "public purpose". There is nothing on record to show any public purpose parameters have been kept in mind.
55. Regulatory standards prescribed structuring the exercise of discretion by the State and its authorities cannot be violated by the State and the same cannot be countenanced by this court even in cases where the decision taken is not a mala fide one.
56. In Kasturi Lal Lakshmi Reddy (supra), the Supreme Court observed that "it is imperative in a democracy governed by the rule of law that governmental action must be kept within the limits of the law and if there is any transgression, the court must be ready to condemn it............ It may be pointed out that this ground of invalidity, namely, that the governmental action is unreasonable or lacking in the quality of public interest, is different from that of mata fides ..............."
57. Thus the decision, which is ultra vires the rules or the statute, as the case may be in a given case, need not be a mala fide one. But an ultra vires decision cannot be sustained even if it is a bona fide one. It is the duty of this court to keep the governmental action within the limits of law, and if there is any transgression, it is the plainest duty of the court to condemn it.
58. In the instant case on hand, the whole of the decision making process is vitiated since its inception. The decision suffers from both the procedural as well as substantial ultra vires. Serious illegality and irregularity has been committed in delivering the advance possession of the lands in question to respondents 5 and 6 and such delivery of advance possession is without any authority of law. Advance possession has been delivered may be on paper contrary to the Alienation Rules as well as the Lease Rules. The very decision proposing to grant lease for a period of 30 years taken subsequent to delivery of possession is contrary to rules.
59. For all the aforesaid reasons, the decision of the government to grant lease of the land to respondents 5 and 6 is declared illegal and ultra vires. The decision is accordingly set aside. The action of the District Collector, Ranga Reddy District in delivering the advance possession of the land in question to respondents 5 and 6 is also set aside.
60. The petitioner industry, however, is not entitled for any renewal of lease in its favour. The land shall continue to vest in the government and the government shall resume the land and take over the same from the possession of respondents 5 and 6. The land for all purposes shall be treated as government land and vests in the government.
61. The writ petition is accordingly ordered. There shall be no order as to costs.