Gujarat High Court
Suo Motu vs State Of Gujarat on 3 April, 2001
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 13550 of 2000
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SUO MOTU
Versus
STATE OF GUJARAT
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Appearance:
MR MIHIR H JOSHI for Petitioner
MR ARUN D.OJA, Govt.Pleader for State of Gujarat.
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CORAM : MR.JUSTICE B.C.PATEL
and
MR.JUSTICE D.A.MEHTA
Date of Order: 03/04/2001
ORAL ORDER
(Per : MR.JUSTICE B.C.PATEL)
1. The Apex Court in case of Secretary, Jaipur Development Authority Vs. Daulat Maljain, reported in (1997) SCC 35 has pointed out in para 12 that - "the Government acts through its bureaucrats, who shape its social economic and administrative policies to further the social stability and progress socially, economically and politically. Actions of the Government, should be accounted for social morality. Therefore, the actions of the individuals would reflect on the actions of the Government. The actions are intended to further the goals set down in the Constitution, the laws or administrative policy. The action would, therefore, bear necessary integral connection between the 'purpose' and the end object of public welfare and not personal gain. The action cannot be divorced from that of the individual actor. The end is something aimed at and only individuals can have and shape the aims to further the social, economic and political goals".
2. It is further pointed out in paras 14 and 15 that
- " the so-called public policy cannot be a camouflage for abuse of the power and trust entrusted with a public authority or public servant for the performance of public duties. Misuse implies doing of something improper. The essence of impropriety is replacement of a public motive for a private one. When satisfaction sought in the performance of duties is for mutual personal gain, the misuse is usually termed as corruption. The holder of a public office is said to have misused his position when in pursuit of a private satisfaction, as distinguished from public interest, he has done something which he ought not to have done. xxx xxx xxx The rules of code of conduct for political executives, public servants and private entrepreneurs, emphasising merit and regulated system of appointment in State bureaucracy and stimulating pride in public service, would generate remedies for political corruption". Mr.Mihir Joshi, learned Counsel heavily relied on this decision of the Supreme Court as also the another decision of the Apex Court in the case of Shiv Sagar Tiwari Vs. Union of India and others, reported in (1997) 1 SCC 444. Mr. Joshi submitted that while interpreting Article 21, the Apex Court has pointed out as under :
"Life, livelihood and shelter are so mixed, mingled and fused that it is difficult to separate them. To take away life, it would be enough to take away livelihood; and to earn livelihood, which in urban areas is ordinarily at places away from one's own home and heart, shelter would be necessary - be it a house or even a pavement".
2. In view of the facts which were placed before the Court as directed by the Hon'ble Chief Justice, the learned Government Pleader Mr.Arun D.Oza as well as Mr.Amit Panchal, learned Advocate were asked by the Court as Court Commissioner to assist and visit the site and picture has been placed before the Court by both of them. After the visit action was required to be taken for removal of encroachment where a large area of land was encroached upon as if it was given by the Government for permissible use, i.e. for the purpose of parking of the vehicles. It is also reported that in breach of 'sanad` plot of land allotted was kept vacant or a small house not worth living was constructed to get out from the clutches of the conditions of Sanad. Permission was obtained to occupy and thereafter the same was transferred. Some premises are rented without prior permission of the Government in violation of conditions. In some cases plots of larger areas are given. Sufficient material is placed before the Court indicating that the Government is not able to watch the procedure closely where more particularly in some of the cases the occupiers of plots are high ranking officers or are influencial persons.
3. It is required to be noted that in the instant case, the Collector in his affidavit has pointed out that the land in Gandhinagar was acquired for the construction of the new capital of Gujarat, that is, Gandhinagar in the name of Executive Engineer, Capital Project under the administrative control of Roads and Building Department ( R& BD). That all policy decisions are taken and substantive issues are dealt with at the Government level in R & BD. The implementation of the same is carried out by the Collectorate in its Land Allotment Branch which is headed by a Mamlatdar. There is an office of the Chief Architect and Town Planner (for short 'CAPT') of the R & BD and it is for him to discharge the following duties :
i) approval of building plan or map,
ii) issue of Occupancy Certificate,
iii) ensuring that the construction is as per the approved plan and
iv) reporting to the Land Allotment Branch of the Collectorate, if any violation is noticed in any technical matters, for further necessary action as per the conditions of the Sanad and relevant Government Resolution (GR), The Collector has further stated that the decision to allot plot of larger size is taken by the Government in R & BD. In para 3(a) he has pointed out that action was taken with regard to three cases. Even after the matter was heard by this Court he has taken action with regard to other three plots. He has specifically stated that 13,000 and odd plots are already allotted at concessional rates to the employees, officers, MPs and MLAs etc. He has pointed out the imposition of penalty for the delay in construction of house which seems to be the mockery considering the amount to be levied. We have taken into consideration the other affidavit also.
4. It is required to be noted that the land was acquired by the State Government under the Land Acquisition Act. As the land is acquired under the Land Acquisition Act, ordinarily it must be disposed of by public auction and not by private arrangement so as to see that the coffers may not suffer as the amount is paid from the public funds for acquisition. The Constitution which is given to ourselves, it is stated as under :
"We, the people of India, having solemnly resolved to constitute India into a [sovereign socialist secular democratic republic] and to secure to all its citizens :
Justice, social, economic and political; Liberty of thought, expression, belief, faith and worship;
Equality of status and of opportunity; and to promote among them all Fraternity assuring the dignity of the individual and the [unity and integrity of the Nation]; In our constituent assembly this twenty-sixth day of November,1949, do hereby adopt, enact and give to ourselves this Constitution."
While giving land at a cheaper rate whether this aspect is kept in mind or not and while permitting the plot holders to sell the land whether this aspect was kept in mind or not is to be seen. In this case, even the Government Servants who are not permanently required to serve at the offices situated at Gandhinagar have been given plots as a result of which on account of their transfer or if they decide to settle at any other place they would obviously either try to earn income either by rent or by way of disposal of the constructed property with land if there is any construction. In some cases, who were not working at Gandhinagar were allotted plots. If at all, the Government wanted to see, as contended by Mr.Joshi, learned Counsel appearing in the matter, that down trodden or the needy persons were assisted by the Government there could be no objection and those who were permenantly employed and were not transferable outside Gandhinagar were considered for allotment question would be different as they would be permanently residing at Gandhinagar or the persons who are likely to retire were given plots matter would be different. At this juncture, we are not required to discuss in detail. The plots were allotted with certain conditions. One such important condition is that the allottee shall use it for the purpose of his personal residence and that is reflected in the Sanad issued by the Government. It was never the intention of the policy makers to allow the allottees to sell the plot without prior permission. However, if there is a special case the Government may consider whether to grant the permission or not. In some cases, on account of bare necessity if the person concerned seeks permission to dispose of the property with prior permission he may do so. But in such cases the Government may record the reasons. It is also found that in some of the cases the persons have constructed the houses and have given the same on rent without prior permission of the Government. In a given case the residential accommodations are used for the commercial purpose by which the aim and object is frustrated.
5. A resolution dated 3/4/1999 has been produced on record in which it is stated that permission is granted to let the property on rent with certain conditions namely, after completion of construction and after five years from the date of occupancy certificate being granted the property can be given on rent for the residential purpose only. However, for the breach of any condition laid down in the sanad by the tenant, the holder/owner would be held responsible. One such condition is that the property cannot be disposed by executing a lease deed for 99 years. So far as the persons who are not governed by resolution dated 3/4/1999 are concerned, for their benefit another resolution was passed by the Government on 25/11/2000. In this resolution it was resolved that before the property is given on rent the officer has to obtain permission from the appropriate authority under the rules viz. Gujarat State Civil Service (Discipline & Appeal) Rules, and only after completion of five years from the date of construction and occupancy certificate the property can be given on rent for the purpose of residence only. It was further resolved that if the property is given on rent for the purpose other than residence, than within a period of three months the property shall be got vacated. Other conditions are same as in the earlier resolution. It is certain that both the resolutions prohibit the use of residential premises constructed on a plot for commercial purpose. However, one thing is certain that in some of the cases we have found that property is given on rent and even the permission is granted mechanically without applying the mind. In some cases no permission is obtained. As we have indicated earlier that the land/plot belongs to the Government and that cannot be used for the purpose other than which it was intended for at the time it was given to a person. We are not examining at this stage the legality or validity of the allotment of plot or of larger size of plot but, suffice it to say at this juncture that these two resolutions prohibit the commercial use of a property as also letting out the property within five years from the occupancy certificate and without permission after five years. The question that arises : is the allotment intended to provide facilities for income ? Mr.Mihir Joshi, learned Counsel appearing in the matter pointed out that it is an admitted position that in some of the cases regularisation is permitted for the breach at a nominal rate which amounts to nothing but a mockery. Mr.Joshi further submitted that the resolution dated 29/6/1998 makes it very clear that the plots of only 330 sq.yds. shall be allotted and not of any larger size. Mr.Joshi further submitted that despite this policy decision taken by the Government, the Government has granted plots of larger size even in exchange of smaller size of plots and that too within a very short period those plots were permitted to be transferred. This conversion according to him is not permissible and a transfer after conversion of plot into larger size is also not permissible. If the plot of bigger size is allotted subsequently then within a short period a person cannot transfer the plot. If such transfers are allowed it would mean disposal of Government property in an arbitrary or illegal manner.
6. It is further submitted that there is sufficient material placed by the Government indicating conversion into larger size of plots and transfer of such plots. Mr.Joshi has rightly submitted that the Government must be asked to act consistently with the policy of 29/6/1988 and should not act in such a way to see that richer man may get the benefit while a man who is not in a position to spend higher amount may not get the plot of a larger size. He has submitted that this is in violation of the Constitution of India. Mr.Joshi further submitted that from the record it is very clear that the Government Servant to whom the plot is allotted will not be able to transfer the plot but will have to handover the plot to the Government. He submitted that the open plot cannot be transferred. With a view to transfer the plots, small houses not fit for residence in the area are constructed and thereafter, plots are transferred. This illegality, must be stopped is the submission made by the Counsel. It is further submitted that examination of various sanads on record show that in conditions there is no consistency. He read out certain sanads to point out that suitable changes are made in the sanads. If Government grants plots to similarly situated persons at the same place, there can not be different conditions. Thus, he pointed out that there is nothing like policy but as per convenience, conditions are incorporated which amounts to acting contrary to the policy. There is a specific condition that even if there is any construction on the plot he may not transfer the same without prior permission of the Government and that too only in a special case and not otherwise. This condition has been violated in some of the cases. When we are examining the policy we would say that the Government shall not allow the transfer of plots in any manner whatsoever till the disposal of this petition. We also direct the Registry to issue a public notice at the cost of the State Government in the newspapers published from Ahmedabad in vernacular and English language having larger circulation at Ahmedabad and Gandhinagar.
7. It was submitted on behalf of the petitioner that one must not forget that Government is holding property in trust. The Government bureaucrats are required to preserve the property of the Government and are not under any circumstances authorised to use the property in violation of principles laid down in the Constitution. Article 14 of the Constitution mandates that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Even in case of reasonable classification the legislature is required to take care to reasonably classify the persons for legislative purposes. There is prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. However, it is open for the State to make any special provisions for the humane ancilliaries. The State can also make special provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. Article 21 of the Constitution has been explained by the Apex Court that right to life enshrined in Article 21 mean something morethan survival for animal existence. It would include right to live with human dignity. Right to live also include reasonable accommodation. Article 38 of the Constitution of India which is relevant and which is found in Chapter IV pertaining to that of principles of the State policy is as under :
"38. State to secure a social order for the promotion of welfare of the people. -
[(1)] The State shall strive to promote the
welfare of the people by securing and
protecting as effectively as it may a social
order in which justice, social economic and
political, shall inform all the institutions of the national life.
[(2)] The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations."
The State has to see that inequalities in income is minimised. The State has to make an endeavour to eliminate inequalities in status, facilities and opportunities.
Article 39 cast duty on the State that it shall direct its policy towards security that the ownership and control of the material resources of the community are so distributed as best to subserve the common good. So far as right to work, education and public assistance is concerned Article 41 reads as under :
"41. Right to work, to education and to public assistance in certain cases. - State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want."
So far as public health is concerned Article 47 mandates as under :
"47.Duty of the State to raise the level of nutrition and the standard of living and to improve public health. - The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health."
It is also observed with regard to right to work, education and public assistance the State shall within the limits of its economic capacity and development make effective provisions. These principles are required to be borne in mind when the State is required to preserve the property in a trust and is directed to make use of the property in such a way so as to minimise inequalities. State cannot provide opportunities so as to create inequalities. The entire policy encompassing allottment of plots of land and all subsequent stages thereto will have to be examined and tested in light of aforesaid principles enshrined in the Constitution.
8. There are very few lucky persons in this country who are getting employment in Government service. The Government has made all possible provisions by way of rules and regulations so as to protect their service and evenafter retirement to provide retiral benefits. The persons who are in Government service are also provided while in service either free housing accommodation or in absence of that house rent allowance. The State Government is taking care of the health of not only of the employees but members of their family. Thus, once the person is in Government service his all worries are with the State and the employee concerned is expected to discharge the duties without fear or favour so as to return the benefits which are offered by the State.
9. It was submitted that in this country for average income of a citizen, the opportunities are made available for employment but large number of people are complaining that they are without work. On one hand those who are lucky to get employment in the State Government are given good benefits and therefore obviously they are in much more better condition than others.
10. The attention of the Court was drawn to the effect that the land which is acquired by the State Government for the benefit of general public is required to be used in the interest of public at large and the land cannot be utilised for the benefit of a privileged class only. It is submitted before us that even the benefit which is granted has been misused as a result of which that class has become richer and more privileged and the others are the sufferers. The learned Counsel submitted that there is no consistent policy in allotting the plots. Even the conditions are not consistent in all the cases and if the conditions are not suitable they are changed.
11 It was further submitted that so far as local authorities are concerned viz. under the provisions contained in The Bombay Provincial Municipal Corporations Act,1949 and The Gujarat Municipalities Act,1963, there are provisions with regard to disposal of properties. So far as The Bombay Provincial Municipal Corporations Act,1949 is concerned one will have to refer Section 79 to find out the provisions governing disposal of municipal property. Reading the provisions it appears that immovable property or any right belonging to the Corporation may be sold, leased or otherwise transferred at the current market value. In view of the proviso if there is a question of lease or transfer of immovable property to a member of scheduled castes, scheduled tribes or any other backward class specified as such class in order of the President under clause (3) of Article 338 of the Constitution or any such sale, lease or transfer to a public charitable trust for the purpose of construction or maintenance of public hospital may be effected with prior sanction of the State Government for consideration less than such market value to such extent as the State Government may approve. In other statutes in the rules made thereunder the provisions are made with regard to transfer of property. However, the authorities under Acts are required to act consistently and in accordance with law and the public property is required to be dealt with strictly in accordance with provisions under which the property is held.
12. The public trust doctrine is a part of Indian Law. This public trust doctrine in our country as shown from Article 21 of the Constitution (M.F.Builders Pvt.Ltd. Vs. Radhe Shyam Sahu) reported in (1999) 6 SCC 464, as indicated by the Government Pleader appearing in the matter, the Government has laid down policy and as per the policy the Government is allotting plots to the Government servants. We have indicated that the plots are not given to only persons who are permanently residing at Gandhinagar. There are cases where the plots have even been allotted to the persons who had never served at Gandhinagar. The plots are allotted to not only to a society consisting of members of scheduled castes, scheduled tribes or any other backward class specified as such class in the order of President under clause (3) of Article 338 of the Constitution but is given to others as well. The Supreme Court has pointed out what creamy layer is. In fact, there is one class which is unemployed and is not capable to earn because no opportunities are made available to them. There is another class which has got opportunities and is earning. Not only earning but getting all benefits including retiral benefits after retirement. If the State has to make endeavour to eliminate inequalities the State is required to strive to minimise the inequalities in income. For bringing such a state of affairs the State is required to see that except the benefits which are available under the legislation no extra benefits should be conferred upon a class so as to see that other class is deprived on account of the fact that the persons who are not appointed in Government service are deprived in violation of their fundamental rights. When these persons were already allotted quarters for residence during the tenure of their service or under the statute in view of entitlement to get house rent allowance or housing accommodation by giving land to these persons at a cheaper rate and permitting them to sell the land with certain conditions in fact, inequality has been created.
13. It was also submitted that in the name of the Government policy the land is being allotted/distributed. Why discretion has been conferred without any guidelines. Even under the statute if the discretion is conferred it is required to be exercised reasonably and that too in consonance with public policy. The law says that it must be exercised for public good and for public cause. The resultant effect of grant of relief in exercise of such power has to be balanced between public interest and individual interest.
14. Reliance has been placed by the State Government on the provisions contained in the Bombay Land Revenue Code,1879. In view of the resolution dated 24/6/1969, the Government issued certain instructions for the disposal of plots in capital township of Gandhinagar vide G.R.No.COC-1067/178-R dated the 13th January,1969. The Government has issued instructions for disposal of the plots.In view of section 37, power to dispose of the Government land is vested in the Collector which is a statutory authority. However, power to dispose of the Government land which is vested in the Collector under sections 37 and 62 of the Bombay Land Revenue Code is statutory power and if the power is said to have been exercised ultravires the Code and the provisions of equality enshrined under Article 14 of the Constitution, such exercise of power would be bad. The person entitled to dispose of the land in question has to dispose of in accordance with law and consistent policy. However, it is not open while disposing of the land in question to consider extraneous and irrelevant material. It is certain that the land which is granted under The Bombay Land Revenue Code is for permissible use only i.e. only the occupancy right is given and the grant is in the nature of new and impartible tenure. It is submitted that thus transfer by a person would be illegal. In the year 1969 the Government took a decision that the lands shall be divided into appropriate plots and shall ordinarily be sold outright by public auction, but in the case of (i) Cooperative Housing Societies, (ii) Non-Profit making institutions for Charitable, religious and social welfare purposes, (iii) educational institutions, (iv) public utility undertakings, (v) Newspaper concerns, (vi) the Government of India and
(vii) in such other cases as the Government may decide, on merits, the sale may be effected by allotment without auction. Six exceptions were carved out at initial stage. However, by providing clause to make allotment without auction the Government has decided that the Government may decide on merits and sale may be affected without auction. No guidelines whatsoever have been prescribed. By another resolution dated 24/6/1969 the Government has issued a resolution indicating that the permanent government servant desirous of purchasing land at Gandhinagar for residential purposes on submitting an application the same will be considered as mentioned in that resolution. The Government issued resolution to the effect that retired servant of the State Government should also be treated eligible for allotment of residential plots in Gandhinagar at a concessional rate as in the case of serving State Government employees. Thus, it appears that the Government was anxious to see that the Government servants working at Gandhinagar are provided plots. The size of the plot was also determined considering the status. Initially eligibility for the maximum size of the plot was 330 sq.mts. But it appears that vide resolution dated 25/7/1974 the eligibility for the size of the plot was increased at the maximum 500 sq.mtrs. and maximum limit was applicable in case of three categories only. It is pointed out that largest size of plots have been allotted in contravention of the policy itself.
15. In view of what is stated hereinabove we are of the view that subsequent resolutions dated 3/4/1999 and 25/11/2000 shall not be enforced by the Government and we further direct that the Government shall not permit the transfer of plots.
S.O. to 11/04/2001 for further direction.
Sd/- Sd/-
(B.C.Patel, J) (D.A.Mehta, J) m.m.bhatt