Gujarat High Court
Ashutosh Sarkari Karmachari Co-Op. ... vs State Of Gujarat And Anr. on 20 October, 1994
Equivalent citations: (1995)2GLR1419, 1996 A I H C 435, (1995) 2 GUJ LR 1419, (1995) 1 CIVLJ 150, (1995) 3 CURCC 364
JUDGMENT A.N. Divecha, J.
1. The fixation of the price at Rs. 800/- per square metre for the land to be allotted to the petitioner is under challenge in this petition under Article 226 of the Constitution of India.
2. The facts giving rise to this petition are not many and not much in dispute. Certain parcels of land bearing final plot No. 955 of Town Planning Scheme No. 1 of Rajkot (the disputed land for convenience) was available for disposal under Section 23 of the Urban Land (Ceiling and Regulation) Act, 1976 (the Act for brief). It originally admeasured 14,266 square metres. It may not be out of place to mention at this stage that respondent No. 1 has passed one resolution on 30th May 1987 laying down certain guidelines for disposal of surplus land under Section 23 of the Act. A copy of the aforesaid Government Resolution is at Annexure-A to this petition. Thereunder, Co-operative Housing Societies comprising of Government employees as members are considered eligible for grant of surplus land at the prevalent market price without putting such land to auction. The petitioner is a Co-operative Housing Society having some 60 Government employees as its members. It appears that the petitioner made one application for allotment of some 6,900 square metres of land from the disputed land. It may be mentioned at this stage that one Sinchainagar Karmachari Co-operative Housing Society (Sinchainagar for convenience) and one Padmakunverba Karmachari Co-operative Housing Society (Padmakuverba for convenience) also applied for allotment of land from the disputed land. It appears that Sinchainagar was granted in all 1,495 square metres from the disputed land by the order passed by and on behalf of respondent No. 1 on 4th December 1991. Its copy is at Annexure-F to this petition. The price fixed for grant of such land to Sinchainagar was at Rs. 450/- per square metre. This was pursuant to the valuation given by the Deputy Town Planner of Rajkot by his communication of 13th August 1991. Its copy is at Annexure-E to this petition. It appears that about a year after the order at Annexure-F to this petition, Padmakunverba was also granted in all 3,976 square metres from the disputed land by the order passed by and on behalf of respondent No. 1 on 16th November 1992 at the rate of Rs. 475/- per square metre. Its copy is at Annexure-G to this petition. It may be mentioned at this stage that, under the Government Resolution at Annexure-A to this petition, respondent No. 1 has constituted Committees for processing applications for allotment of land. If the prevalent price of the land for which an application for allotment is made is Rs. 25 lakhs or less, the application would be processed by the Committee consisting of certain Secretaries mentioned in the Government Resolution at Annexure-A to this petition. If such price is above Rs. 25 lakhs, the Committee consisting of certain Ministers as mentioned in the Government Resolution at Annexure-A to this petition would process the application for allotment of surplus land. It is the case of the petitioner that Sinchainagar made its application for allotment of surplus land sometime in March 1991. The deponents of the affidavit-in-reply have, however, come with the case that such application was made on 17th January 1989. In the rejoinder affidavit the petitioner has disputed that position. According to the petitioner, Sinchainagar made its application on 17th January 1989 for allotment of land from some other surplus land and not from the disputed land. The application by Sinchainagar for allotment of the disputed land, according to the petitioner, was made in May 1991. This factual position is not seriously disputed by or on behalf of the respondents. I have, therefore, no hesitation in accepting the fact that Sinchainagar made its application for allotment of surplus land from the disputed land in May 1991. This becomes clear from one representation made by the petitioner to the concerned Minister for State in the Revenue Department on 9th March 1993. Its copy is at Annexure-J to this petition. It is an admitted position that the statements made in the representation at Annexure-J to this petition were never controverted by or on behalf of the respondents by causing any reply thereto. It is an admitted position on record that Padmakunverba made its application for allotment of land from the disputed land on 8th October 1991. The petitioner made its application for allotment of land from the disputed land on 26th March 1991. Its application was earlier in point of time. It demanded 6,900 square metres of land. The Committee of Secretaries appears to have processed that application in the initial stage along with other applications. A copy of the minutes of its meeting held on 15th January 1992 for the purpose is at Annexure-D to this petition. It transpires therefrom that the matter was decided to be referred to the Government for its decision in view of the guidelines contained in the Government Resolution at Annexure-A to this petition as the price of the demanded land would be more than Rs. 25 lakhs in view of the prevalent market price of Rs. 450/- per square metre. It appears that the petitioner's application was also simultaneously considered by respondent No. 1. It appears to have addressed one communication of 3rd October 1991 to the Competent Authority at Rajkot. That was replied to by the Competent Authority on 22nd January 1992. Its copy is at Annexure-I to this petition. It has been pointed out therein that the petitioner was a duly registered Co-operative Housing Society and its registration number was also mentioned. It was also pointed out therein that Sinchainagar was alloted 1495 square metres from the disputed land by the order passed on 4th December 1991. Other particulars were also stated therein. Nothing much should turn on it in view of the minutes of the meeting at Annexure-D to this petition which was held on 15th January 1992. It appears that the petitioner received some communication from the Government sometime in the last week of August or the first week of September 1992. The petitioner caused its reply thereto by its letter of 7th September 1992. Its copy together with one Annexure is at Annexure-H to this petition. It appears that the State Government called for some undertaking from the petitioner and such undertaking was submitted with the communication at Annexure-H to this petition. It appears that the petitioner heard nothing in the matter for quite some time thereafter. It, therefore, addressed a letter at Annexure-J to this petition to the Minister for State in the Revenue Department. Even thereafter nothing was heard by the petitioner with respect to their application for allotment of land from the disputed land. It thereupon approached this Court by means of a writ petition under Article 226 of the Constitution of India for a writ of Mandamus directing respondent No. 1 to consider its application for allotment of land from the disputed land. It came to be registered as Special Civil Application No. 5100 of 1993. By its order passed on 7th July 1993 therein, this Court directed respondent No. 1 herein to dispose of the petitioner's application as expeditiously as possible preferably before 30th September 1993. A copy of the aforesaid order passed by this Court on 7th July 1993 in the aforesaid writ petition is at Annexure-K to this petition. Thereupon, by one communication of 30th September 1993 issued by and on behalf of respondent No. 1, the petitioner was called upon to state whether or not it was willing to get allotment of the demanded land from the disputed land at the rate of Rs. 800/- per square metre. Its copy is at Annexure-L to this petition. That aggrieved it. It has, therefore, approached this Court by means of this petition under Article 226 of the Constitution of India for questioning the correctness of the fixation of the price of the land proposed to be allotted to the petitioner at the rate of Rs. 800 per square metre.
3. The grievance voiced by and on behalf of the petitioner is to the effect that the applications for allotment of land from the disputed land was made by the petitioner and Sinchainagar and Padmakunverba around the same time and yet the price fixed with respect to the land proposed to be allotted to the petitioner was nearly twice as much the price fixed for the land allotted to Sinchainagar at the rate of Rs. 450/- per square metre and to Padmakunverba at the rate of Rs. 475/- per square metre. According to Shri Patel for the petitioner, such fixation of price for the land proposed to be allotted to the petitioner is violative of the guarantee of equality contained in Article 14 of the Constitution of India. As against this, Shri Dave for the respondents has urged that respondent No. 1 has taken the decision with respect to fixation of the price of the land in question in accordance with its policy contained in the Government Resolution at Annexure-A to this petition, and as such its decision cannot be said to be violative of Article 14 of the Constitution of India. Shri Dave for the respondents had further urged that fixation of price of the surplus land available for disposal under Section 23 of the Act is purely an administrative action and the scope of judicial review of such administrative action is very limited. Unless such administrative action is found to be perverse, runs the submission of Shri Dave for the respondents, this Court need not interfere with it in exercise of its powers under Article 226 of the Constitution of India.
4. It cannot be gainsaid that applications for allotment of land from the disputed land were made by the petitioner, Sinchainagar and Padmakunverba around the same time. In fact, the petitioner's application for allotment of land was prior in the point of time. The opinion of the concerned Deputy Town Planner was obtained regarding the valuation of the disputed land. By the communication at Annexure-E to this petition, its author put the valuation thereof at Rs. 450/- per square metre. It is not in dispute that the price of the land demanded by Sinchainagar and Padmakunverba at that rate was below Rs. 25 lakhs and their applications were processed by the Committee of Secretaries in view of the Government Resolution at Annexure-A to this petition. The price of the land demanded by the petitioner at the rate ofRs. 450/- per square metre would obviolusly be more than Rs. 25 lakhs. Its application was, therefore, required to be processed by the Committee of Ministers in accordance with the Government Resolution at Annexure-A to this petition. It appears that there was inordinate delay in processing the petitioner's application for allotment of land from the disputed land. That has resulted in fixation of the price thereof at Rs. 800/- per square metre. That price has been fixed after obtaining the opinion of the Deputy Town Planner at Rajkot with respect to its valuation. That report is not on record. Its reference has, however, been made in the affidavit-in-reply filed by and on behalf of respondent No. 1. Shri Dave for the respondents has informed the Court that the record of the case was in the custody of the concerned officer instructing him in the matter. Shri Dave has fairly shown to me the report of the Deputy Town Planner at Rajkot putting valuation of the disputed land at Rs. 800/- per square metre at the relevant time. So far as that part of the fact-situation is concerned, there cannot be much quarrel. The fact, however, remains that the delay in consideration of the petitioner's application has resulted in putting a much higher price of the disputed land for the purpose of its allotment. The question is whether or not such delay has resulted in meting out unequal treatment to the petitioner vis-a-vis Sinchainagar and Padmakunverba.
5. It is true that, under the guidelines contained in the Government Resolution at Annexure-A to this petition, the surplus land is to be allotted to the applicants on the prevalent market rate and the crucial question is the market value of the land in question at the time of application or at the time of allotment. Ordinarily, the fixation of market price should be treated as on the date of allotment. However, in the present case, the date of allotment will not have to be taken into consideration for the simple reason that there was inordinate delay in consideration of the petitioner's application.
6. It may be noted that the land to Sinchainagar was allotted at the rate of Rs. 450/- per square metre by the order passed on 4th December 1991 at Annexure-F to this petition. Nearly one year thereafter, some land from the disputed land was allotted to Padmakunverba at the rate of Rs. 475/- per square metre by the order passed on 16th November 1992 at Annexure-G to this petition. The price-rise during the intervening period of one year was found to be Rs. 25/- per square metre only. The parcel of land allotted to the petitioner appears to have been made on or around 30th September 1993 at Rs. 800/- per square metre by one communication at Annexure-L to this petition, that is, nearly 10 months after the order at Annexure-G to this petition. The price rise during the intervening period is as much as Rs. 325/- per square metre. Ordinarily, it should pass comprehension. It might smack of mala fides also. I do not propose to enter into that aspect of the case at this stage.
7. It cannot be gainsaid that applications for allotment of surplus land available for disposal under Section 23 of the Act have to be disposed of as expeditiously as possible in order to avoid creation of any inequality with respect to the price at which such land may be allotted. If no surplus land is available for disposal, application for allotment may be kept pending. However, when land is available for disposal, applications should be disposed of as expeditiously as possible. Any delay in disposal of such applications might result into fixation of different prices at the time of allotment. It transpires from the record that the application of Sinchainagar was disposed of within seven months and that of Padmakunverba within about 14 months. Simply because their applications were to be considered by a different Committee from the Committee which was to consider the petitioner's application would not justify the inordinate delay in disposal of such applications. Inordinate delay in disposal of the petitioner's application for allotment of land has resulted in unreasonable fixation of its price vis-a-vis the price at which the land has come to be allotted to Sinchainagar and Padmakunverba. In that view of the matter, the fixation of price of the land proposed to be allotted to the petitioner can be said to be exorbitant or unreasonably high. It could not have been fixed at more than Rs. 500/- per square metre.
8. Shri Dave for the respondents has, however, urged that it would not be open to this Court to sit in appeal over the decision of respondent No. 1 regarding fixation of the price of the land to be allotted to the petitioner. In support of his submission, Shri Dave has relied on the binding ruling of the Supreme Court in the case of Tata Cellular v. Union of India reported in JT 1994 (4) SC 532. In that case, the question was regarding acceptance of a tender for operation of "Cellular Mobile Telephone Service" in four Metropolitan Cities of India, namely, Delhi, Bombay, Calcutta and Madras. A Committee was appointed to scrutinise the tender and to decide which tender deserves to be accepted. In that context, it has been held therein:
It is not for the Court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review and can be classified as under:
(i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.
(ii) Irrationality, namely, Wedenesbury Unreasonableness,
(iii) Procedural impropriety.
XXX XXX XXX The principles deducible from the above are:
(1) The modern trend points to judicial restraint in administrative action.
(2) The Court does not sit as a Court of appeal but merely reviews the manner in which the decision was made.
(3) The Court does not have the expertise to correct the administrative action. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.
(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often that not, such decisions are made qualitatively by experts.
(5) The Government must have freedom of contract. In other words, a fairplay in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wedenesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.
(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.
9. It cannot be gainsaid that the aforesaid ruling of the Supreme Court is binding to this Court. Even, according to this ruling, judicial review of an administrative action can be had on the ground of irrationality, namely, Wedenesbury Unreasonableness and/or Procedural Impropriety. As pointed out hereinabove, the inordinate delay in considering the petitioner's application has resulted in irrationality which can be styled as Wedenesbury Unreasonableness to borrow the aforesaid phraseology from the aforesaid ruling of the Supreme Court. The inordinate delay is also attributable to "Procedural Impropriety" again to borrow the phrase used in the aforesaid binding ruling of the Supreme Court. It cannot be gainsaid that the inordinate delay in consideration of the application is highly improper by any stretch of imagination unless exceptional circumstances are brought on record to justify such delay. No attempt is made by or on behalf of the respondents to bring on record the circumstances justifying the inordinate delay on the part of respondent No. 1 in considering the petitioner's application for allotment of surplus land from the disputed land. The action on the part of respondent No. 1 in fixation of the price of the land proposed to be allotted to the petitioner at Rs. 800/- per square metre can, therefore, be said to be tainted with "procedural impropriety". That action can certainly be reviewed by this Court under Article 226 of the Constitution of India in view of the aforesaid binding ruling of the Supreme Court.
10. In this connection, a reference deserves to be made to another binding ruling of the Supreme Court in the case oiKasturi Lai v. State of J. & K. . It has been held therein:
Where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or granting other forms of largess, the Government cannot act arbitrarily at its sweet will. 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 largess may be granted and the other in regard to the persons who may be recipients of such largess. Unlike a private individual, the State cannot act as it pleases in the matter of giving largess and it cannot choose to deal with any person it pleases in its absolute and unfettered discretion.
Every activity of the Government has a public element in it and it must, therefore, be informed with reason and guided by public interest. If the Government awards a contract or leases out or otherwise deals with its property or grants any other largess, it would be 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.
There may be an infinite variety of considerations which may have to be taken into account by the Government in formulating it policies and it is on a total evaluation of various considerations which have weighed with the Government in taking a particular action, that the Court would have to decide whether the action of the Government is reasonable and in public interest.
One basic principle which must guide the Court in arriving at its determination on this question is that there is always a presumption that the Governmental action is reasonable and in public interest and it is for the party challenging its validity to show that it is wanting in reasonableness or is not informed with public interest. This burden is a heavy one and it has to be discharged to the satisfaction of the Court by proper and adequate material. The Court cannot lightly assume that the action taken by the Government is unreasonable or without public interest. But where it is so satisfied, it would be the plainest duty of the Court under the Constitution to invalidate the Governmental action. This is one of the most important functions of the Court and also one of the most essentials for preservation of the rule of law. 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 mala fides though it may, in a given case, furnish evidence of mala fides.
The aforesaid binding ruling of the Supreme Court in the case of Kasturi Lai (supra) provides a complete answer to the submission urged before me by Shri Dave for the respondents to the effect that the petitioner cannot claim the allotment of land from the disputed land as a matter of right and the State Government is, therefore, not bound to allot the land at any less price.
11. It is not necessary for me to burden this judgment by referring to various other readings. Suffice it to mention that the principles regarding judicial review of administrative actions are also stated in the binding rulings of the Supreme Court in the case of Sriniketan Co-op. G.H. Society Ltd. v. Vikas Vihar Co-op. G.H. Society Ltd. and in the case of Union of India v. Hindustan Development Corporation .
12. Applying the aforesaid principles of law enunciated by the Supreme Court in its aforesaid binding rulings, there is no hesitation in coming to the conclusion that the fixation of price of the land proposed to be allotted from the disputed land to thejietitioner at Rs. 800/- per square metre is arbitrary and cannot be upheld in law. That decision deserves to be quashed and set aside. The matter deserves to be remanded to respondent No. 1 for fresh fixation of the price of the land to be allotted to the petitioner from the disputed land in the light of this judgment of mine.
13. In the result, this petition is accepted.
14. The fixation of price of the land to be allotted to the petitioner at the rate of Rs. 800/- per square metre in terms of the communication at Annexure-L to this petition is quashed and set aside. The matter is remanded to respondent No. 1 for its fresh decision according to laws in the light of this judgment of mine. Respondent No. 1 is directed to take its decision as expeditiously as possible but in any case latest by 31st December 1994. Rule is accordingly made absolute to the aforesaid extent with no order as to costs.