Gujarat High Court
Khemraj Tejaji Desai vs Gujarat Industrial Development ... on 16 December, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/4934/2016 CAV JUDGMENT DATED: 16/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4934 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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KHEMRAJ TEJAJI DESAI
Versus
GUJARAT INDUSTRIAL DEVELOPMENT CORPORATION (GIDC) LTD & 4
other(s)
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Appearance:
MR PJ KANABAR(1416) for the Petitioner(s) No. 1
MR. BHAUMIK DHOLARIYA(7009) for the Petitioner(s) No. 1
MS ADITI P KANABAR(5650) for the Petitioner(s) No. 1
MR.Y.N.RAVANI, ADVOCATE for MR KALPESH N SHASTRI(1739) for the
Respondent(s) No. 5
MR RD DAVE(264) for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 16/12/2022
CAV JUDGMENT
1. The present petition has been filed by the Page 1 of 32 Downloaded on : Sat Dec 24 03:45:04 IST 2022 C/SCA/4934/2016 CAV JUDGMENT DATED: 16/12/2022 petitioner for the following reliefs:
"A. YOUR LORDSHIPS may be pleased to admit this Special Civil Application;
B. YOUR LORDSHIPS may further be pleased to declare the approach of respondent Corporation towards the petitioner to be highly discriminatory, arbitrary, mala-fide, de hors the Circular Dated: 28/08/2012 Annexure A to the petition and bias towards respondent no.5 for extraneous consideration/s.
BB. YOUR LORDSHIPS may further be pleased to issue a writ of certiorari or any other appropriate writ, Order or direction in the nature of certiorari quashing and setting aside the Circular dated 16/02/2016 (Annexure "K") being ex facie illegal, arbitrary, discriminatory, irrational and de hors the object and purpose of the Gujarat Industrial Development Act, 1962 and public policy to meet with the ends of justice;
C. YOUR LORDSHIPS may further be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus quashing and setting aside the allotment dated:31/01/2014 of plot admeasuring 400 Sq. Mts. from the plot No.362/2/B in favour of respondent no.5 being illegal, arbitrary, de hors the Circular dated; 28/08/2012 in the facts and the circumstances of the case and in the interest of justice;"Page 2 of 32 Downloaded on : Sat Dec 24 03:45:04 IST 2022
C/SCA/4934/2016 CAV JUDGMENT DATED: 16/12/2022
2. Facts in brief indicate that the petitioner on 07.08.1997 has been allotted plot no.353 admeasuring 962.50 square meters in Kathvada GIDC. The petitioner has established an industry named Motisagar Utensils Industry in the said plot. The GIDC had a policy circular viz. circular dated 28.08.2012 which provided that with a view to give benefit to the existing industries, it was possible for an existing industry to get an adjacent plot. The petitioner accordingly made an online application for an adjacent plot bearing no.362/2/B on 23.09.2014 as it was situated behind the petitioner's existing industry across the road by 20 feet. It is the case of the petitioner that while the application was pending GIDC came out with subsequent circular dated 15.03.2013 which made it further clear that the plot situated in the radius of 100 meters of the Page 3 of 32 Downloaded on : Sat Dec 24 03:45:04 IST 2022 C/SCA/4934/2016 CAV JUDGMENT DATED: 16/12/2022 existing industry shall also be considered. By a circular dated 13.11.2013, it was also provided that while allotting the adjacent plot an additional premium of 30% will be charged. By a circular of 06.05.2015, it was decided that the allotment shall be on merits.
3. It is the case of the petitioner that before this application for online allotment could be approved, the GIDC with a view to facilitate the respondent no.5 issued a circular dated 14.07.2015, which provided that the provision of allotment of plots adjacent to the existing plot within the radius of 100 meters was done away with and was substituted by a provision that a plot which has a common plot would be treated as a plot adjacent to the existing plot. In light of this circular, the GIDC by a communication dated 29.07.2015 informed the petitioner that its Page 4 of 32 Downloaded on : Sat Dec 24 03:45:04 IST 2022 C/SCA/4934/2016 CAV JUDGMENT DATED: 16/12/2022 application for allotment of adjacent plot was treated to have been filed.
4. It appears that the respondent no.5 which was also an occupant of plot nos.375 allotted in the year 2003 and having been allotted two subsequent plots of 400 meters and 2100 square meters viz. plot nos.362/2/A and 362/2/A in the years 2012 and 2014 applied for allotment of plot no.362/2/B3 i.e. 362/2/B. Having so applied, after having succeeded in applying for two other plots the application was initially rejected as per the file noting, it was subsequently sanctioned by a letter dated 02.03.2016 when a request was made by the respondent no.5 on 12.04.2015. This allotment of plot no.362/2/B to the respondent no.5 rather than allotting the same to the petitioner is a subject matter of challenge in this petition. Hence, the prayers. Page 5 of 32 Downloaded on : Sat Dec 24 03:45:04 IST 2022 C/SCA/4934/2016 CAV JUDGMENT DATED: 16/12/2022
5. Mr.P.J.Kanabar learned counsel for the petitioner has taken the Court to the policy circular dated 28.08.2012 and submitted that as per Clause-C of the policy, the ambit of the adjacent plot was that of the plot being across the road away by 100 meters. Plot No.362/2/B admeasuring 1300 square meters was across the road, 20 feet away from the existing plot and in light of the policy circular an application was made by the petitioner.
5.1 Mr.Kanabar would submit that pending the application, which was acknowledged by the GIDC on 01.10.2014, the circular of 28.08.2012 was clarified by a separate circular of 15.03.2013 that a plot within a distance of 100 meters would be considered as an adjacent plot. A further circular was issued on 13.11.2013 which provided that while allotting an adjacent plot it Page 6 of 32 Downloaded on : Sat Dec 24 03:45:04 IST 2022 C/SCA/4934/2016 CAV JUDGMENT DATED: 16/12/2022 will be open for the GIDC to charge additional 40% premium. In other words, the petitioner in light of the policy circulars was entitled to an allotment of plot 362/2/B. 5.2 Mr.Kanabar would submit that with a view to facilitate allotment of a plot to the respondent no.5, the GIDC came out with a circular dated 14.07.2015 by which the policy of a plot being adjacent was restricted to one which had a common wall. The circular further provided that all those applications which were filed earlier were treated to have been filed. In light of this, according to the petitioner's counsel, the GIDC issued a communication dated 29.07.2015 informing the petitioner that his application for allotment of a plot be treated as 'filed' in light of the circular dated 14.07.2015.
Page 7 of 32 Downloaded on : Sat Dec 24 03:45:04 IST 2022 C/SCA/4934/2016 CAV JUDGMENT DATED: 16/12/2022 5.3 Mr.Kanabar would further submit that on 24.08.2015, the request of the petitioner for allotment of the plot was rejected on the ground that plot 353 was the existing plot was not a plot adjacent to plot no.362 in light of the policy of 14.07.2015 and the same was therefore rejected. 5.4 Mr.Kanabar would further submit that the circular of 16.02.2016 was also challenged by the counsel for the petitioner on the ground that this policy was made so as to see that the respondent no.5 would get a plot in light of the interpretation that a plot will be treated as an adjacent plot only if it had common wall. He would read the terms and conditions to indicate that the policy provided that those who had earlier applied will get one more chance of allotment and the respondent no.5 having been initially allotted plot no.375 and thereafter Page 8 of 32 Downloaded on : Sat Dec 24 03:45:04 IST 2022 C/SCA/4934/2016 CAV JUDGMENT DATED: 16/12/2022 having been allotted two plots on subsequent applications for expansion was facilitated an additional chance by virtue of this policy circular. This according to the petitioner was done purely with a view to favour the respondent no.5 whose application for allotment of this very plot made on 24.11.2014 was rejected and when such an application was made for the second time on 04.12.2015, the same was reconsidered obviously with a view to favour the respondent no.5.
6. Mr.R.D.Dave learned counsel for the GIDC would make following submissions:
6.1 Mr.Dave would draw the Court's attention to the prayers made in the petition and submit that the petitioner has to satisfy the Court with regard to the eligibility of he being entitled to a Page 9 of 32 Downloaded on : Sat Dec 24 03:45:04 IST 2022 C/SCA/4934/2016 CAV JUDGMENT DATED: 16/12/2022 plot. He would submit that even if all the three prayers were to be considered and granted, even then the petitioner would not be entitled to the allotment. Mr. Dave would submit that without challenging the circular of 28.08.2012, no relief can be granted to the petitioner. He would submit that the policies in question especially that of 2012 and 2015 are policies of allotment of plot and an existing plot holder should have a plot bigger than the one that is claimed. In the case on hand, the petitioner's existing area of the plot was 962.50 square meters whereas this allotment sought was for a bigger plot for a 1300 square meters. He would further submit that clause 3 of the policy provided that there should be no unauthorized construction on the existing plot and what was found on investigation in case of the petitioner was that there was an unauthorized construction as is evident from the Page 10 of 32 Downloaded on : Sat Dec 24 03:45:04 IST 2022 C/SCA/4934/2016 CAV JUDGMENT DATED: 16/12/2022 file notings.
6.2 To Mr.Kanabar's reliance extensively on the file notings produced with the petition and the rejoinder, Mr.Dave would submit that in the petition under Article 226 of the Constitution of India, file notings can never be relied upon.
Relying on the map produced in the paper-book, Mr.Dave would submit that the plot allotted to the respondent no.5 is adjacent to plot 362/2/A/1 and 362/2/A/2 in light of the policy in place and therefore no fault can be found with the policy in question.
6.3 Mr.Dave would further submit that it is not open for the Court to examine the policy decisions of the Corporation when such policies are made in the best commercial interest of the GIDC. He would submit that the policy circulars Page 11 of 32 Downloaded on : Sat Dec 24 03:45:04 IST 2022 C/SCA/4934/2016 CAV JUDGMENT DATED: 16/12/2022 cannot be a subject matter of review. 6.4 In support of his submission, Mr.Dave would rely on a decision of the Supreme Court in the case of Balco Employees Union (Regd.) vs Union Of India & Ors reported in AIR 2002 SC 350. He would also rely on the decision of the Supreme Court in the case of State of Punjab v. Anshika Goel rendered in Civil Appeal No.317 of 2022 in support of his submission that a Court in a petition under Article 226 of the Constitution of India cannot interfere with the policy decision.
7. Mr.Ravani appearing for Mr.Shastri learned advocate for the respondent no.5 would make the following submissions:
7.1 Mr.Ravani would submit that initially the Page 12 of 32 Downloaded on : Sat Dec 24 03:45:04 IST 2022 C/SCA/4934/2016 CAV JUDGMENT DATED: 16/12/2022 circular of August 2012 provided for allotment of a plot where 'adjacent plot' was a plot across the road, whereas, subsequent thereto, in light of the policy dated 16.02.2016, a plot having a common wall was treated as one adjacent to the existing plot.
7.2 Mr.Ravani would submit that the petitioner cannot be said to be person aggrieved. Plot allotments were made to the respondent no.5 after plot allotment of Survey No.375 in the years 2012 and 2014 as far as plots 362/2/A/1 and 362/2/A/2 are concerned, which was never a subject matter of challenge.
7.3 Mr.Ravani would further submit that the respondent no.5 was an industry which required additional plots in light of the business operations it was undertaking. The respondent Page 13 of 32 Downloaded on : Sat Dec 24 03:45:04 IST 2022 C/SCA/4934/2016 CAV JUDGMENT DATED: 16/12/2022 no.5 expecting to reach turnover of Rs.100 crores and having imported machinery worth Rs.10 crores, having started an industry at plot no.375 had initially applied for 4740 square meters of the plot at plot no.62, whereas, it was at the relevant time allotted only 2100 square meters by dividing plot no.362/2. As a result of its growth, it applied for an additional allotment of 400 square meters which it was allotted in the year 2014 and in light of this, an additional plot of 1300 square meters was sought to be applied for which application was granted in light of the amended provision pursuant to the circular of 14.07.2015 and the circular of 16.02.2016.
7.4 Mr.Ravani would submit that in light of the decision of the Supreme Court in case of Ritu Maheshwari v. Promotional Club reported in (2022) 9 SCC 560 allotment of plot under an Page 14 of 32 Downloaded on : Sat Dec 24 03:45:04 IST 2022 C/SCA/4934/2016 CAV JUDGMENT DATED: 16/12/2022 erstwhile policy is not a matter of vested right and therefore it cannot be a subject matter of a challenge in the petition under Article 226 of the Constitution of India.
8. Having considered the submissions made by the learned counsel for the respective parties, what is evident is that the issue at hand is of plot allotment made in favour of the respondent no.5 viz. plot no.362/2/B admeasuring 1300 square meters at Kathvada GIDC. The petitioner was an initial allottee of a plot admeasuring 962.50 square meters in the year 1997.
9. Facts indicate that as far as the respondent no.5 is concerned, it was allotted initially when it commenced business, a plot of 2100 square meters viz. plot no.375. Looking to its business turnover, it applied for allotment of adjoining Page 15 of 32 Downloaded on : Sat Dec 24 03:45:04 IST 2022 C/SCA/4934/2016 CAV JUDGMENT DATED: 16/12/2022 plot viz. 400 square meters and 2100 square meters in the years 2012 and 2014. These applications were made prior to the petitioner's application of plot no.362/2/B of the plot which is now a third additional allotment in favour of the respondent no.5. The policy of 28.08.2012 when read indicates that a plot adjacent to an existing plot for the purposes of expanding an existing industry can be allotted if it is within the vicinity of 100 meters. It was in light of this policy therefore that though the plot no.362/2/A/2 and 362/2/A/1 not being adjacent to the initial allotment at plot no.375 were allotted to the respondent no.5 in light of the policy of 28.08.2012.
10. For the petitioner to contend that the policies of 14.07.2015 and that of 16.02.2016 diluting the requisite terminology of an adjacent plot to that Page 16 of 32 Downloaded on : Sat Dec 24 03:45:04 IST 2022 C/SCA/4934/2016 CAV JUDGMENT DATED: 16/12/2022 of a plot having a common wall and giving a go- bye to the distance of 100 meters having been tweaked only for the purposes of facilitating allotment to the respondent no.5 appears to be misconceived.
11. When the policy circular dated 28.08.2012 is read, it clearly indicates that it too provided for not only an adjacent plot being a plot within 100 meters of the existing plot but also provided for a plot as being one having a common wall. The policy dated 28.08.2012 cannot be read only in context of Clause 3 thereof. Clause 4(2) provided for an adjacent plot as a plot which had a common wall. The circular of 14.07.2015 therefore diluted this to that only of an adjacent plot being one with a common wall. It was in light of this fact that the application of the petitioner for allotting of plot across the road Page 17 of 32 Downloaded on : Sat Dec 24 03:45:04 IST 2022 C/SCA/4934/2016 CAV JUDGMENT DATED: 16/12/2022 was filed. To consolidate the policy therefore, a circular of 16.02.2016 was issued inter-alia restricting allotment to the existing plot holders wanting a plot for an expansion for a plot having a common wall. For the petitioner therefore to interpret the policy circular of 16.02.2016 to the one made to facilitate allotment of the plot to the respondent no.5 though two extended allotments were made is an argument which is far-fetched.
12. What is evident from the business purposes, is evident from the reply filed by the respondent no.5 that looking to the turnover and the initial requirement of the respondent no.5 though a request for a larger allotment of a plot was made, it was allotted only 2100 square meters at the first instance at plot no.375. Allotment therefore was made for an equal area of land in the year 2012, nine years after the first Page 18 of 32 Downloaded on : Sat Dec 24 03:45:04 IST 2022 C/SCA/4934/2016 CAV JUDGMENT DATED: 16/12/2022 allotment. Then it was allotted plot 362/2/A/1 admeasuring 2100 square meters. That was on 27.09.2012 and subsequently 400 square meters on 31.01.2014 much before the petitioner applied for adjacent plots in light of the policy circular of August 2012. When subsequent applications were made both by the petitioner and the respondent no.5, allotment of plot no.362/2/B admeasuring 1300 square meters, what is needed to be appreciated is that the petitioner was only possessing plot of 962.50 square meters whereas, the respondent no.5 already had under its belt 4700 square meters of plot and was seeking further 1300 square meters looking to its business acumen and scale.
13. What is also evident from the policy circulars even otherwise is that apart from the application of the petitioner having been treated as 'filed' in Page 19 of 32 Downloaded on : Sat Dec 24 03:45:04 IST 2022 C/SCA/4934/2016 CAV JUDGMENT DATED: 16/12/2022 light of the 14.01.2015 circular which was much prior to the policy of 16.02.2016 that itself is an indicator that policy of 16.02.2016 and the amendment cannot be read so as to facilitate a common wall allotment of a plot to the respondent no.5. This is without entering into the controversy where it is the case of the GIDC that even otherwise the petitioner's plot has unauthorized construction which disqualified the petitioner for allotment of a plot.
14. The policy circular of 16.02.2016 which singled out adjacent plot allotment concepts to plot having a common wall was not foreign to such policy when that was a condition even one in the policy of 28.08.2012.
15. As is rightly submitted by the learned counsel for the respondents, the decision in case of Page 20 of 32 Downloaded on : Sat Dec 24 03:45:04 IST 2022 C/SCA/4934/2016 CAV JUDGMENT DATED: 16/12/2022 Anshika Goel (supra), reads as under.
"8. While answering the aforesaid issue, few decisions of this Court referred to hereinabove are required to be discussed.
a) In the case of Gulshan Prakash (supra), it was observed by this Court that there cannot be any mandamus by the Court to provide for a reservation for a particular community. In the case before this Court, the State of Haryana did not provide any reservation for SC/ST/backward community at the postgraduate level. A conscious decision was taken by the State of Haryana not to provide for reservation at the postgraduate level. The same was challenged and to that this Court has observed that there cannot be any mandamus by the Court as claimed. In the aforesaid decision, it was further observed and held that Article 15(4) of the Constitution is an enabling provision and the State Government is the best Judge to grant reservation for SC/ST/backward categories at postgraduate level. Any policy and the decision of the State not to make any provision for reservation at postgraduate level suffers from no infirmity.
It was further observed that every State can take its own decision with regard to reservation depending on various factors. At this stage, it is to be noted that it was also submitted before this Court that since the Government has decided to grant reservation for SC/ST/backward class communities in admission at MBBS level, Page 21 of 32 Downloaded on : Sat Dec 24 03:45:04 IST 2022 C/SCA/4934/2016 CAV JUDGMENT DATED: 16/12/2022 i.e., undergraduate level and therefore the State has to provide for reservation at postgraduate level also. To that, this Court observed that since the Government had decided to grant reservation for SC/ST/backward categories in admission at MBBS level, i.e., undergraduate level, it does not mean that it is bound to grant reservation at the postgraduate level also.
b) In the case of Central Bank of India SC/ST Employees Welfare Association and others (supra), while considering the issue of providing reservation in favour of SC/ST category persons in the promotion and when Articles 15 & 16 of the Constitution of India were pressed into service, this Court observed and held that though Articles 15 & 16 empower the State to take an affirmative action in favour of the SC/ST category persons by making reservations for them in the employment of the Union or the State, they are only enabling provisions which permit the State to make provision for reservation of these category of persons. It was further observed that insofar as making of provisions for reservation in matters of promotion to any class/classes of post is concerned, such a provision can be made in favour of SC/ST category employees if in the opinion of the State they are not adequately represented in services under the State. It is observed that therefore power lies with the State to make a provision but, at the same time, Courts cannot issue any mandamus to the State to necessarily make such a Page 22 of 32 Downloaded on : Sat Dec 24 03:45:04 IST 2022 C/SCA/4934/2016 CAV JUDGMENT DATED: 16/12/2022 provision. In paragraph 26, it was observed and held as under:
"26. In the first instance, we make it clear that there is no dispute about the constitutional position envisaged in Articles 15 and 16, insofar as these provisions empower the State to take affirmative action in favour of SC/ST category persons by making reservations for them in the employment in the Union or the State (or for that matter, public sector/authorities which are treated as State under Article 12 of the Constitution). The laudable objective underlying these provisions is also to be kept in mind while undertaking any exercise pertaining to the issues touching upon the reservation of such SC/ST employees. Further, such a reservation can not only be made at the entry level but is permissible in the matters of promotions as well. At the same time, it is also to be borne in mind that clauses (4) and (4-A) of Article 16 of the Constitution are only the enabling provisions which permit the State to make provision for reservation of these category of persons. Insofar as making of provisions for reservation in matters of promotion to any class or classes of post is concerned, such a provision can be made in favour of SC/ST category employees if, in the opinion of the State, they are not adequately represented in services under the State. Thus, no doubt, power lies with the State to make a provision, but, at the same time, courts cannot issue any mandamus to the State to necessarily make such a provision. It is for the State to act, in a given situation, and to take such an affirmative action. Of course, Page 23 of 32 Downloaded on : Sat Dec 24 03:45:04 IST 2022 C/SCA/4934/2016 CAV JUDGMENT DATED: 16/12/2022 whenever there exists such a provision for reservation in the matters of recruitment or the promotion, it would bestow an enforceable right in favour of persons belonging to SC/ST category and on failure on the part of any authority to reserve the posts, while making selections/promotions, the beneficiaries of these provisions can approach the Court to get their rights enforced.
What is to be highlighted is that existence of provision for reservation in the matter of selection or promotion, as the case may be, is the sine qua non for seeking mandamus as it is only when such a provision is made by the State, a right shall accrue in favour of SC/ST candidates and not otherwise."
c) In the case of Suresh Chand Gautam (supra), writ petitions were preferred before this Court under Article 32 of the Constitution of India for issuance of a direction in the nature of a mandamus commanding the State/States to enforce appropriately the constitutional mandate as contained under the provisions of Article 16(4-A), 16(4-B) and 335 of the Constitution , or in the alternative, directing the respondents to constitute a committee or appoint a commission chaired either by a retired Judge of the High Court or Supreme Court in making survey and collecting necessary qualitative data of the Scheduled Castes and the Scheduled Tribes in the services of the State for granting reservation in promotion in the light of direction given by this Court in M. Nagaraj v. Union of India, (2006) 8 SCC 212.
Page 24 of 32 Downloaded on : Sat Dec 24 03:45:04 IST 2022 C/SCA/4934/2016 CAV JUDGMENT DATED: 16/12/2022 Refusing to grant such reliefs in exercise of powers under Article 32 of the Constitution of India and after referring to the decision of this Court in the case of Census Commr. Vs. R. Krishnamurthy, (2015) 2 SCC 796, this Court has observed that no writ of mandamus of such a nature can be issued. While refusing to issue a writ of mandamus of such a nature, in paragraph 49, it was observed and held as under:
"49. Recently in Census Commr. v. R. Krishnamurthy [Census Commr. v. R. Krishnamurthy, (2015) 2 SCC 796 : (2015) 1 SCC (L&S) 589] a three-Judge Bench while dealing with the correctness of the judgment of the High Court wherein the High Court had directed that the Census Department of the Government of India shall take such measures towards conducting the caste-wise census in the country at the earliest and in a time-bound manner, so as to achieve the goal of social justice in its true sense, which is the need of the hour, the court analysing the context opined thus: (SCC p. 806, para 25) "25. Interference with the policy decision and issue of a mandamus to frame a policy in a particular manner are absolutely different. The Act has conferred power on the Central Government to issue notification regarding the manner in which the census has to be carried out and the Central Government has issued notifications, and the competent authority has issued directions. It is not within the domain of the court to legislate. The courts do interpret the law and, in such interpretation, certain creative process is Page 25 of 32 Downloaded on : Sat Dec 24 03:45:04 IST 2022 C/SCA/4934/2016 CAV JUDGMENT DATED: 16/12/2022 involved. The courts have the jurisdiction to declare the law as unconstitutional. That too, where it is called for. The court may also fill up the gaps in certain spheres applying the doctrine of constitutional silence or abeyance. But the courts are not to plunge into policy-making by adding something to the policy by way of issuing a writ of mandamus." We have referred to the said authority in Census Commr. case [Census Commr. v. R. Krishnamurthy, (2015) 2 SCC 796 : (2015) 1 SCC (L&S) 589] as the Court has clearly held that it neither legislates nor does it issue a mandamus to legislate. The relief in the present case, when appositely appreciated, tantamounts to a prayer for issue of a mandamus to take a step towards framing of a rule or a regulation for the purpose of reservation for the Scheduled Castes and the Scheduled Tribes in matter of promotions. In our considered opinion, a writ of mandamus of such a nature cannot be issued."
d) In the recent decision in the case of Mukesh Kumar and another (supra), again it is reiterated by this Court that no mandamus can be issued by the Court directing the State Government to provide for reservation. It was further observed that even no writ of mandamus can be issued directing the State to collect quantifiable data to justify their action not to provide for reservation. It was observed that even if the under-representation of Scheduled Casts and Scheduled Tribes in public services is brought to the notice of the Court, no mandamus can be issued by the Court to the State Government to provide for Page 26 of 32 Downloaded on : Sat Dec 24 03:45:04 IST 2022 C/SCA/4934/2016 CAV JUDGMENT DATED: 16/12/2022 reservation. While holding so, in paragraph 18, it was observed and held as under:
"18. The direction that was issued to the State Government to collect quantifiable data pertaining to the adequacy or inadequacy of representation of persons belonging to Scheduled Castes and Scheduled Tribes in government services is the subject-matter of challenge in some appeals before us. In view of the law laid down by this Court, there is no doubt that the State Government is not bound to make reservations. There is no fundamental right which inheres in an individual to claim reservation in promotions. No mandamus can be issued by the Court directing the State Government to provide reservations. It is abundantly clear from the judgments of this Court in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1] , Ajit Singh (2) [Ajit Singh (2) v. State of Punjab, (1999) 7 SCC 209 : 1999 SCC (L&S) 1239] , M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] and Jarnail Singh [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 : (2019) 1 SCC (L&S) 86] that Articles 16(4) and 16(4-A) are enabling provisions and the collection of quantifiable data showing inadequacy of representation of Scheduled Castes and Scheduled Tribes in public service is a sine qua non for providing reservations in promotions. The data to be collected by the State Government is only to justify reservation to be made in the matter of Page 27 of 32 Downloaded on : Sat Dec 24 03:45:04 IST 2022 C/SCA/4934/2016 CAV JUDGMENT DATED: 16/12/2022 appointment or promotion to public posts, according to Articles 16(4) and 16(4-A) of the Constitution. As such, collection of data regarding the inadequate representation of members of the Scheduled Castes and Scheduled Tribes, as noted above, is a prerequisite for providing reservations, and is not required when the State Government decided not to provide reservations. Not being bound to provide reservations in promotions, the State is not required to justify its decision on the basis of quantifiable data, showing that there is adequate representation of members of the Scheduled Castes and Scheduled Tribes in State services. Even if the under-representation of Scheduled Castes and Scheduled Tribes in public services is brought to the notice of this Court, no mandamus can be issued by this Court to the State Government to provide reservation in light of the law laid down by this Court in C.A. Rajendran [C.A. Rajendran v. Union of India, (1968) 1 SCR 721 : AIR 1968 SC 507] and Suresh Chand Gautam [Suresh Chand Gautam v. State of U.P., (2016) 11 SCC 113 : (2016) 2 SCC (L&S) 291] . Therefore, the direction given by the High Court that the State Government should first collect data regarding the adequacy or inadequacy of representation of Scheduled Castes and Scheduled Tribes in government services on the basis of which the State Government should take a decision whether or not to provide reservation in promotion is contrary to the law laid down by this Court and is accordingly set aside.
Yet another direction given by the High Court in its judgment dated 15-7-2019 Page 28 of 32 Downloaded on : Sat Dec 24 03:45:04 IST 2022 C/SCA/4934/2016 CAV JUDGMENT DATED: 16/12/2022 [Vinod Kumar v. State of Uttarakhand, WP (S/B) No. 291 of 2019, decided on 15-7- 2019 (Utt)] , directing that all future vacancies that are to be filled up by promotion in the posts of Assistant Engineer, should only be from the members of Scheduled Castes and Scheduled Tribes, is wholly unjustifiable and is hence set aside."
16. The Court in a petition under Article 226 of the Constitution of India on the facts so narrated herein above would be loath in interfering with the policy circular.
17. The Court in light of the decision in case of Ritu Maheshwari (supra) has held in paras 23 to 25 as under:
"23.In Usman Gani Khatri of Bombay v Cantonment Board this court affirmed the decision of the High Court, which held that old rules could not be applied, and that new rules were applicable, for considering applications for sanction of buildings. It was held that "24. ... In any case, the High Court is right in taking the view that the building plan can only be sanctioned according to the building regulations prevailing at the time of sanctioning of such building plans. At present the statutory bye-laws Page 29 of 32 Downloaded on : Sat Dec 24 03:45:04 IST 2022 C/SCA/4934/2016 CAV JUDGMENT DATED: 16/12/2022 published on 30.4.1988 are in force and the fresh building plans to be submitted by the petitioners, if any, shall now be governed by these bye-laws and not by any other bye-laws or schemes which are no longer in force now. If we consider a reverse case where building regulations are amended more favourably to the builders before sanctioning of building plans already submitted, the builders would certainly claim and get advantage of the regulations amended to their benefit.
24.Likewise, in Howrah Municipal Corpn. & Ors. v Ganges Rope Co. Ltd. & Ors. A similar question arose for consideration. The municipal corporation was required to decide an application for sanction, in a time bound manner, by the court. The applicable rules changed. The corporation decided the application in the light of the amended rules. This court, negativing the applicant's contention that it had a right to be considered under the old rules, held as follows:
"21. The provisions of the Act, therefore, contemplate an express sanction to be granted by the Corporation before any person can be allowed to construct or erect a building. Thus, in ordinary course, merely by submission of application for sanction for construction, no vested right is created in favour of any party by statutory operation of the provisions.
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28.In our considered opinion, by the order of the Court dated 23.12.1993 observing that the petitioner is 'not prevented from Page 30 of 32 Downloaded on : Sat Dec 24 03:45:04 IST 2022 C/SCA/4934/2016 CAV JUDGMENT DATED: 16/12/2022 applying' for further sanction of additional floors above fourth floor and the 'expectation' expressed in the subsequent order of the Court dated 24.6.1994, from the Corporation to decide the pending application for sanction within four weeks, no vested right in favour of the respondent
- company can be said to have been created to obtain sanction on the unamended rules, as they existed on the date of their second application."
25.In the light of the above position in law, it is clear that the club could not have claimed that its application had to be dealt with in terms of the old scheme, which had ended in 2012. The direction of the High Court, could only have meant that the applications had to be revived, and dealt with the scheme prevailing as on the date of its consideration, i.e. after 31.07.2019. The interpretation placed by the High Court, that there were existing plots, which could have been dealt with under the old scheme is entirely misplaced. In such events, given that the legality of closure of the old scheme attained finality, there was no question of any land or plot being attached or belonging as it were to an old scheme. If any land or plot, or industrial unit were in fact "left- over" it was always up to the development authority or agency (here Noida) to determine how they are to be dealt with. The directions issued in contempt proceedings, which are subject matter of another appeal, are accordingly held erroneous."
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18. It is clear that when the earlier circular has lived its life under which the petitioner sought allotment of plot, no mandamus can be issued to the petitioner for the prayers sought in the petition.
19. For the aforesaid reasons therefore the petition is dismissed. Interim relief granted by this Court on 30.03.2016 stands vacated.
(BIREN VAISHNAV, J) FURTHER ORDER After the pronouncement of judgement, learned counsels for respective respondents object to the request of extension of interim relief by the learned advocate Ms.Kanabar for the petitioners. The interim relief that has been continued from 30.03.2016 is now extended upto 16.01.2023.
(BIREN VAISHNAV, J) ANKIT SHAH Page 32 of 32 Downloaded on : Sat Dec 24 03:45:04 IST 2022