Gujarat High Court
Maganbhai Chaturbhai Patel vs Seccretary on 30 November, 2018
Author: J. B. Pardiwala
Bench: J.B.Pardiwala
C/SCA/13075/2000 JUDGMENT
IN THEHIGHCOURTOF GUJARATAT AHMEDABAD
R/SPECIALCIVILAPPLICATIONNO. 13075of 2000
FORAPPROVALANDSIGNATURE:
HONOURABLEMR.JUSTICEJ.B.PARDIWALA Sd/-
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1 Whether Reporters of Local Papers may be allowed YES to see the judgment ?
2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy NO of the judgment ?
4 Whether this case involves a substantial question NO of law as to the interpretation of the Constitution of India or any order made thereunder ?
============================================================================== MAGANBHAI CHATURBHAI PATEL Versus SECRETARY ============================================================================== Appearance:
MRHRIDAYBUCH,ADVOCATEfor the PETITIONER MR NIRAVD TRIVEDI(6311)for the PETITIONER GOVERNMENTPLEADERfor the RESPONDENT(s)No. 1,2,3,4 MRA J PATEL(595)for the RESPONDENT(s)No. 14 MRCHIRAGB PATEL(3679)for the RESPONDENT(s)No. 7 MRDIPENDESAI(2481)for the RESPONDENT(s)No. 10,16,17,18,19,8 MRPRASHANTG DESAI(291)for the RESPONDENT(s)No. 6 MRSHIVANGM SHAH(5916)for the RESPONDENT(s)No. 5 MRANSHINDESAI,SR.ADVOCATEwith MR. NISHITP GANDHI(6946)for the RESPONDENT(s)No. 13 MS AVANIS MEHTA(1867)for the RESPONDENT(s)No. 1,11,9 NOTICESERVEDBY DS(5)for the RESPONDENT(s)No. 12 RULESERVED(64)for the RESPONDENT(s)No. 15 ============================================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date: 30/11/2018 Page 1 of 54 C/SCA/13075/2000 JUDGMENT ORALJUDGMENT
1. By this writ-application, the writ-applicants have prayed for the following reliefs:-
"(A) be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, quashing and setting aside the decision of the Agricultural Produce Market Committee, Patan, in allotting and transferring the land in favour of respondents No.8 to 15 by way of lease deed and by way of sale deed as the same is violative of Article 14 of the Constitution of India and be further pleased to declare the same to be void; and be further pleased to pass the order of vesting of the land in favour of Agricultural Produce Market Committee, Patan;
(B) be pleased to quash and set aside the letter/ order dated the 6th October, 2000, bearing No.NBS/01/TH/3096/2000 (Annexure-Y to the petition) being violative of Article 14 of the Constitution of India;
(C) be pleased to declare that the decision of Agricultural Produce Market Committee, Patan in giving the shops by way of lease in Ambica Vegetable Market Sub-Yard is violative of Article 14 of the Constitution of India;
(D) be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, directing Page 2 of 54 C/SCA/13075/2000 JUDGMENT respondent No.1 to hold an inquiry with respect to the allotment of land in the Agricultural Produce Market Committee, Patan and with respect to allotment of shop in Ambica Vegetable Market Sub-Yard on lease and be further pleased to fix the responsibility of the persons responsibility and be further pleased to direct respondents No.1 and 2 to take appropriate action against all those found responsible in accordance with Sections 30, 46 and 50 of the Gujarat Agricultural Produce Market Act, 1953;
(E) Pending admission, hearing and final disposal of this writ petition, be pleased to restrain Agricultural Produce Market Committee, Patan respondents no.6 and 7 herein from transferring, selling or in manner creating any encumbrances upon the property of Agricultural Produce Market Committee, Patan, till final disposal of the writ petition;
(F) Pending hearing and final disposal of this writ-
petition, may be further pleased to restrain respondents no.8 to 15 from further transferring or from putting up any construction upon the land allotted by means of lease deed and by means of sale deed by the Agricultural Produce Market Committee, Patan;
(G) be pleased to direct respondent No.4 - District Collector, Patan to take appropriate action in accordance with the provisions of the Bombay Land Revenue Code for the breach committed by Agricultural Page 3 of 54 C/SCA/13075/2000 JUDGMENT Produce Market Committee, Patan, in allotting by way of lease and by way of sale deed the land reserved to be kept open;
(H) Such other and further reliefs, as are deemed fit, in the facts and circumstances of this case may kindly be granted.
2. The case of the writ-applicants, in their own words as pleaded in the writ-application, is as under:-
2.1 The petitioners are filing this writ-petition by way of public interest petition and bring to the notice of this Honourable Court the utter failure on the part of the Director of Agricultural Marketing and Rural Finance, respondent No.2 herein as also other respondents in not hearing into and considering the representations of the petitioners as also not taking any action with respect to the gross illegality and irregularities having been committed by the office bears of Agricultural Produce Market Committee, Patan, respondents no.6 herein as also other office bearers. The property of the Agricultural Produce Market Committee, which is a public property and the Market Committee which is a "State" within the meaning of Article 12 of the Constitution of India, has disposed of the properties and the lands of the ownership of the Market Committee by giving a go by to the provisions of Article 14 of the Constitution of India. In the process, the Agricultural Produce Market Committee, Patan, has violated the provisions of the Agricultural Produce Markets Act, 1963 and the provisions Page 4 of 54 C/SCA/13075/2000 JUDGMENT of the Gujarat Agricultural Produce Markets Rules, 1965.
The Agricultural Produce Market Committee, Patan has also violated the provisions of the Bombay Land Revenue Code, inasmuch as, the margin land the land earmarked for parking in the market area is disposed of by vilating the conditions of grant of N.A. order. To the information of the petitioners, the allottees of the land, mainly, respondents no.8 to 15, have without seeking any permission and in violation of the building regulations, put up constructions in spite of the fact that no permission is granted by the Municipality to put up the construction. The petitioners have made all efforts to persuade and convince the authorities, but the authorities have failed to take any action and, therefore, the petitioners are left with no alternative but to approach this Honourable Court by way of this public interest litigation.
2.2 The petitioners are pro bono publico and they have no personal interest in the subject matter. Petitioner No.1 is aged about 62 years and is a leading business man of Patan and the district. Petitioner No.1 is associated with number of social and service oriented institutions of Patan. Petitioner No.1 is also a trader and his firms are holding the licence in the market area.
2.3 Petitioner No.2 is also the resident of Patan Taluka and is a agriculturist and petitioner No.2 is moving this Court as a pro bono publico and he has no pecuniary or personal interest in the subject matter.
Page 5 of 54C/SCA/13075/2000 JUDGMENT 2.4 The petitioners state that the Agricultural Produce Market Committee, Patan is constituted in accordance with the provisions of the Gujarat Agricultural Produce Markets Act, 1963. Respondent No.6 is the Chairman of Agricultural Produce Market Committee, Patan and respondent No.7 is the Secretary of the Market Committee. The petitioners state that Agricultural Produce Market Committee, Patan is one of the leading Market Committees in the State of Gujarat and since Patan is given the status of a district, the Market Committee and the lands in Patan have acquired considerable value because of rapid growth of Patan town as district Head Quarter. The petitioners state that they are in possession of a lay out plan for the Agricultural Produce Market Yard. As per the said lay out plan, total built up area of the Market Committee is 7347.94 sq. meter plus proposed build up area. Considering all these, it comes to 38418.17 sq. yards and the open area is 1,14,089 sq. yards. Thus, the key plan is subject to further clarification from the office of the District Collector.
2.5 The petitioners state that on the 17th April, 1997, petitioner No.1 came to know that the Agricultural Produce Market Committee, Patan, is trying to sell the land which is margin land and, therefore, petitioner No.1 had addressed a letter to the District Collector, Mehsana to see that the margin area land which is to be kept open is not allotted by the Market Committee, Patan.
2.6 That on 17th April, 1997, one Keshrabhai Nathabhai Desai also addressed a letter to the District Collector with Page 6 of 54 C/SCA/13075/2000 JUDGMENT the signature of about 60 persons. In the said letter, it was stated that there is a move on the part of the office bearers of the Market Committee to dispose of the land of the Market Committee which is the margin area and which is required to be kept open as per the N.A. order. It was requested to the District Collector that the same be not permitted to be done.
2.7 Petitioner No.1 addressed as letter to the Director of Agricultural Marketing and Rural Finance, respondent No.2 herein on the 29th April, 1999. By the said letter, the petitioner drew attention of the Director of Agricultural Marketing and Rural Finance, respondent No.2 herein. In the said letter, petitioner no.1 had pointed out that in utter violations of the rules and regulations, the Market Committee, Patan, is giving the plots without following any procedure and, therefore, appropriate action be taken by the Director.
2.8 To the information of the petitioners, a notice also came to be issued against the office bearers of the Market Committee under Section 46 of the Gujarat Agricultural Produce Markets Act, 1963.
2.9 The petitioners state that the Agricultural Produce Market Committee, Patan, had constituted a Development Sub-Committee and the said Sub-Committee passed a resolution on the 14th October, 1999, being Resolution No.3. Resolution No.3 dated 14th October, 1999 came to be ratified by the General Body of the Market Committee in its meeting Page 7 of 54 C/SCA/13075/2000 JUDGMENT dated 18th October, 1999, being Resolution No.3. By these two resolutions, the Market Committee straightway decided to give the land by way of lease to respondents No.8 to 15 for a monthly rent of Rs.1/- per sq.meter and in utter disregard to the provisions of Article 14 of the Constitution of India, lease deed came to be executed by and between the Agricultural Produce Market Committee, Patan, through its Chairman (respondent No.6) and respondents No.8 to 15 on the 20th October, 1999. By the said lease deed, 150 sq.meters of land came to be leased out on permanent basis for a monthly rent of Rs.150/-. It is pertinent to note that, looking to the value and the price of the land in the market area, the rent of Rs.150/- per month was nothing by an eye- wash, inasmuch as, petitioner No.2 had stated that he is prepared to take the land at Rs.100/- per sq.meter per montyh, meaning thereby that for the allotment of Rs.150 sq.meters of land, the Market Committee, Patan, entered into a lease deed where the lease amount was Rs.150/- per month and, as against that, for the very said area, petitioner No.2 was prepared to take the land on lease at the rate of Rs.100/- per sq. meter per month. So, if the land is given to petitioner No.2, the Market Committee would have fetched Rs.15,000/- by way of rent per month.
2.10 Similar type of agreement of lease came to be executed by Agricultural Produce Market Committee, Patan (respondent No.6 herein) in favour of other allottees (respondents No.9 to 15) on different dates.
2.11 The petitioners state that to their information, after the Page 8 of 54 C/SCA/13075/2000 JUDGMENT lease deed in favour of one Khamar Hasmukhlal is done, against the said property is transferred by the Market Committee in favour of one person named as Desai Shambhubhai Jivanbhai by way of lease and later on the said land has been sold to Shri Desai Shambhubhai Jivanbhai, who seems to be the relative of the Chairman of the Market Committee. Thus, there was a play on the part of the Market Committee to transfer the land initially in favour of Shri Khamar Hasmukhlal.
2.12 The petitioner states that, thereafter, it seems that Agricultural Produce Market Committee, Patan, issued an agenda on the 29th October, 1999 and called the urgent special meeting on the 2nd November, 1999 to approve what has been done in the meeting dated the 18 th October, 1999 as also to approve the decision in giving the land of the Market Committee on lease and, accordingly, to the information of the petitioners, the urgent general meeting approved the allotment in favour of the allottees, i.e. respondents No.8 to 15.
2.13 That on the 4th November, 1999, one Nathabhai Desai made a representation to the Director of Agricultural Marketing and Rural Finance, drawing his attention about the illegal activities having been carried out by the office bearers of the Market Committee. It has been pointed out that 90 shops situated in the market yard are disposed of without following any procedure and only amount of Rs.41,000/- is officially charged by the Market Committee. The said signatory to the representation had pointed out Page 9 of 54 C/SCA/13075/2000 JUDGMENT that when the shops were put to auction, the amount of bid was Rs.1,30,000/- per shop, as per his information. However, the said amount was also considered to be inadequate and, therefore, the allotment was cancelled of those persons. It has also been pointed out that the open land in the market area of the Market Committee is given by way of lease and the same is in complete violation of the provisions of the Bombay Land Revenue Code, the Agricultural Produce Markets Act and the Rules as also the provisions of Article 14 of the Constitution of India.
2.14 The petitioners state that, as if this illegal act on the part of the Market Committee, Patan, in giving the land by way of lease in private without giving any advertisement and without giving any notice to the interested persons or without inviting offers from similarly situated persons was not sufficient, the Market Committee, Patan, without following any procedure, disposed of the very same land to respondents No.8 to 15 by the of permanent sale. The details of the sale are as under:-
Name of the person in whose favour Regn.
Date Details
the land is given. No.
30.10.99 Plot No.15 Patel Prahladbhai Babaldas 3026
(150 sq.mts.)
20.10.99 Plot No.6 Bharatkumar Hemchand Patel 3027
(80 sq.mts.)
20.10.99 Southern side Agrawal Virendra Bansilal 3074
of Shop No.36
(350 sq.mts.)
Page 10 of 54
C/SCA/13075/2000 JUDGMENT
25.10.99 120 sq. mts. Patel Pravinkumar Maganlal 3074
25.10.99 234 sq. mts. Khamar Atulkumar Hasmukhlal 3075
01.11.99 286 sq. mts. Patel Kanaiyalal 3062
Patel Ramanlal
144 sq. mts. Patel Jagdishbhai Bhagwanbhai 3133
34 sq. mts. Bhalendakumar Ladhubhai Chaudhary
To the information of the petitioner, the meeting of the Agricultural Produce Market Committee, Patan took place on the 11th March, 2000 and passed Resolution No.9 to sell the land. The said resolution No.9 came to be approved in the urgent meeting of the Market Committee on the 8 th April, 2000. The petitioners are not in possession of these resolutions. However, this is stated on the strength of the copy of the sale-deed wherein these resolutions are referred to. By this, the Market Committee decided to sell the land and fixed the sale price of Rs.1800/- per sq. meter and sold the lands to these allottees by registered sale-deed dated the 9th November, 2000. The aforesaid act on the part of the Market Committee, Patan, which is a "State" within the meaning of Article 12 of the Constitution of India was done without any public notice, without any sanction and without any opportunity to similarly situated persons or the citizens of the traders or the agriculturists of Patan area to offer their price. So, in complete disregard of the principles of equity and fair play and without taking into consideration the actual price of the land, the property of the Market Committee came to be sold for a paltry sum, inasmuch as, the price is fixed at Rs.1800/- per sq. meter and, Page 11 of 54 C/SCA/13075/2000 JUDGMENT accordingly, the sale-deeds are executed. The petitioners state that the prices have been fixed from the range of Rs.1200 to Rs.1800/-. It is pertinent to note here that the approximate of these lands is in the range of Rs.4000 to Rs.6000/- per sq. meter.
2.15 The petitioners state that on the 10th January, 2000, petitioner No.2 addressed a letter to the Secretary and Chairman of Agricultural Produce Market Committee as also to the Director of Agricultural Marketing and Rural Finance, respondent No.2 herein, drawing his attention to the fact that the decision of Agricultural Produce Market Committee in allotting shops by way of lease at Rs.1 per sq. meter is bad. To show that this act is grossly iniquitous and grossly unjust to the interest of the Market Committee, petitioner No.2 had stated that, as against the rent of Rs.1 per sq. meter, he is prepared to pay Rs.100/- per sq. meter per month. So, for one shop of 150/- sq. meter area, there would be a loss to the Market Committee to the extent of Rs.14,850/- per month.
2.16 The petitioners state that petitioner No.2 made a similar representation to the Settlement Commissioner, Land Records as also the Director, Agricultural Marketing and Rural Finance as also to the Anti-corruption Bureau.
2.17 The petitioners state that petitioner No.2 had also addressed a letter to the District Collector and Administrator of Patan Municipality, respondent No.4 and 5 herein, drawing their attention there is violation of the provisions of Page 12 of 54 C/SCA/13075/2000 JUDGMENT the Bombay Land Revenue Code and violation of the N.A. conditions by the Market Committee, Patan and that in utter violation of the said conditions of the N.A. order, the construction work is going on the land allotted by way of lease in favour of the allottees and, therefore, the said construction be forthwith stayed.
2.18 The petitioners state that petitioner No.1 also made a similar representation on the 12 th January, 2000, stating that the decision of the Market Committee, Patan in giving land by way of lease at the rate of Rs.1 per sq. meter is grossly unjust. To show that it is grossly unjust, petitioner No.1 pointed out that for the said area of land, he is prepared to take the land on lease at Rs.110/- per sq. meter per month. So, as against the offer of Rs.16500/- by petitioner No.1, the land is given at Rs.150/- per month.
2.19 The petitioners state that on the 15th January, 2000, petitioner No.2 again addressed a letter to the Chairman and Secretary of the Market Committee, Patan, as also to the Director regarding the said land transaction and requested him to take appropriate action.
2.20 The petitioners state that petitioner No.1 addressed a letter to the Chairman/ Secretary of Agricultural Produce Market Committee as also to the Director of Agricultural Marketing and Rural Finance stating that sale price fixed at Rs.1200 to Rs.1800/- is inadequate. To show that it is inadequate, petitioner No.1 stated that he is ready to purchase the land at Rs.3000/- per sq. meter.Page 13 of 54
C/SCA/13075/2000 JUDGMENT 2.21 Similarly such persons had also moved the application to the Market Committee, Patan and to the Director of Agricultural Marketing and Rural Finance.
2.22 The petitioners state that petitioner No.1 was informed by the Deputy Town Planning Officer, Mehsana, that his office is not required to take any action.
2.23 The petitioners state that petitioner No.2 also made a representation to the Chief Officer, Patan Municipality to see that actions are taken regarding the illegal constructions.
2.24 The petitioners state that petitioner No.2 also made a representation to the Secretary, Co-operation Department as also to the Chief Secretary.
2.25 The petitioners state that petitioner No.1 also made another representation to the Chief Secretary.
2.26 The petitioners state that on the 7 th/9th March, 2000, the Director of Agricultural Marketing and Rural Finance passed an order in the representation of petitioner No.2 that further construction on the land be not done.
2.27 Thereafter, on the 28 th April, 2000, the Deputy Director, one Shri U.N. Vasanwal came and petitioner No.2 submitted a representation on the 28th April, 2000.
2.28 The petitioners state that petitioner No.2 also applied for certain record from the office of the District Collector by Page 14 of 54 C/SCA/13075/2000 JUDGMENT registered post A.D. as he was not supplied with the copies of the documents when he had approached him in person.
2.29 The petitioners state that petitioner No.1 also addressed a letter to the District Collector, Patan, to take appropriate action.
2.30 That on the 6th October, 2000, the Director of Agricultural Marketing and Rural Finance, respondent No.2 herein, seems to have addressed a letter to the Chairman/ Secretary of Agricultural Produce Market Committee, Patan, stating that, if no legal questions arise, the Market Committee, Patan can dispose of the land.
2.31 Petitioner No.2 also wrote to the Chief Officer, Patan Nagarpalika on the 12 th December, 2000 for taking appropriate action regarding the illegal construction.
2.32 The petitioners state that the Director of Agricultural Marketing and Rural Finance has issued the circulars with regard to the allotment of shops and it has been stated that only by way of public auction and public notice, the allotment be made. However, in the instance case, the very Director has stated that the land be disposed of, if no legal complications arise.
3. Thus, it appears from the case put up by the writ-
applicants that the Agricultural Produce Market Committee, Patan, indulged in large scale fraud and illegalities in allotting the parcels of land of the ownership of the Market Yard to the Page 15 of 54 C/SCA/13075/2000 JUDGMENT private respondents herein, first on the basis of permanent lease, and thereafter, by executing sale-deeds in their favour without following any procedure of public auction, fixation of price, etc. It also appears that the land in question is a margin land meant for the purpose of parking. Despite the same, the APMC, in a very high-handed manner, resolved to execute lease, and later, sale-deeds in favour of the private respondents of the margin land situated within the market area as well as other parcels of land situated at the de-notified sub-market yard.
4. It is the case of the writ-applicants that despite various representations made in this regard before the authority concerned, no action was taken and, therefore, in such circumstances, the writ-applicants had to come before this Court with the present writ-application.
5. I take notice of the fact that this petition was earlier treated as a Public Interest Litigation. Treating this petition as one filed in public interest, various orders came to be passed by different courts time to time. After a period of almost 14 years from the date of filing of this petition, a Division Bench of this Court, all of a sudden, passed an order to place this matter before a Single Judge and declined to treat this petition as one filed in public interest. The order passed by the Division Bench of this Court dated 13.11.2014 reads as under :
"1. We have heard Mr.Pravin Panchal, learned counsel for the petitioners, Mr.Bhargav Bhatt, learned AGP for respondent Nos.1 to 4, Mr.Shivang M.Shah, learned counsel for respondent No.5, Ms.Avani Mehta, learned Page 16 of 54 C/SCA/13075/2000 JUDGMENT counsel for respondent Nos.8, 9, 10 and 11 and Mr.A.J.Patel, learned counsel for respondent Nos.13 and 14.
2. A preliminary objection has been raised by learned counsel for the private respondents that this writ petition is not in the nature of Public Interest Litigation as stated in paragraph 2 of the writ petition as well as from page 151, it is clear that this is not Public Interest Litigation, but the petitioners have personal interest in the subject matter as they intend to purchase the property. Further, vires of any provision or circular or resolution has not been challenged in this writ petition. Therefore, this petition can neither be treated as a writ petition in the nature of Public Interest Litigation nor the petition can be treated as a petition where the petitioners have challenged the vires of any provision. Further, the dispute involved in this writ petition is between the petitioners and the Agriculture Produce Market Committee. Therefore, such matters are to be placed before the learned Single Judge taking up such matters. Office to place this matter before the learned Single Judge taking up such matters."
6. In what circumstances the Division Bench of this Court passed the afore-noted order is not clear. I am bit disturbed to note that after treating this litigation as one filed in public interest, for a period of 14 years, why all of a sudden such an order had to be passed and why the learned counsel appearing for the writ-applicants did not oppose passing of such order.
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7. Be that as it may, since the matter has now been entrusted to this Court, I need to look into the same on its own merits.
8. However, before proceeding further, I need to address myself on one preliminary issue raised by Mr.Dipen Desai, the learned counsel appearing for the private respondents, as regards the maintainability of this petition. According to Mr.Desai, since this petition is not now being treated as one filed in public interest, the writ-applicants, being the former members of the APMC, cannot maintain this petition in their individual capacity by invoking public law remedy under Article 226 of the Constitution of India. To put it in other words, according to Mr.Desai, the writ-applicants have no locus-standi to come before this Court with the present petition having regard to the subject matter of the same and also having regard to the nature of the reliefs prayed for in the petition.
9. The Agricultural Produce Market Committee is a statutory body constituted under the provisions of the Gujarat Agricultural Produce Markets Act, 1963. The Committee discharges public functions. Every activity of the Market Committee has public element in it and it must, therefore, be informed with reasons guided by public interest and that it cannot act in a manner which would benefit few private individuals at the cost of the overall interest of the statutory body. If it is shown that the exercise of the power is arbitrary, unjust and unfair, it should be no answer for the Committee whose acts have the insignia of public element, to say that their actions are in the field of private law and they are free to prescribe any conditions or limitations Page 18 of 54 C/SCA/13075/2000 JUDGMENT in their actions as private citizens, simplicitor, do in the field of private law. Its actions must be based on some rational and relevant principles.
10. In the aforesaid context, the law on the subject has been laid down by the Apex Court in a series of its decisions.
11. In M/s. Erusion Equipment and Chemicals Ltd. v. State of West Bengal, AIR 1975 SC 266, the Supreme Court observed that neither the petitioner nor the respondent has any right to enter into a contract but they are entitled to equal treatment with others who offer tender or quotation for the purchase of the goods, services etc; that this privilege arises because it is the Government which is trading with the public and the democratic form of Government demands equality and absence of arbitrariness and discrimination in such transactions; that when public element is involved in the activities of the Government, then there should be fairness and equality; that if the State does enter into a contract, it must do so fairly without discrimination and without unfair procedure; that the individual is entitled to fair and equal treatment with others and that a duty to act fairly can be interpreted as meaning a duty to observe certain aspects of rules of natural justice.
12. In Saghir Ahmad v. State of U.P., AIR 1954 SC 728, the Constitution Bench of the Supreme Court, at the earliest buried fathom deep that the State is free to carry on trade or business in the same position as a private trader.
13. In Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir, AIR 1980 SC 1992, it was further held that every Page 19 of 54 C/SCA/13075/2000 JUDGMENT activity of the Government has public element in it and it must, therefore, be informed with reason guided by public interest and that it cannot act in a manner which would benefit a private party at the cost of the State.
14. In M.C. Mehta v. Union of India, AIR 1987 SC 1086, another Constitution Bench of the Supreme Court held that it is dangerous to exonerate corporations from the need to have constitutional conscience which makes Governmental agencies amenable to constitutional limitations; that court must adopt such standards against the alternative of permitting them to flourish as an imperium in imperio. It further held that law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. As new situations arise, the law has to be evolved in order to meet the challenge of such new situations.
15. In L.I.C. of India v. Consumer Education and Research Centre, AIR 1995 SC 1811, the Supreme Court observed :
"Every action of the public authority or the person acting in public interest or its acts give rise to public element, should be guided by public interest. It is the exercise of the public power or action hedged with public element becomes open to challenge. If it is shown that the exercise of the power is arbitrary, unjust and unfair, it should be no answer for the State, its instrumentality, public authority or person whose acts have the insignia of public element to say that their actions are in the field of private law and they are free to prescribe any conditions or limitations in their actions as Page 20 of 54 C/SCA/13075/2000 JUDGMENT private citizens, simpliciter, do in the field of private law. Its actions must be based on some rational and relevant principles. It must not be guided by irrational or irrelevant considerations. Every administrative decision must be hedged by reasons."
16. The distinction between private law and public law remedy is now settled by the Supreme Court in the case of LIC v. Escorts Ltd., AIR 1986 SC 1370, by a Constitution Bench thus :-
"If the action of the State is related to contractual obligation or obligations arising out of the contract the Court may not ordinarily examine unless the action has some public law character attached to it. The Court will examine actions of State if they pertain to the public law domain............."
17. In Dwarkadas Marfata and Sons v. Board of Trustees of the Port of Bombay, AIR 1989 SC 1642, it was held by the Supreme court that the corporation must act in accordance with certain constitutional conscience and whether they have so acted must be discernible from the conduct of such corporations. Every activity of public authority must be informed by reasons and guided by the public interest. All exercises of discretion or power by public authority must be judged by that standard. The Supreme Court further held that even in contractual relations the court cannot ignore that the public authority must have constitutional conscience so that any interpretation put up must be to avoid arbitrary action, lest the authority would be permitted to flourish as imperium in imperio. Whatever be the activity of the public authority, it must meet the test of Article 14 and judicial review strikes an arbitrary action.
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18. In Mahabir Auto Stores v. Indian Oil Corporation, AIR 1990 SC 1031, it was held by the Supreme Court that the State, when acting in its executive power, enters into contractual relation with the individual, Article 14 would be applicable to the exercise of the power. The action of the State or its instrumentality can be checked under Article 14. Their action must be subject to rule of law. If the Governmental action even in the matter of entering or not entering into contracts, fails to satisfy the test of reasonableness, the same would be unreasonable. Rule of reason and rule against arbitrariness and discrimination, rules of fair play, natural justice are part of the rule of law applicable in situation or action by State/instrumentality in dealing with citizens. Even though the rights of the citizens, therefore, are in the nature of contractual rights, the manner, the method and the motive of a decision of entering or not entering into a contract, are subject to judicial review on the touchstone of relevance and reasonableness, fair play and natural justice, equality and non-discrimination. It is well settled that there can be 'malice in law'. It was also further held that whatever be the act of the public authority in such monopoly or semi-monopoly, it must be subject to rule of law and must be supported by reasons and it should meet the test of Article 14.
19. The Supreme Court has rejected the contention of an instrumentality or the State that its action is in the private law field and would be immune from satisfying the tests laid under Article 14. The dichotomy between public law and private law rights and remedies, though may not be obliterated by any straight jacket formula, it would depend upon the factual matrix.
Page 22 of 54C/SCA/13075/2000 JUDGMENT The distinction between public law and private law remedy has now become too thin and practically obliterated.
20. In the sphere of contractual relations, the State is instrumentality, public authorities or those whose acts bear insignia of public element, action to public duty or obligation are enjoined to act in a manner that is fair, just and equitable, after taking objectively all the relevant options into consideration and in a manner that is reasonable, relevant and germane to effectuate the purpose for public good and in general public interest and it must not take any irrelevant or irrational factors into consideration or be arbitrary in its decision. The duty to act fairly is part of fair procedure envisaged under Articles 14 and
21. Every activity of the public authority or those under public duty or obligation must be informed by reason and guided by the public interest.
21. In Kumari Shrilekha Vidarthi v. State of U. P., AIR 1991 SC 537, the Supreme Court pointed out that the private parties are concerned only with their personal interest but the public authorities are expected to act for public good and in public interest. The impact of every act is also on public interest. It imposes public law obligation and impress with that character, the contracts made by the State or its instrumentality, to the extent, challenge is made on the ground of violation of Article 14 by alleging that the impugned act is arbitrary, unfair or unreasonable, the fact that the dispute also falls within the domain of contractual obligations would not relieve the State of its obligation to comply with the basic requirements of Article 14. To this extent, the obligation is of a public character invariably Page 23 of 54 C/SCA/13075/2000 JUDGMENT in every case irrespective of there being any other right or obligation in addition thereto. An additional contractual obligation cannot divest the claimant of the guarantee under Article 14 of non-arbitrariness at the hands of the State in any of its actions.
22. In Sterling Computers Ltd. v. M. and N. Publications Ltd., AIR 1996 SC 51, it was held that even in commercial contracts where there is a public element, it is necessary that relevant considerations are taken into account and the irrelevant consideration discarded.
23. In Union of India v. M/s. Graphic Industries Co., (1994) 5 SCC 398, the Supreme Court held that even in contractual matters public authorities have to act fairly, and if they fail to do so approach under Article 226 would always be permissible because that would amount to violation of Article 14 of the Constitution. The actions of the State, its instrumentality, any public authority or person whose actions bear insignia of public law element or public character are amenable to judicial review and the validity of such an action would be tested on the anvil of Article 14. While exercising the power under Article 226, the Court would be circumspect to adjudicate the disputes arising out of the contract depending on the facts and circumstances in a given case. The distinction between the public law remedy and private law field cannot be demarcated with precision. Each case has to be examined on its own facts and circumstances to find out the nature of the activity or scope and nature of the controversy. The distinction between public law and private law remedy is now narrowed down.
Page 24 of 54C/SCA/13075/2000 JUDGMENT
24. Bearing in mind the aforesaid propositions explained by the Supreme Court in the afore-noted decisions, I must now address myself on the issue, whether the two writ-applicants herein have the locus to maintain this petition.
25. As noted above, this petition was initially preferred as a Public Interest Litigation. The same was entertained as such till the order dated 13.11.2014 came to be passed by the Division Bench of this Court. It is observed that the petitioners have personal interest in the subject matter as they intend to purchase the property. Thus, the petition has been referred to the Single Judge.
25.1 In the memo of the petition, the status of the petitioners has been declared in paras 3 and 3.1. It is stated that the petitioner no.1 was a trader and his firm is holding licence in the market area. The petitioner no.2 is also an agriculturist in the Patan taluka. The petitioner no.2 also did the trading activity and held licence as a trader in the market area. Thus, the petitioners have direct interest in the affairs of the Market Committee.
25.2 The petitioners and several other members of the Market Committee made representations to the authorities about the mismanagement and allotment of the land in the market area. After the resolution dated 1.12.1999, several representations were made. Taking cognizance of such representations, the Director of APMC exercised its powers under Section 47 of the Act and passed an order on 29.7.2000 calling upon the Market Page 25 of 54 C/SCA/13075/2000 JUDGMENT Committee to explain about several illegalities enumerated therein which include the transfer of plots in the market area as well as the sale of the plot of land in the sub-yard. By the said order, stay was also granted. However, against the said order, the revision applications were filed before the Cooperative Department of the State Government and the said order came to be stayed and the illegalities were perpetuated. This fact is recorded in the report of the Director produced on record at page
285. The present petition, therefore, came to be filed on 18.12.2000 pointing out several illegalities while praying for issuance of appropriate writ, order or direction.
25.3 The contention raised on behalf of some of the contesting respondents that the petition may not be entertained now as the petitioners have no personal interest, is misconceived. This petition was filed as a Public Interest Litigation. The same was entertained by this Court as a Public Interest Litigation. However, in view of the averment that the land is transferred at a throw away price and petitioner no.2 offered to pay much more amount of consideration than the price recovered by the Market Committee made in paras 8 and 16 of the petition, the petition has not been treated to be a Public Interest Litigation.
25.4 In any case, both the petitioners were licence-holder of the Market Committee at the relevant point of time. Several representations have been made about the illegality of the Market Committee. Cognizance of such complaints has been taken by the authorities and therefore, the present petition cannot be thwarted on such technical issues after a period of 18 years.
Page 26 of 54C/SCA/13075/2000 JUDGMENT
26. At this stage, it would be appropriate to notice the dictionary meaning of the 'person aggrieved' to resolve the question raised at the Bar.
26.1 Corpus Juris Secundum, Volume 3 page 510, defines "aggrieved party or person" as under :
"In its broadest signification it denotes one who has suffered an injury to person or to property; one who has been injuriously affected by the act complained of; one who is prejudiced; one having a substantial grievance; one who is afflicted, oppressed, injured, vexed or harassed, or one to whom pain or sorrow is given.
In legal acceptation, or in a legal sense, and when used with reference to legal remedies the words have been construed as having a sufficiently definite meaning which must be determined with reference to the context and subject matter. They may be and have been used as meaning or having reference to any one who is injured in a legal sense, one adversely affected in respect of legal rights; or who suffers from the aggressions of others."
26.2 Black's Law Dictionary (Sixth Edition) defines "person aggrieved" as under :
"Aggrieved party. One whose legal right is invaded by an act complained of, or whose pecuniary interest is directly and adversely affected by a decree or judgment. One Page 27 of 54 C/SCA/13075/2000 JUDGMENT whose right of property may be established or divested. The word "aggrieved" refers to a substantial grievance, a denial of some personal, pecuniary or property right, or the imposition upon a party of a burden or obligation. See Party; Standing. Person aggrieved. To have standing as a "person aggrieved" under equal employment opportunities provisions of Civil Rights Act, or to assert rights under any federal regulatory statute, a plaintiff must show (1) that he has actually suffered an injury, and (2) that the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute in question. Foust v. Trans-america Corp., D.C.Cal., 391 F. Supp. 312, 314."
27. In order to decide the 'locus standi' of the writ-applicants raised at the bar, it would also be appropriate to notice relevant judgments rendered by Their Lordships of the Supreme Court from time to time defining the meaning of word 'person aggrieved' with reference to issuance of writ(s).
28. Way back in the year 1961, a Constitution Bench of the Supreme Court, in the matter of Calcutta Gas Company (Prop.) Ltd. v. State of West Bengal and others, AIR 1962 SC 1044, has held that a person who has a legal right to enforce, can apply under Article 226 of the Constitution of India. Paragraph 5 of the report states as under :
"5. Article 226 in terms does not describe the classes of persons entitled to apply there-under; but it is implicit in Page 28 of 54 C/SCA/13075/2000 JUDGMENT the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. The existence of the right is the foundation of the exercise of jurisdiction of the High Court under Article 226. The legal right that can be enforced under Article 226 like Article 32, must ordinarily be the right of the petitioner himself who complains of infraction of such right and approaches the Court for relief. The right that can be forced under Article 226 also shall ordinarily be the personal or individual right of the petitioner himself, though in the 5 AIR 1962 SC 1044 W.P.(S)No.3714/2015 case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified."
29. In Sidebotham, Re, ex P Sidebotham, (1880)14 Ch D 458, it was observed by Jamesh, LJ:
"But, the words "person aggrieved" do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A "person aggrieved" must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced, which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something."
30. The above-stated passage was relied upon with approval by the Supreme Court in the matter of Thammanna v. K. Veera Page 29 of 54 C/SCA/13075/2000 JUDGMENT Reddy and others, (1980)4 SCC 62 and Shobha Suresh Jumani v. Appellate Tribunal, Forfeited Property and another, (2001)5 SCC 755.
31. In the matter of Gadde Venkateswara Rao v. Government of Andhra Pradesh and others, AIR 1966 SC 828, Their Lordships of the Supreme Court have held that ordinarily, the person who seeks a relief under Article 226 of the Constitution of India must have personal or individual right in the subject-matter and the word "ordinarily" includes, a person who has been prejudicially affected by an act or omission of an authority. Their Lordships observed in paragraph 8 as under :
"... That apart, in exceptional cases, as the expression "ordinarily" indicates, a person who has been prejudicially affected by an act or omission of an authority can file a writ even though he has no proprietary or even fiduciary interest in the subject-matter thereof."
32. In the matter of Bar Council of Maharashtra v. M.V.Dhabolkar and others, (1975)2 SCC 702, in a Constitution Bench, Their Lordships considered the meaning of "person aggrieved" and held as under :
"28. ...... The meaning of the words "a person aggrieved"
may vary according to the context of the statute. One of the meanings is that a person will be held to be aggrieved by a decision if that decision is materially adverse to him. Normally, one is required to establish Page 30 of 54 C/SCA/13075/2000 JUDGMENT that one has been denied or deprived of something to which one is legally entitled in order to make one "a person aggrieved". Again a person is aggrieved if a legal burden is imposed on him. The meaning of the words "a person aggrieved" is sometimes given a restricted meaning in certain statutes which provide remedies for the protection of private legal rights. The restricted meaning requires denial or deprivation of legal rights. A more liberal approach is required in the background of statutes which do not deal with property rights but deal with professional conduct and morality. The role of the Bar Council under the Advocates Act is comparable to the role of a guardian in professional ethics. The words "persons aggrieved" in Sections 37 and 38 of the Act are of wide import and should not be subjected to a restricted interpretation of possession or denial of legal rights or burdens or financial interests. The test is whether the words "person aggrieved" include "a person who has a genuine grievance because an order has been made which prejudicially affects his interests". It has, therefore, to be found out whether the Bar Council has a grievance in respect of an order or decision affecting the professional conduct and etiquette."
33. Likewise, in the matter of Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed and others, (1976)1 SCC 671, the Supreme Court (Constitution Bench) has held that in order to maintain the writ of certiorari, the petitioner must be prejudicially affected by an act or omission of an authority and Page 31 of 54 C/SCA/13075/2000 JUDGMENT in exceptional cases, the rule can be relaxed, and laid down the law as under :
"34. This Court has laid down in a number of decisions that in order to have the locus standi to invoke the extraordinary jurisdiction under Article 226, an applicant should ordinarily be one who has a personal or individual right in the subject-matter of the application, though in the case of some of the writs like habeas corpus or quo warranto this rule is relaxed or modified. In other words, as a general rule, infringement of some legal right or prejudice to some legal interest inhering in the petitioner is necessary to give him a locus standi in the matter. (See State of Orissa v. Madan Gopal Rungta; Calcutta Gas Co. v. State of W.B.; Ram Umeshwari Suthoo v. Member, Board of Revenue, Orissa; Gadde Venkateswara Rao v. Government of A.P.; State of Orissa v. Rajasaheb Chandanmall; Dr. Satyanarayana Sinha v. M/s. S. Lal & Co.)
35. The expression "ordinarily" indicates that this is not a cast-iron rule. It is flexible enough to take in those cases where the applicant has been prejudicially affected by an act or omission of an authority, even though he has no proprietary or even a fiduciary interest in the subject-matter. That apart, in exceptional cases even a stranger or a person who was not a party to the proceedings before the authority, but has a substantial and genuine interest in the subject-matter of the proceedings will be covered by this rule. The principles Page 32 of 54 C/SCA/13075/2000 JUDGMENT enunciated in the English cases noticed above, are not inconsistent with it.
37. It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories: (i) 'person aggrieved'; (ii) 'stranger'; (iii) busybody or meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of pro bono publico, though they have no interest of the public or even of their own to protect. They indulge in the pastime of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the wheels of administration. The High Court should do well to reject the applications of such busybodies at the threshold.
48. In the light of the above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully affect his title to something. He has not been subjected to a legal wrong. He has suffered no legal grievance. He has no legal peg for a justiciable claim to hang on. Therefore he is not a Page 33 of 54 C/SCA/13075/2000 JUDGMENT 'person aggrieved' and has no locus standi to challenge the grant of the no- objection certificate.
49. It is true that in the ultimate analysis, the jurisdiction under Article 226 in general, and certiorari in particular is discretionary. But in a country like India where writ petitions are instituted in the High Courts by the thousand, many of them frivolous, a strict ascertainment, at the outset, of the standing of the petitioner to invoke this extraordinary jurisdiction, must be insisted upon. The broad guidelines indicated by us, coupled with other well- established self-devised rules of practice, such as the availability of an alternative remedy, the conduct of the petitioner etc., can go a long way to help the courts in weeding out a large number of writ petitions at the initial stage with consequent saving of public time and money.
50. While a Procrustean approach should be avoided, as a rule, the Court should not interfere at the instance of a 'stranger' unless there are exceptional circumstances involving a grave miscarriage of justice having an adverse impact on public interests. Assuming that the appellant is a 'stranger', and not a busybody, then also, there are no exceptional circumstances in the present case which would justify the issue of a writ of certiorari at his instance. On the contrary, the result of the exercise of these discretionary powers, in his favour, will, on balance, be against public policy. It will eliminate healthy competition in this business which is so essential to raise commercial morality; it will tend to perpetuate the appellant's monopoly of cinema business Page 34 of 54 C/SCA/13075/2000 JUDGMENT in the town; and above all, it will, in effect, seriously injure the fundamental rights of respondents Nos.1 and 2, which they have under Article 19(1) (g) of the Constitution, to carry on trade or business subject to 'reasonable restrictions' imposed by law."
34. In the matter of Dr.Umakant Saran v. State of Bihar, (1973)1 SCC 485, Their Lordships of the Supreme Court have held that appointment cannot be challenged by one who is himself not qualified to be appointed. The Report state as under :
"10. ...... Dr. Saran, who was not eligible for consideration for appointment at the time, had no right to question the appointments since he was not aggrieved.
15. ..... It would, thus, follow that while Respondents 5 and 6 were eligible for appointment as Lecturers on March 31, 1965 the appellant was not and, therefore, he cannot be regarded as aggrieved for the purpose of the relief claimed by him."
35. In the matter of D.Nagaraj and others v. State of Karnataka and others, (1977)2 SCC 148, the Supreme Court has held that the petitioner approaching the High Court must possess a right. The report states as under :
"7. ..... It is well settled that though Article 226 of the Constitution in terms does not describe the classes of persons entitled to apply thereunder, the existence of the Page 35 of 54 C/SCA/13075/2000 JUDGMENT right is implicit for the exercise of the extraordinary jurisdiction by the High Court under the said Article. It is also well established that a person who is not aggrieved by the discrimination complained of cannot maintain a writ petition. ....."
36. Likewise, in the matter of Dr. N.C. Singhal v. Union of India and others, AIR 1980 SC 1255, Their Lordships of the Supreme Court have held in paragraph 21 as under :
"21. Having examined the challenge to the promotion of respondents 4 to 24 on merits, it must be made clear that the appellant is least qualified to question their promotions. Each one of them was promoted to a post in supertime grade II in a speciality other than Opthalmology and appellant admittedly was not qualified for any of these posts. Even if their promotions are struck down appellant will not get any post vacated by them. ....."
37. Likewise, similar is the proposition of law laid down by the Supreme Court in the matter of State Bank of India v. Yogendra Kumar Srivastava and others, AIR 1987 SC 1399, in paragraph 27, which states as under :
"27. Moreover, there is some force in the contention made on behalf of the Bank that as the Probationary/Trainee Officers are not in the Junior Management Grade which is a different cadre, they have no locus standi to Page 36 of 54 C/SCA/13075/2000 JUDGMENT challenge any benefit conferred on 'the officers of the Junior Management Grade comprising erstwhile Officers Grade-I and Officers Grade-II, as were in the employment of the Bank prior to October 1, 1979."
38. In the matter of R.K. Jain v. Union of India and others, AIR 1993 SC 1769, it has again been held by Their Lordships of the Supreme Court that offending action can be questioned only by the non-appointee and non-appointee can only be considered to be the person aggrieved, and it has been held in paragraph 74 as under :
"74. ..... In service jurisprudence it is settled law that it is for the aggrieved person i.e. non- appointee to assail the legality of the offending action. Third party has no locus standi to canvass the legality or correctness of the action. Only public law declaration would be made at the behest of the petitioner, a public spirited person."
39. In the matter of Utkal University, etc. v. Dr. Nrusingha Charan Sarangi and others, AIR 1999 SC 943, relying upon the matter of Jasbhai Motibhai Desai (supra), it has been held that in order to invoke the writ jurisdiction, the writ petitioner must be a person who has suffered illegal injury and a meddlesome interloper cannot maintain the writ petition, and observed in paragraph 8 as under :
"8. It is in this context that the submission of the University regarding the locus standi of the first Page 37 of 54 C/SCA/13075/2000 JUDGMENT respondent to file the writ petition must also be considered. The University has rightly pointed out that the original writ petition does not disclose any legal injury to the original petitioner/present first respondent, because there is no reason to come to a conclusion that he would have been selected even if all his contentions in the writ petition were accepted. The University has relied upon the decision of this Court in Jashbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed, reported in (1976) 3 SCR 58 at page 71 : (AIR 1976 SC 578 at p.
586) for the purpose of pointing out that the first respondent stands more in the position of a meddlesome interloper than a person aggrieved. There is much force in this contention also."
40. In the matter of Vinoy Kumar v. State of U.P. and others, (2001)4 SCC 734, the Supreme Court has clearly held that writ of certiorari must be claimed by the person aggrieved and third party has no locus standi to file writ petition alleging legal wrong or injury suffered by any individual unless it is a writ of quo warranto or habeas corpus or it is a PIL, and observed as under
in paragraph 2 :
"2. Generally speaking, a person shall have no locus standi to file a writ petition if he is not personally affected by the impugned order or his fundamental rights have neither been directly or substantially invaded nor is there any imminent danger of such rights being invaded or his acquired interests have been violated ignoring the applicable rules. The relief under Article 226 of the Page 38 of 54 C/SCA/13075/2000 JUDGMENT constitution is based on the existence of a right in favour of the person invoking the jurisdiction. The exception to the general rule is only in cases where the writ applied for is a writ of habeas corpus or quo warranto or filed in public interest. It is a matter of prudence, that the court confines the exercise of writ jurisdiction to cases where legal wrong or legal injuries are caused to a particular person or his fundamental rights are violated, and not to entertain cases of individual wrong or injury at the instance of third party where there is an effective legal aid organisation which can take care of such cases. Even in cases filed in public interest, the court can exercise the writ jurisdiction at the instance of a third party only when it is shown that the legal wrong or legal injury or illegal burden is threatened and such person or determined class of persons is, by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the court for relief."
41. In the matter of B. Srinivasa Reddy v. Karnataka Urban Water Supply and Drainage Board Employees' Association and others, AIR 2006 SC 3106, it has been held by Their Lordships of the Supreme Court that in service jurisprudence it is settled law that it is for the aggrieved person that is the non-appointee to assail the legality or correctness of the action and third party has no locus standi to canvass the legality or correctness of the action and observed as under :
Page 39 of 54C/SCA/13075/2000 JUDGMENT "49. It is settled law by a catena of decisions that Court cannot sit in judgment over the wisdom of the Government in the choice of the person to be appointed so long as the person chosen possesses prescribed qualification and is otherwise eligible for appointment. This Court in R.K. Jain vs. Union of India, (1993) 4 SCC 119, was pleased to hold that the evaluation of the comparative merits of the candidates would not be gone into a public interest litigation and only in a proceeding initiated by an aggrieved person, it may be open to be considered. It was also held that in service jurisprudence it is settled law that it is for the aggrieved person that is the non-appointee to assail the legality or correctness of the action and that third party has no locus standi to canvass the legality or correctness of the action.
75. The High Court, in the instant case, was not exercising certiorari jurisdiction. Certiorari jurisdiction can be exercised only at the instance of a person who is qualified to the post and who is a candidate for the post. This Court in Dr. Umakant Saran v. State of Bihar, (1973) 1 SCC 485, held that the appointment cannot be challenged by one who is himself not qualified to be appointed."
42. The conspectus of the above referred judgments of the Supreme Court would indicate that ordinarily a person who seeks relief under Article 226 of the Constitution of India must have personal or individual right in the subject matter and the word 'ordinarily' includes, a person who has been prejudicially affected by an act or omission of an authority.
Page 40 of 54C/SCA/13075/2000 JUDGMENT 43. As held by the Supreme Court in Gadde
Venkateswara Rao (supra) that, in exceptional cases, as the expression 'ordinarily' indicates, a person who has been prejudicially affected by an act or omission of an authority can file a writ even though he has no proprietary or even fiduciary interest in the subject matter thereof.
44. It will be too much for this Court to tell the two writ- applicants after a period of 18 years that they should go home as they have no locus to maintain this petition in their individual capacity. At the cost of repetition, I state that this petition was heard after a period of almost 14 years as a public interest petition. One fine day, a Division Bench of this Court declined to treat it as a petition filed in public interest because, according to the Division Bench, the two writ-applicants are also interested in the land. I do not find anything in the petition on the basis of which it could be said that the two writ-applicants are also interested or were interested at some point of time in purchasing the land in question. Prima facie, it appears from the averments made in the petition that what is sought to be conveyed is that if the allotment of land would be in such a highhanded manner, then even the writ-applicants could have applied for the same. This does not necessarily mean that the two writ-applicants were interested directly in the land in question.
Page 41 of 54C/SCA/13075/2000 JUDGMENT
45. Be that as it may, I propose to take the view that the petitioners have the locus to maintain this petition as they have pointed out several illegalities at the end of the Committee and serious omission or neglect on the part of the authorities in taking appropriate steps in accordance with law to set things right. They have pointed out the highhanded and arbitrary action on the part of the Committee in allotting and selling the margin land of the market area and permitting few private individuals to put up construction on the margin land meant for the purpose of parking. Therefore, in such circumstances referred to above, I reject the preliminary objection raised by Mr.Desai, the learned counsel appearing for the private respondents as regards maintainability of this petition.
46. Mr.Hriday Buch, the learned counsel appearing for the writ-applicants made the following submissions :
"In any development, the 'margin land' has to be kept open to sky. At all material times, the relevant regulations of the development of land and construction specifically provide for leaving 'margin' on all sides of a plot. Such margin lands are always to be kept open to the sky. Instead, the APMC has disposed of 2,537 sq.mtrs. of 'margin land' to as many as 43 persons. Out of the sale/lease, the total consideration earned by APMC is just Rs.20,98,788.
So far as two plots admeasuring 430 sq,mtrs, sold in the sub-market yard, APMC has received total sum of Rs,4,30,000/-.Page 42 of 54
C/SCA/13075/2000 JUDGMENT The market price in the year 1999-2000 was much more than the amount of consideration received by the APMC. The allotments are done at the rate of Rs.1200 per sq.mtr. in case of 7 plots, Rs.1,800 per sq.mtr. qua 1 plot and Rs.1,000 per sq.mtr. qua the remaining plots, though the market price was at least 5-6 times more than the said price. Under the circumstances, APMC suffered loss even on the income, especially because no public auction was done by APMC.
This Court, on 15.4.2009, directed the Director, APMC to get the valuation of the land through a Government Valuer for the year 2000 as well as the current year. Accordingly, a report of District Land Valuation Committee is prepared. The said Committee opined that the price of the land in the year 2000 would be approximately Rs.1,498.17 sq.mtrs. whereas, the price of the land in the year 2009 would be Rs.3,371 sq.mtrs. as the lands are margin lands.
The said report was objected by the petitioner and detailed objection has been submitted which is on record (pg-428). It has been pointed out that the Land Valuation Committee overlooked that APMC is a commercial area and not a single instance is made the basis for arriving at the market price of a commercial area. The petitioner demonstrated that the average market price of the said area was ranging from Rs.6,000 per sq,mtr, to Rs.13,025 per sq.mtr. A comparative statement has also been produced (page-434). Thus, the respondents - occupiers have not opted to take advantage of the order dated 15.4.2009 passed by this Hon'ble Court.Page 43 of 54
C/SCA/13075/2000 JUDGMENT The matter remained pending as a Public Interest Litigation. It is only on 13.11.2014, the Division Bench considered that the petition is not in the nature of Public Interest Litigation and therefore, the same shall be listed before the learned Single Judge.
Admittedly, no permission to put up construction on the plots of land has been taken by the most of the occupiers. As can be seen from the affidavit of the Patan Municipality (page-
364), it is stated as under:-
"3.1 I say that Patan Municipality received applications from respondent Nos.10, 14 and 15 for permission to construct. I say that the said parties have not constructed on the plots allotted to them in the market yard upto 2.7.2001...."
3.2 I further say that the Municipality found that respondent Nos.8, 9, 11 and 13 have put up construction on their respective plots without obtaining permission from the Municipality. The Municipality therefore required to file Criminal Case Nos.208 of 2001, 209 of 2001 and 207 of 2001 and 864 of 2001 respectively under Section 155 of the Gujarat Municipalities Act....."
In the further affidavit filed by the Municipality dated 3.2.2009, it has been stated that the criminal case has resulted into conviction as the occupiers admitted the guilt Page 44 of 54 C/SCA/13075/2000 JUDGMENT and fine has been imposed. The most shocking affidavit on behalf of the Municipality is dated 24.10.2018. The said affidavit has been filed in compliance with the order dated 4.10.2018 passed by this Hon'ble Court. In the said affidavit, it has been stated that the Municipality has regularized the construction of respondent No.8 as well as respondent No.13 under the provisions of the Gujarat Regularization of Unauthorized Development Act, 2011. Shockingly, the Municipality has been a party and despite the order of status quo, such exercise of regularization has been undertaken. In any case, the provisions of GRUDA would not apply to the APMC land as per Section 8 of the Act. It specifically provides that an unauthorized development shall not be regularized in a case where such development is carried out on the land belonging to the government, local authority or statutory body. Under the circumstances, even with regard to the construction, there are blatant illegalities and most of the occupants have carried out the construction without seeking permission from the APMC as well as from the Municipality."
47. Mr.Dipen Desai, the learned counsel appearing for the private respondents, has filed his written submissions. They are as under :
"16.1 The petitioners have preferred the present petition challenging the allotment of land and consequential sale deed made in favour of the respondent nos.8 to 15. It is submitted that during the course of hearing of the petition, it was suggested that in view of the order passed by this Hon'ble Court dated 15.04.2009, whether the answering Page 45 of 54 C/SCA/13075/2000 JUDGMENT respondents are agreeable to pay the current market value of the land in question so that allotment can be regularized.
16.2 In this regard, the above referred answering respondents Nos.8, 9, 10, 11, 16, 17, 18 and 19 are ready and willing to pay the current market price of the land in question for regularization of allotment of the respective lands allotted to them.
16.3 At this juncture, it would not be out of place to state that as far as respondent No.8 is concerned, the construction made by the respondent No.8 on the plot in question came to be regularized by the Patan Municipality under the provisions of Gujarat Regularization of Unauthorized Development Act, 2011 and appropriate amount as directed by the Municipality named as Impact Fees has also been paid and the construction has been regularized by the Municipality. There is no challenge to said order of Municipality.
16.4 Therefore, the construction of the respondent No.8 is concerned, has been regularized.
16.5 So far as other respondents are concerned, not all respondents have constructed however, each and every respondents which have constructed on the plots allotted to them have not made any construction on the margin land. Even otherwise, the legality of the construction or whether the construction is made after approval is not the subject matter of the present petition and the present petition only Page 46 of 54 C/SCA/13075/2000 JUDGMENT relates to allotment of land to the concerned respondents. Therefore, the issue of construction may not be gone into in the present petition as the same is beyond the scope of the petition. There is no prayer for demolition of the construction made without approval or sanction.
16.6 As regards the allotment of land is concerned, the answering respondents had paid prevailing Jantri price to market committee as sale consideration. Therefore, the same was appropriate sale consideration after getting the land valued by a valuer. However, as stated above, if the Hon'ble Court is of the opinion that the land is sold/allotted at lower price, the answering respondents are ready and willing to pay today's market value of the land. However, at the same time, the market committee may also be directed that on payment of such market value, the allotment be regularized and the concerned respondents be also permitted to make construction as is permissible under the relevant laws and the market committee shall not object to such construction or shall not create any hindrance to such construction.
16.7 It would not be out of place to state that the above consensus given by the respondents is to bring an end to the controversy which is hanging fire since last 18 years and therefore, the answering respondents are giving the consensus stated herein-above and are choosing not to raise the legal contentions available to them. However, the present consensus would only be valid if the market committee agrees before this Hon'ble Court that if the answering respondents pay the current market value, then Page 47 of 54 C/SCA/13075/2000 JUDGMENT they would not have any objection to regularize of the allotment made in favour of the answering respondents. If the market committee backs out, then the answering respondents would not continue with the consensus."
48. Mr. Anshin Desai, the learned senior counsel appearing for the respondent no.13, submitted that his client is ready and willing to pay the market price of the land in question, i.e. plots nos.6 to 11 admeasuring total 286 sq.meters, situated at the de- notified 'Nutan Ambika Vegetable Market'.
49. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is, whether appropriate action should be taken for demolition of the construction put up by the private respondents on the margin land kept reserved for the purpose of parking, and after the demolition of the offending part of the structure, whether the remaining portion of the land with construction should be regularized after asking the private respondents to pay the appropriate price in accordance with the market value as on date.
50. I take notice of the fact that in the year 2000, when this matter was being treated as a public interest litigation, a Division Bench of this Court passed an order of status quo dated 26.12.2000 and also directed the Director of Agricultural Marketing and Rural Finance, Government of Gujarat, to submit its report as regards the illegal transfers.
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51. In due deference to the said order referred to above, the Registrar submitted his report, which is at page-275 of the paper-book. The said report specifically records that the land in question was to be kept open as a margin land. The report further indicates that the allotment of land was without any public auction or without fixing any upset price and without inviting tenders.
52. The report referred to above of the Registrar was looked into by this Court and the following order was passed dated 27.02.2009 :
"We have perused the report of the 2nd respondent- Director, Agricultural Marketing and Rural Finance, Gandhinagar . We are not in a position to ascertain as to whether the Market Committee has followed the procedure laid down in executing the lease deed dated 01.11.1999.
The complaint is that plots were allotted to various persons by way of lease without following the laid down procedure and later sale deeds were also executed. The report does not say as to whether any procedure has been followed or not.
As a second chance, we feel it appropriate to give a direction to respondent no.2 to examine and let us know as to whether the Market Committee had followed the laid down procedure before executing the lease deed in question on 01.11.1999.Page 49 of 54
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Post on 13.03.2009."
53. Pursuant to the order passed by this Court referred to above, the Director, APMC, filed an affidavit dated 02.04.2009 [page-422 of the paper-book]. In the said affidavit, it has been stated as under :
"... ... ... From the aforesaid report, it is very clear that the market committee had not followed the procedure laid down before executing the lease deed in question dated 1.11.2009."
It is further stated as under:-
"... ... ... It appears that valuation of the land has also not been done by the government agency or any approved valuer. Further, it appears from the record that no prior permission from the concerned authority has been obtained before fixing the rate...."
54. The report dated 07.03.2009 [page-425 of the paper-book] further indicates that no public advertisement was issued inviting offers for the allotment of the land.
55. It appears that the land in question sold by the APMC is indisputably a margin land. The APMC, in its affidavit-in-reply dated 26.03.2010, has admitted in para-3.4 as under :
"3.4 With reference to para 3.4, it is submitted that the State Government has declared Patan as a District Page 50 of 54 C/SCA/13075/2000 JUDGMENT Headquarters on 1st October 1997 whereas the decision of the Market Committee to allot this margin land to the plot-holders or stall-holders was taken in April, 1997, therefore, by subsequent circumstantial change will not vitiate the decision of the Market Committee......"
It is further stated in Para 3.30 as under:-
3.30 With reference to para 30 of the petition, it is submitted that the said circulars are applicable to the new stalls which are to be disposed of by the Market Committee. The same will not be applicable in the present case, inasmuch as there was no disposal of any plot or stall as envisaged in the said circulars. The other contentions made therein are not true and are denied."
It is further stated in para 3.31 as under:-
3.31B With reference to ground (b) to para 31 of the petition, it is submitted that the margin land kept open was occupied by the plot-holders and stall-
holders, therefore, it was thought it fit to lease out the same with a view to earn revenue out of the land occupied by the plot-holders. It is denied that the Market Committee has committed any breach of any rules or regulations as alleged...."
56. Thus, it is abundantly clear that the margin land was first transferred by way of lease, and thereafter, by way of sale. The Page 51 of 54 C/SCA/13075/2000 JUDGMENT margin land is meant for the purpose of parking. As per the revised N.A. permission granted by the competent authority in the year 1995, the total area of the APMC, Patan, was 1,27,496.31 sq.meters. The construction has been allowed to be undertaken on 39,860.00 sq.meters. Out of the balance area of 87,636,31 sq.meters, the area admeasuring 8,505.70 sq.meters has been designated for 'parking'. The remaining area admeasuring 79,130.61 sq.meters is to be kept reserved for internal roads and margins.
57. I am of the view that the facts of this case are glaring and as clear as a noon day. If not directly, indirectly the private respondents have conceded that the construction has been put up by them on the margin land reserved for the purpose of parking. They have made a fervent appeal before this Court that the construction may be regularized by asking them to deposit the market price of the land prevailing as on date. There is no question of regularizing the construction put up by any individual on the margin land. The margin land is meant for the purpose of parking, etc. The first and the foremost thing this Court disapproves is the manner in which the allotment was made in favour of the private respondents. It is very shocking that the Committee decide to sell land which is a part of the market area. There was no good reason for the Committee to do so knowing-fully well it was illegal. The action of the Committee smacks of only one thing and that is favouritism towards few individuals and personal monetary gain. Initially, the allotment was on the basis of lease, but later, the Committee went to the extent of executing sale-deeds in favour of the different individuals.
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58. I propose to dispose of this petition with the following directions :
(i) The respondents are directed to immediately demolish the offending structures put up on the margin land and clear the same within a period of two weeks from today. If the respondents fail to pull down or demolish the offending structures put up on the margin land, then the Director, APMC, is directed to take necessary steps and see to it that the construction is demolished and the area of the margin land is cleared.
(ii) If the respondents, on their own, demolish or remove the offending structures put up on the margin land, then the next step in the process shall be to fix a particular price of the land on the basis of the market value prevailing today and then inquire with the respondents as regards their readiness and willingness to pay such amount, if they seek regularization of the allotment of the land.
(iii) If the private respondents agree to pay the requisite amount that may be fixed by the authority concerned, then necessary modalities for the purpose of regularization of the construction may be worked out.
However, this Court decline to issue any writ or direction for the purpose of regularization. Whether to regularize the allotment or not, shall be within the discretion of the State Government.
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59. With the above, this writ-application is disposed of.
(J. B. PARDIWALA,J.) /MOINUDDIN Page 54 of 54