Orissa High Court
Residents Development Association vs State Of Odisha on 5 May, 2014
Author: A.K.Goel
Bench: A.K.Goel, A.K.Rath
IN THE HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No. 6183 of 2008
Residents Development Association
of Sector-7, Markatnagar,
Abhinab Bidanasi, Cuttack ..... Petitioner
-Versus-
State of Odisha, & 4 ors. .... Opp.Parties.
For the petitioner ... Mr. P.R.Das,
Amicus Curiae
For the opp.parties ... Mr. R.K.Mohapatra,
Government Advocate
` ( For opp. Party o.1)
Mr. Dayananda Mohapatra
( For opp. Party nos. 2 and 3)
Mr. Bijan Ray, Sr.Advocate
Mr. B.Routray, Sr. Advocate
Mr. S.P.Mishra, Sr.Advocate
(For opp. Party no.4)
BEFORE
THE HONOURABLE CHIEF JUSTICE MR. A.K.GOEL
THE HON'BLE DR. JUSTICE A.K.RATH
Date of hearing : 22.04.2014
Date of Judgment : 05.05.2014
JUDGMENT AND ORDER
( A.K.Goel, CJ.)
1. The issue which has fallen for consideration is
whether opposite party no.4-Ajay Binay Institute of Engineering &
Technology (ABIT) has encroached on public land and whether the
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order dated 19.3.2014 passed by the Additional Chief Secretary to the
Government of Odisha permitting the said opposite party allotment of
five acres of land, in excess of the original allotment of five acres, is
justified.
2. Background facts are as follows. This petition was
initially filed against the action of the Cuttack Development Authority
(CDA) in allotting plots for commercial purpose in zone meant for
institutional purpose. On 9.7.2008, the C.D.A. was directed to submit
a report on the question whether the ABIT has encroached upon the
CDA land. Sri P.R.Das, Advocate was appointed as Amicus Curiae and
the ABIT was made a party to the proceedings. Accordingly, affidavit
dated 23.7.2008 was filed by the Planning Member, CDA stating that
though five acres of land was allotted to ABIT, it encroached on more
land for which the CDA had initiated action against it. Later, it was
brought to the notice of the Court that ABIT had filed some petitions
on the same issue and a batch of writ petitions was heard and decided
on 3.10.2013 by a Division Bench of this Court in W.P. (C) No. 24465
of 2012 (ABIT vs. State of Odisha & ors). It was held that all the
contentions of the ABIT may be gone into in a pending appeal by the
State Government under the provisions of the Orissa Development
Authorities Act, 1982 ( the ODA Act). The operative part of the said
order is as follows:
" In view of the aforesaid position of law laid down
by the apex Court and keeping in view the admitted
fact that appeal is pending before the appellate
authority under Section 91(2) of the O.D.A.Act and
the State Government is in seisin of the matter, the
contentions raised in this writ petition can well be
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adjudicated by the appellate authority in appeal.
Therefore, in fitness of things, instead of exercising
jurisdiction under Article 226 of the Constitution,
since the matter is subjudice before the appellate
authority, liberty is granted to the petitioner to
raise all these questions as raised before this Court,
in the appeal, which shall be considered by the
appellate authority in accordance with law. We
further observe that if the petitioner is
apprehensive of any malfeasance or misfeasance of
the opposite parties, it is at liberty to move the
appellate authority seeking interim relief, which
shall be considered in accordance with law."
3. The appellate authority, before whom the matter was
pending, passed the order dated 19.3.2014 directing that in addition
to 5 acres of land initially allotted to the ABIT, further five acres of
land be allotted to it but area of two more acres unauthorisedly
occupied by it be vacated forthwith. Thereafter, the matter was heard
by this Court on 10.4.2014 and it was observed that legality of the
order dated 19.3.2014 permitting the ABIT allotment of land, in excess
of the original allotment of five acres, may have to be gone into by this
Court. Opposite party no.4 was permitted to file further pleading. The
opposite party no.4 has accordingly filed further pleading on
21.4.2014on the above issue, along with documents relied upon by it in support of its case. The CDA has also filed additional affidavit on 21.4.2014 with documents on the issue in question.
4. Stand of the ABIT as evident from its affidavit dated 21.4.2014 and documents annexed thereto is that the CDA vide letter dated 5.12.1996 had proposed to allot 10 acres of land. Vide letter dated 27.1.2001, 5 acres of land was allotted. Though the same was -4- cancelled on 20.3.2001, on direction of the Chief Secretary dated 24.3.2002, the CDA, vide letter dated 11.7.2002, revoked the cancellation, subject to final cost being worked out. On 8.10.2002, additional 5 acres of land was 'provisionally' allotted subject to submission of undertaking by the ABIT to deposit such cost as may be determined. Vide letter dated 3.2.2003, cost was fixed at Rs.8.8 crores approx and after adjusting payment of Rs. 3.48 crores approx, ABIT was required to deposit Rs. 5.35 crores by 31.7.2003 to regularize the matter. The ABIT did not make the deposit and instead filed W.P.(C) No. 11910 of 2003 against the said price fixation and W.P.(C) 3748 of 2008 against denial of injunction by Civil Court in a suit against order of CDA dated 5.2.2008 threatening to dispossess the ABIT from excess land possessed by it. The said proceedings culminated in the above order of this Court dated 3.10.2013 and thereafter the above order of the appellate authority dated 19.3.2014. The ABIT has also relied upon 'rent' deposits to claim 'tenancy' and also raised plea of estoppel.
5. Stand of the CDA, on the other hand, in affidavit dated 21.4.2014 also relying on its earlier counter affidavit in W.P.(C) No. 11910 of 2003 is that prior to 27.1.2001, there was merely a proposal to allot land to the ABIT but the same was not finalized. Thereafter, 5 acres of land was allotted on 27.1.2001 and additional 5 acres was provisionally allotted on 8.10.2002 subject to deposit of Rs. 5.35 crore by 31.7.2003, in addition to deposit earlier made. Since the petitioner failed to pay the price, the allotment of additional 5 acres stood cancelled. Only 5 acres of land was handed over but the ABIT gradually encroached 15.17 acres of extra land illegally on which the -5- CDA took action to recover the same but the land could not be recovered on account of above proceedings. Voluntary deposit of 'premium' for land illegally occupied in excess of 5 acres did not create any tenancy or other right. No permission to construct any structure beyond 5 acres was ever accorded to the ABIT. By letter dated 7.3.2008, (W-1), the ABIT undertook to pay for next 5 acres and to remove 'encroachment' beyond 10 acres, which shows that ABIT was aware that only 5 acres of land had so far been allotted to it.
6. The question already framed in the earlier part of the order has to be determined in the light of the above pleadings and documents. It is seen from letter dated 27.1.2001 that only 5 acres of land was allotted to the ABIT. Thereafter, though vide letter dated 8.10.2002, additional 5 acres of land was provisionally allotted, subject to payment of cost by 31.7.2003, the said cost having been not paid, the allotment never became operative. The ABIT, however, unauthorisedly occupied 20.17 acres of land i.e. 15.17 acres in excess of allotment. The CDA initiated action to recover the land in excess of 5 acres. It could not succeed on account of order of the status quo which has remained operative till passing of order dated 19.3.2014. Thus, it is clear that but for order dated 19.3.2014, the ABIT has encroached 15.17 acres of land unauthorisedly and raised construction on the land in excess of the land allotted to it in violation of law. Legality of the action of the CDA seeking to recover possession of the land unauthorisedly encroached and demolition of construction unauthorisedly made was the subject matter of consideration before the appellate authority.
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7. The appellate authority has not recorded any clear finding that action of the CDA was in any manner illegal or improper. Without recording such a finding, the appellate authority in its order dated 19.3.2014 proceeded to uphold the claim for additional land on the ground of requirement of the ABIT by observing that it was not proper to put second 5 acres of land to open auction.
8. Learned Amicus Curiae and learned counsel for the CDA assail the order of the appellate authority as illegal and without jurisdiction. It is submitted that while confirmation of first 5 acres of land may be justified, making allotment of further 5 acres of land and that too at a concessional rate was beyond the scope of jurisdiction of the appellate authority. Prime land in the city of Cuttack being vested in a public authority, no individual would be given preference over and above the statutory procedure and policy. Scarce natural resources could not be disposed of by a public authority against the established law. Conferring the benefit on any individual, denying equality to all eligible persons was not permissible, nor land of high value could be given at a concessional price. The appellate authority/revisional authority assumed that the CDA was perpetually bound by its initial offer of allotting additional 5 acres of land which was in fact only provisionally allotted, subject to ABIT paying the price fixed by the specified date. Unless the said condition for allotment of requiring the ABIT to pay the demanded price by the specified date is declared to be illegal and unjustified, no right could be held to have accrued to the ABIT from the said provisional allotment. The said allotment was rendered non-existent on failure of the ABIT to pay the said price. The -7- appellate authority could not take over the function of allotment of land by the CDA and it could only examine the decision of the CDA if it suffered from any illegality.
9. Learned Senior Counsel for the ABIT defend the impugned order by submitting that the order was justified not only in exercise of appellate power under Section 91(2) but also under Section 103 of the Orissa Development Authorities Act, 1982 (ODA Act). It is also submitted that the ABIT had been paying the rent for 20 acres of land and the rent having been accepted by the CDA, the CDA is estopped from denying the possession of the ABIT on the said land. The CDA has duly allotted 10 acres of land and allotment of additional 5 acres being covered by order dated 8.10.2002, the price fixed by the CDA being under challenge and the demand having been stayed, after the order of the appellate authority dated 19.3.2014, the ABIT has made the requisite deposit. The ABIT has given up its right over 8.17 acres of land and limited its claim over 12 acres of land only out of which claim on 10 acres has been accepted.
10. In support of the plea of estoppel, reliance has been placed on the judgment of the Calcutta High Court in Hari Mondal & ors. Vs. Durjodhon Mandal & ors, AIR 1926 Calcutta 882 as follows:
".....The learned Subordinate Judge has found that the lessors accepted and acted upon the kabuliyat and hence they would be clearly bound by the statement contained in it. If therefore, the lessors of the plaintiffs could not be heard to say that the lease granted to the plaintiffs contravenes the provisions of S.85 of the Bengal Tenancy Act it would not be open to Defendants Nos. 1 to 4 who -8- claim under the Defendants Nos. 6 to 9 to question the validity of the lease granted by Defendants Nos. 6 to 9. ...."
11. Reliance has also been placed on judgment of the Hon'ble Supreme Court in Bhuneshwar Prasad & Anr. Vs. United Comercial Bank & ors, (2000)7 SCC 232 as follows:
" ...... However, an agreement creating fresh tenancy within the meaning of Section 116 can be implied from the conduct of the parties. In Ganga Dutt Murarka v. Kartik Chandra Das and Ors. [1961]3SCR813, while affirming the dictum laid down in Khushroo's case (supra), it was held that apart from an express contract, conduct of the parties may undoubtedly justify an inference that after determination of the contractual tenancy, the landlord had entered into a fresh contract with the tenant, but whether the conduct justifies such an inference must always depend upon the facts of each case......"
12. To submit that under Section 103 of the Act, the State Government could issue any direction, including allotment, reliance has been placed on a judgment of this Court in W.P.(C) No. 1495 of 2011 ( Satyajit Mohanty vs. State of Orissa), decided on 10.10.2013 as follows:
"We have already held that at no point of time any right has accrued in favour of the petitioner to be allotted with a plot of land in Prachi Enclave, Phase-1, Chandrasekharpur, Bhubaneswar. While the said situation remained unchanged, the Government took a decision not to allow allotment of any plot of land/flat/house under discretionary quota which was communicated vide Circular/letter dated 20.12.2011 to the Vice- Chairmans of all the Development Authorities and the Secretary, Orissa State Housing Board, Bhubaneswar. Such decision of the Government is binding on the opp.parties-BDA in view of Section -9- 103 of the Orissa Development Authorities Act, 1982 which provides that the Authority shall carry out such direction as may be issued to it, from time to time, by the State Government for the efficient administration of this Act 22 and if in or in connection with the exercise of its powers and discharge of its functions by the Authority under this Act, any dispute arises between the Authority and the State Government, the decision of the State Government on such dispute shall be final."
13. Learned Government Advocate has furnished a letter from the District Sub-Registrar, Cuttack on 21.4.2014 stating that the Bench Mark valuation of the land in Sector-1 was Rs.5.50 crores per acre, if allotment is for residential purpose. He submitted that validity of order of the appellate authority may be decided by this Court.
14. Before proceeding further, the brief scheme of the ODA Act may be noted.
The object of the Act is planned and systematic development of different areas and to prevent unsystematic and unplanned growth. Section 3(3) provides for constitution of a Development Authority consisting of a Chairman, a Vice-Chairman and other members as provided under Section 3(5). The Authority so constituted is a body corporate with power to acquire, hold and dispose of property. The Authority is to prepare development plans, and to ensure that development of the area takes place as per such plans. Permission of the authority is required for any development by any person, including the Government, under Section 16 of the Act. Chapter-VII provides for acquisition and disposal of land. As per Section 75 of the Act, the State Government may place, at the disposal of the Authority any developed or undeveloped land. Disposal of such
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land has to be as per Rules made for the purpose. Section 91 of the Act provides for removal of unauthorized development. Section 91(2) of the Act provides for appeal to the State Government or an Officer appointed by the State Government against the order of removal of unauthorized development. Section 103(1) provides that State Government can direct the Authority to carry out its directions for efficient administration of the Act. Section 103(3) provides for revisional jurisdiction of the State Government to satisfy itself as to the legality or propriety of any order passed by the Development Authority. Section 123 provides for power of the State Government to make rules. The State Government, in consultation with the Authority, may make rules to carry out all or any of the purposes of the Act. Section 124 of the Act provides for framing regulations for carrying out purposes of the Act, including for disposal of the land.
Rule 52 of the Orissa Development Authorities Rules, 1983 provides for disposal of property on such terms and conditions as the Authority may consider expedient. Rule-53 prohibits disposal of property at a value below the market price fixed by the Authority.
Section 91(2) and Section 103(1) and (3) are as follows:-
Sec.91. Removal of unauthorized development.
(1) Xxx xxx xxx (2) Any person aggrieved by an order under Sub-
Section (1) may appeal to the State Government or an Officer appointed by the State Government in this behalf, against that order within thirty days from the date thereof, and the Government or the Officer, as the case may be, may after hearing the parties to the appeal either allow or dismiss the appeal or may reverse or vary any part of the order. The decision of the State
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Government or the Officer shall be final and shall not be questioned in any Court of law.
Sec. 103. Control by State Government.
(1) The Authority shall carry out such directions as may be issued to it, from time to time, by the State Government for the efficient administration of this Act.
(2) xxxx xxxx xxxx (3) The State Government may, at any time, either on its own motion or otherwise, call for the records of any case disposed of, or order passed by the Authority for the purpose of satisfying itself as to the legality or propriety of any order passed or directions issued and may pass such order or issue such directions in relation, as it may think it:
Provided that the State Government shall not pass an order prejudicial to any person without giving such person a reasonable opportunity of being heard.
Rule 52(1) and 54 of the ODA Rules, 1983 are as follows:
Rule 52. Disposal of property.
(1) Properties which have been acquired or purchased in pursuance of a scheme shall, as far as possible, be utilized for the execution of the said scheme. If any property which has been so required is later found to be surplus for the purpose of that scheme the Authority may, subject to any direction by the State Government, utilize, let-out, or dispose of that property in such manner and subject to such terms and conditions as the Authority may consider expedient.
Rule 54. Lease or disposal of property at a value not below the market value-
If any property belonging to the Authority is let out or disposed under Rules 52 and 53 it shall not be at a value below the letting value or
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market value of the property, as the case may be, such value being fixed by the Authority.
15. It is clear from the above that the CDA is the authority for taking decision for allotment of land on such terms as may be considered expedient and has to be at market price. The State Government, in its capacity as appellate authority/revisional authority under Section 91(2) or under Section 103(3), can only interfere if there is any illegality or impropriety in the decision of the CDA. The scope of Section 103(1) is limited to the issue of policy directions and not for dealing with any individual allotment. This legal position is well settled. Reference may be made to Manohar Lal (Dead) by LRs. Vs. Ugrasen (Dead) by LRs. & ors, (2010)11 SCC557 as follows:
"13. In Bangalore Development Authority v. R. Hanumaiah (2005)12 SCC 508, this Court held that the power of the Government under Section 65 of the Bangalore Development Authority Act, 1976 was not unrestricted and the directions which could be issued were those which were to carry out the objective of the Act and not those which are contrary to the Act and further held that the directions issued by the Chief Minister to release the lands were destructive of the purposes of the Act and the purposes for which BDA was created.
14. In Bangalore Medical Trust v. B.S. Muddappa (1991) 4 SCC 54 this Court considered the provisions of a similar Act, namely, the Bangalore Development Authority Act, 1976 containing a similar provision and held that the Government was competent only to give such directions to the Authority as were in its opinion necessary or expedient and for carrying out the purposes of the Act. The Government could not have issued any other direction for the reason that the Government had not been conferred upon unfettered powers in this regard. The object of the direction must be only to carry out the object of the Act and only such directions as were reasonably
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necessary or expedient for carrying out the object of the enactment were contemplated under the Act. Any other direction not covered by such powers was illegal.
15. In Poonam Verma v. DDA (2007)13 SCC 154, a similar view has been reiterated by this Court dealing with the provisions of the Delhi Development Authority Act, 1957. In the said case, the Central Government had issued a direction to make allotment of flat out of turn. The Court held as under: (SCC pp. 160-61, paras 13 & 15) "13. ... Section 41 of the Act, only envisages that the respondent would carry out such directions that may be issued by the Central Government from time to time for the efficient administration of the Act. The same does not take within its fold an order which can be passed by the Central Government in the matter of allotment of flats by the Authority. Section 41 speaks about policy decision. Any direction issued must have a nexus with the efficient administration of the Act. It has nothing to do with carrying out of the plans of the authority in respect of a particular scheme.
* * *
15. Evidently, the Central Government had no say in the matter either on its own or under the Act. In terms of the brochure, Section 41 of the Act does not clothe any jurisdiction upon the Central Government to issue such a direction."
20. In K.K. Bhalla v. State of M.P. (2006)3 SCC 581 this Court has delineated the functions of the State Government and the Development Authority, observing that: (SCC pp. 596-97, paras 59-60 & 62-63) "59. Both the State and JDA have been assigned specific functions under the statute. JDA was constituted for a specific purpose. It could not take action contrary to the scheme framed by it nor take any action which could defeat such purpose. The State could not have interfered with the day-to-day
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functioning of a statutory authority. Section 72 of the 1973 Act authorises the State to exercise superintendence and control over the acts and proceedings of the officers appointed under Section 3 and the authorities constituted under the Act but thereby the State cannot usurp the jurisdiction of the Board itself. The Act does not contemplate any independent function by the State except as specifically provided therein.
60. ... the State in exercise of its executive power could not have directed that lands meant for use for commercial purposes may be used for industrial purposes.
* * *
62. ... the power of the State Government to issue direction to the officers appointed under Section 3 and the authorities constituted under the Act is confined only to matters of policy and not any other. Such matters of policy yet again must be in relation to discharge of duties by the officers of the authority and not in derogation thereof.
63. ... The direction of the Chief Minister being dehors the provisions of the Act is void and of no effect."
23. Therefore, the law on the question can be summarised to the effect that no higher authority in the hierarchy or an appellate or revisional authority can exercise the power of the statutory authority nor can the superior authority mortgage its wisdom and direct the statutory authority to act in a particular manner. If the appellate or revisional authority takes upon itself the task of the statutory authority and passes an order, it remains unenforceable for the reason that it cannot be termed to be an order passed under the Act.
37. .......The State Government can take only policy decisions as to how the statutory provisions would be enforced but cannot deal with an individual application. The revisional authority can exercise its jurisdiction provided there is an order passed by the lower authority under the Act as it can examine only legality or propriety of the order passed or direction issued by the authority therein. In view thereof, we
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are of the considered opinion that there was no occasion for the State Government to entertain the applications of the said parties for allotment of land directly and issue directions to GDA for allotment of land in their favour."
16. The Court can take judicial notice of the fact that land in urban areas is a scarce commodity. Its disposal has to be made as per the statutory norms and Article 14 of the Constitution of India.
17. In Bhikhubhai Vithlabhai Patel v. State of Gujarat, (2008) 49 4 SCC 144, it was observed:
32. ...The powers of public authorities are therefore essentially different from those of private persons. A man making his will may, subject to any rights of his dependants, dispose of his property just as he may wish. He may act out of malice or a spirit of revenge, but in law this does not affect his exercise of his power. In the same way a private person has an absolute power to allow whom he likes to use his land, to release a debtor, or, where the law permits, to evict a tenant, regardless of his motives. This is unfettered discretion. But a public authority may do none of these things unless it acts reasonably and in good faith and upon lawful and relevant grounds of public interest. The whole conception of unfettered discretion is inappropriate to a public authority, which possesses powers solely in order that it may use them for the public good. There is nothing paradoxical in the imposition of such legal limits. It would indeed be paradoxical if they were not imposed.
18. In Kasturi Lal Lakshmi Redely v. State of J & K (1980) 4 SCC 1, it was observed:
10. ...The discretion of the Government has been held to be not unlimited in that the Government cannot give largess in its arbitrary discretion or at its sweet will or on such terms as it chooses in its absolute discretion. There are two limitations imposed by law which structure and control the
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discretion of the Government in this behalf. The first is in regard to the terms on which largess may be granted and the other, in regard to the persons who may be recipients of such largess.
19. In Padma v. Hiralal Motilal Desarda and Ors. AIR 2002 SC 3252, it was observed:
"...the constitutional court acts as the sentinel on the qui vive discharging its obligation as custodian of the constitutional morals, ethics and code of conduct - well defined by series of judicial pronouncements. The Court is obliged to see while scrutinising the conduct and activities of a public body constituted with the avowed object of serving the society to see that its activities bear no colour except being transparent, are guided with the object of public good and are within the four corners of law governing the same. The holder of every public office hold a trust for public good and therefore his actions should all be above board..."
"...Even if a sale of left-over land was a felt-necessity it should have satisfied at least two conditions: (i) a well-considered decision at the highest level; and (ii) a sale by public auction or by tenders after giving a more wide publicity than what was done so as to attract a larger number of bidders."
20. In Centre for Public Interest Litigation v. Union of India, (2012) 3 SCC 1, it was observed:
75. The State is empowered to distribute natural resources. However, as they constitute public property/national asset, while distributing natural resources the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest. Like any other State action, constitutionalism must be reflected at every stage of the distribution of natural resources. In Article 39(b) of the Constitution it has been provided that the ownership and control of the material resources of the community should be so distributed so as to best subserve the common good, but no comprehensive legislation has been enacted to
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generally define natural resources and a framework for their protection. Of course, environment laws enacted by Parliament and State Legislatures deal with specific natural resources i.e. forest, air, water, coastal zones, etc.
87. This Court rejected the argument, referred to the judgments in Ramana Dayaram Shetty v.
International Airport Authority of India (1979) 3 SCC 489, S.G. Jaisinghani v. Union of India AIR 1967 SC 1427, Kasturi Lal Lakshmi Reddy v.
State of J&K, (1980) 4 SCC 1 Common Cause v.
Union of India, (1996) 6 SCC 530, Shrilekha Vidyarthy v. State of U.P. (1991) 1 SCC 212, LIC v. Consumer Education and Research Centre (1995) 5 SCC 482 and New India Public School v. HUDA (1996) 5 SCC 510 and held: (Akhil Bhartiya Upbhokta Congress case (2011) 5 SCC 29, SCC p. 60, para 65) "65. What needs to be emphasised is that the State and/or its agencies/instrumentalities cannot give largesse to any person according to the sweet will and whims of the political entities and/or officers of the State. Every action/decision of the State and/or its agencies/instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well-defined policy, which shall be made known to the public by publication in the Official Gazette and other recognised modes of publicity and such policy must be implemented/executed by adopting a non-
discriminatory and non-arbitrary method irrespective of the class or category of persons proposed to be benefited by the policy. The distribution of largesse like allotment of land, grant of quota, permit licence, etc. by the State and its agencies/instrumentalities should always be done in a fair and equitable manner and the element of favouritism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular functionary or officer of the State."
88. In Sachidanand Pandey v. State of W.B. (1987) 2 SCC 295, the Court referred to some of the precedents and laid down the following propositions: (SCC p. 330, para
40)
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"40. ... State-owned or public-owned property is not to be dealt with at the absolute discretion of the executive. Certain precepts and principles have to be observed. Public interest is the paramount consideration. One of the methods of securing the public interest, when it is considered necessary to dispose of a property, is to sell the property by public auction or by inviting tenders. Though that is the ordinary rule, it is not an invariable rule. There may be situations where there are compelling reasons necessitating departure from the rule but then the reasons for the departure must be rational and should not be suggestive of discrimination. Appearance of public justice is as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism."
21. We are unable to accept the submissions that the State Government, in exercise of its power under Section 91(2) or 103(1) or (3) could make allotment. We are also unable to hold that mere deposit of royalty by the ABIT created any estoppel against the CDA or created any deemed tenancy. The judgments relied upon on behalf of the ABIT do not support its case. On the other hand, it is clear that the scope of the appellate or revisional authority is confined to interfere with an illegal or improper order and scope of power under Section 103(1) is limited to issuing policy directions. In any case, allotment of prime land by a public authority has to be at market value and recipient of allotment has to be identified by rational and non- discriminatory mechanism and after following statutory procedure.
22. Reference to the appellate order shows that the prayer of the ABIT was taken up for consideration as follows:
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"Based on the above mentioned arguments the appellant prayed the following:-
(i) To confirm the allotment of first 5 acres of land appertaining to Plot No. 11/1 A as the appellant has paid all the dues and has taken over possession of the same.
(ii) To settle the allotment of further 5 acres of land appertaining to Plot No. 11/1/B on payment of the cost of the land as fixed by Government @ Rs.48,80,000/- per acre i.e. Rs.112/- per sqft. As CDA has not taken up any development.
(iii) To allot further institutional area as available as site on the extent of about 2.0 acres currently used for access to the institute and parking."
23. The findings on the above issues have been recorded as follows.
"5. On careful consideration of the contentions raised in the written note of arguments as well as arguments put forth before the appellate authority by both the parties it is observed that the first 5 acres of land has been utilized for setting up an educational institution consisting of a School of Architecture and an Engineering College. It is also observed that the appellant had made the full payment based on the claim raised by the CDA at the time of allotment. Further, the cancellation of the allotment within 2 months of allotment was unilateral on the part of the CDA involving no lapse on the part of the allottee. It is also seen that the appellant had appeared in the grievance cell of the Chief Secretary to appeal against unilateral cancellation of the land allotment by the CDA and the Chief Secretary vide order dated 22.4.2002 had directed for status quo ante to be
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restored. Accordingly, the allottee has been in peaceful possession of the said land and has utilized the same for the purpose of running an educational institution. In view of these facts the prayer of the appellant to confirm the allotment of first 5 acres of land pertaining to Plot No. 11/A as final, as the payment has been paid as due and appellant has remained in peaceful possession is accepted.
6. With regard to the second 5 acres of land, the prayer of the appellant to settle at the rate charged by the revenue authority is not found to be tenable. However, their claim that additional land was required for setting up ladies hostel and recreational and academic facilities is found to be reasonable, subject to payment of Rs.2,61,36,000/-(differential amount) along with compound interest @ 18% resting at yearly interval, which comes to Rs.15,36,68,182/- as per the calculation sheet submitted by the CDA. In additional to the above mentioned amount, the appellant shall be liable for ground rent as applicable. It is not considered appropriate to put the second 5 acres of land to open auction as there is crying need for providing hostel facilities for the students of school of architecture, which mainly consists of girls who need safe accommodation. However, allotment of the second 5 acres of land shall be strictly subject to end use restrictions of using the land for ladies hostel, play ground and construction strictly for academic purpose.
7. Finally, on the prayer for allotting further area of 2 acres currently used for access and parking is disallowed, as they have enough land to meet all requirements, including that of parking use within the 10 acres and the appellant is directed to vacate the additional 2 acres of land forthwith, which is unauthorizedly occupied by them and the appellant is directed to deposit the consideration amount for the additional 5 acres of land with CDA within 30 days. Accordingly, the appeal/representation is disposed of."
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24. The above observation shows that regarding the second five acres of land, the appellate authority has proceeded to make allotment without recording any finding that the action of the CDA in treating the provisional allotment of land as cancelled on failure on the part of the ABIT to make deposit, as demanded by specified date, is in any manner illegal and improper.
In Jaipur Development Authority Vs. Children's Academy , Jaipur & Anr., (1995) Suppl.4 SCC 284, the issue considered was whether an allotment survived if the allottee failed to deposit the price at which allotment was offered. Answering in the negative, it was observed:
"7. It would thus be seen that it may be incumbent upon the appellant to allot the land but in case they choose to allot, they may allot on payment of 50% of the sanctioned reserved price. It would be seen that in the first offer, the appellant had offered land @ Rs 160 per sq. metre as reserved price and the respondents had not complied with the same. As stated earlier, the offer stood cancelled. In 1990, when a second offer was made, even then also, it was not complied with. The respondents have relied upon the circular issued by the Government amplifying as to under what circumstances allotment may be made at a lesser price. The Circular dated 13-10- 1987 is only guidelines for disposal of the lands for educational, religious, charitable or public institutions at concessional rate of 25% as the reserved price, but the instructions were to ensure uniformity in the allotment and charging the rates. The offer had been given charging @ Rs 160 per sq. metre in the first instance and the respondents had not paid the amount except Rs 1 lakh. Had they paid the amount at reserved price and claimed refund at 50% or 25%, as the case may, as per their own case, something could be said in their favour. But unfortunately they did
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not accept the offer which was conditional. They had chosen to deposit only Rs 1 lakh as against Rs 21 lakhs. As stated earlier, the cancellation order was not challenged. When a fresh offer was made then also the respondents had not complied with the offer; instead they went to the court for a direction to give them allotment at concessional rate of 25% of original value at Rs 160 per sq. metre. The Division Bench had thus erroneously directed the allotment on payment of 25% of Rs 160 per sq. yard, which offer was no longer subsisting, since it was already cancelled. Under these circumstances, the order of the High Court is clearly illegal."
The appellate authority assumed the jurisdiction of allotting authority and also acted in violation of mandatory requirement of allotment of land at market price. The appellate authority also ignored that conduct of the ABIT in encroaching the 15.17 acres of land without any valid authority disentitled it to further allotment. The encroacher of the public land ought to be removed from the land and cannot be encouraged by way of giving any favour.
In V. Purushotham Rao Vs. Union of India & ors, (2001) 10 SCC 305 as follows:
"23. So far as the fifth question is concerned, it is no doubt true that the appellants have invested considerable amount in the business and have operated it for about eight years but even on equitable considerations, we do not find any equity in favour of the appellants. The conduct of the Minister in making the discretionary allotments has been found to be atrocious, in the very three-Judge Bench decision of this Court and in relation to similar allotments made by the said Minister in favour of 15 persons, who were respondents in Common Cause case. This Court came to hold that the allotments of the public property had been doled out in an arbitrary and discriminatory manner and the appellants had been held to be beneficiaries of such arbitrary
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orders of allotments. The question of granting the allottees relief on an equitable consideration did not arise at all, for the same reasons in a case like this, a sympathetic consideration on the ground of equity would be a case of misplaced sympathy and we refrain from granting any relief on any equitable consideration. In our view, the appellants do not deserve any equitable consideration."
Thus, the impugned order of appellate authority in allotting additional 5 acres of land in favour of ABIT cannot be sustained. If the ABIT needed any land, it was for the ABIT to secure the land at market price at appropriate place and not to encroach upon the prime land without paying its price and thereafter seek allotment by the appellate authority/revisional authority at a concessional rate.
25. In view of the above, we hold that the order dated 19.3.2014 passed by the appellate authority/revisional authority in allotting second five acres of land to ABIT is illegal and void. The CDA may recover the possession of the land in excess of five acres of land originally allotted to the ABIT. If any amount has been deposited by the ABIT for the land in excess of five acres in pursuance of order of the appellate authority, the CDA may refund the same forthwith.
26. The petition is disposed of accordingly.
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JUDGE CHIEF JUSTICE