Madhya Pradesh High Court
Vijay Kumar Tiwari vs State Of M.P. And Ors. on 9 December, 2005
Equivalent citations: 2006(1)MPHT523
Author: R.K. Gupta
Bench: R.K. Gupta
JUDGMENT S.S. Jha, J.
1. This petition is admitted on the limited point pertaining to challenge of the order dated 17-12-91 Annexure P-9 issued by the State Govt. Department of Housing and Environment.
2. Counsel for petitioner submitted that respondent No. 3 Indore Development Authority is constituted under Section 38 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (hereinafter referred to as the Adhiniyam of 1973). Petitioner is challenging whether the lands of the authority constituted under the Adhiniyam can be transferred/leased out on a concessional rate in violation of Section 57 and rules known as Madhya Pradesh Nagar Tatha Gram Nivesh Vikasit Bhoomiyon, Griho, Bhavano Tatha Anya Sanrachanaon Ka Vyayan Niyam, 1975 (hereinafter referred to as Rules). Counsel for petitioner submitted that the Town and Country Development Authority is established under Section 38 of the Adhiniyam, the said Authority prepares the scheme for development of town by acquiring the property or transfer of property by the State Govt. Section 53 of the Adhiniyam imposes restrictions on the land used and land development which provides that from the date of publication of the declaration to prepare a town development scheme, no person shall, within the area included in the scheme, institute or change the use of any land or building or carry out any development, save in accordance with the development authorised by the Director in accordance with the provisions of this Act prior to the publication of such declaration. Section 56 provides that the Town and Country Development may at any time after the date of publication of the final town development scheme under Section 50 but no later than three years there from, proceed to acquire by agreement the land required for the implementation of the scheme, and, on its failure so to acquire, the State Govt. may, at the request of the Town and Country Development Authority, proceed to acquire such land under the provisions of the Land Acquisition Act, 1894 and on the payment of compensation awarded under that Act and any other charges incurred by the State Govt. in connection with the acquisition, the land shall vest in the Town and Country Development Authority subject to such terms and conditions as may be prescribed. Section 57 provides that the authority shall take necessary steps to develop the land vested in it under Section 56 in accordance with the provisions of the town development scheme. Section 58 of the Adhiniyam relates to disposal of land, buildings and other development works. It provides that subject to such rules as may be made by the State Govt. in this behalf, the Town and Country Development Authority shall, by regulation, determine the procedure for the disposal of developed lands, houses, buildings and other structures. Thus Section 58 lays down that the disposal of the immovable property in the hands of development authority can be transferred in terms of the rules framed by the State Govt. and the regulations of the Authority.
3. For the purpose of management of lands, rules have been framed under this Act known as Madhya Pradesh Nagar Tatha Gram Nivesh Vikasit Bhoomiyon, Griho, Bhavano Tatha Anya Sanrachnaon Ka Vyayan Niyam, 1975 (hereinafter referred to as the Niyam of 1975). Rule 2 of the said rules defines the authority as Town and Country Development Authority. Rule 3 of the Rules provide that no land vested in or managed by the Authority shall be transferred except with the general or special sanction of the State Govt. given in that behalf. Rule 5 of the Rules provide for the manner by which land of the Authority can be transferred. It provides that land can be transferred by direct negotiations with the party or by public auction or by inviting tenders or under concessional terms.
4. Now the question is when the land can be transferred on concessional terms, Rule 19 of the Rules provides that Authority may with the previous approval of the State Govt. lease out on concessional terms any authority land to any public institution or body registered under any law for the time being in force. Thus, transfer of land on concessional rate is subject to previous approval of the State Govt. Rule 20 further prohibits that ordinarily, no lease or sale of land on concessional terms shall be allowed for the purposes of other than charitable purposes such as for hospital, educational institutions and orphanages. So the concessional land leased or sale of land on concessional terms is permissible to the institutions for the charitable purposes.
5. Now the question arises whether vide Annexure A-9 land of the Authority can be transferred on concessional rate to respondent No. 4 being press or any other press by the Authority in violation of the Act and Rules. Vide Annexure A-9 one D.S. Roy, Dy. Secretary of the Department of Housing and Environment has directed Chief Executive Officer Indore Development Authority to allot land on a concessional rate to respondent No. 4, a daily newspaper run in the name and style of "Dainik Choutha Sansar". It is mentioned in the order that this allotment shall not be precedence for any other allotment.
6. The question involved in the case is whether Dy. Secretary of Housing and Environment Department has jurisdiction to direct transfer of land on concessional rates dehors of the Rules framed under the Act. Respondent No. 3 has filed its return and submitted that Scheme No. 54 was prepared by the authorities and the allotment was under challenge in a public interest litigation before the Indore Bench in M.P. No. 1873/91. The judgment is filed as Annexure R-3/9 and submitted that as regards disposal of plots in the Town Planning, Scheme No. 54 has been determined and it is directed that respondent No. 3 Development Authority is entitled to sell the plots of land of Scheme No. 54 even though without completing development work under the Scheme but it is not entitled to sell any of the plots without either putting them to auction after inviting tenders from the Public at large or through negotiations without giving a pubic notice inviting people at large to make their offers for negotiation of price and terms and conditions of sale. The Development Authority was restrained from selling plots other than Plot Nos. A-1, B-1 and B-2. In spite of the orders of the Court, on the directions of the State Govt. lease has been granted in favour of respondent No. 4 on a concessional rate vide order dated 30th April, 1992 by the Chief Executive Officer and an agreement was also entered into. It is pertinent to note that writ petition was filed in the year 1992 and interim order was passed on 3-11-92 by staying the operation of order dated 17-12-91. In spite of interim orders, State Govt. and respondent No. 3 continuously issued orders for allotment of land to respondent No. 4. On 13-11-96 a representation of respondent No. 4 was considered and the lease rent of 7.5% mentioned in the order Annexure A-9 was reduced to 2% by one R.D. Ahirwar, Additional Secretary in complete violation of directions of this Court. Again on 14-2-97 lease was executed for a period of 30 years in favour of respondent No. 4. Respondent No. 4 filed its return before this Court way back on 3-5-93 again applied to the Ministry of Environment, M.P. Govt. on 21-2-97 for modification in the lease. On this letter, on 21-3-97 vide Annexure R- 3/16 one P.V. Thomas under Section 3 of Department of Housing and Environment wrote a letter to Chief Executive Officer for its consent for modification of the terms and conditions for converting the land for commercial complex instead of press. Vide Annexure R-3/17 Chief Executive Officer informed that the application should be decided by the State. However, the Chief Executive Officer was again informed vide Annexure R- 3/19 that since respondent No. 4 has requested that after construction of press he wants to utilise the remaining land for commercial purpose and sought permission for construction and the permission was granted vide letter dated 13-8-1999 vide Annexure R-3/19. Vide Annexure R-3/20 respondent No. 3 Indore Development Authority informed that for transfer of this land on the concessional rate, Development Authority has suffered loss of Rs. 44,71,749/- which may be allotted by the Govt. to the Authority. Again, Mr. A.K. Kurup Additional Secretary, Department of Housing and Environment informed Development Authority vide letter dated 5-6-03 Annexure 3/21 and sought enquiry from the Chief Executive Officer of respondent No. 3. Respondent No. 3 informed that the land was acquired for starting a press complex. The lands were acquired by the Indore Town Improvement Trust under the Madhya Pradesh Town Improvement Act, 1960. The lands have been allotted on concessional price on the orders of the State Govt. No compensation has been paid by the State Govt. to the Development Authority for selling the land on the concessional rate and on the orders of the Govt. 24 press has been allotted land on concessional rate and a list has been signed along with this letter and again orders were passed that the-Development Authority can permit for construction of the entire land on prescribed rates. Counsel for State has submitted that vide Annexure R-1 on 4th October, 1991 a Cabinet Sub Committee was constituted for allotting the lands to the Press for newspaper on a concessional rate.
7. It may be mentioned that the petition was filed on 8-10-92 and interim order of stay was passed on 3-11-92. Thereafter, petition lingered on and respondents sought time for filing return. Ultimately on 14-3-05 this Court has observed as under :--
Surprisingly, though the matter is pending since more than 13 years, and in spite of the serious allegations, neither the State, nor the Indore Development Authority have filed their return. However, on the request of their Counsel, the State and the Indore Development Authority are finally granted three weeks time to file return.
8. After the period of 13 years on 14-3-05 orders were passed and return has been filed by the State Govt.
9. Counsel for respondent No. 4 submitted that the lands have been allotted to them on the orders of the State Govt. and there is no irregularity in the said allotment.
10. The question involved in the case is whether State Govt. or its Officers on their own can issue directions for sale of land of the authority on a concessional rate in violation of the rules and procedure for transfer of land, whether running of the newspaper can be said to be a charitable purpose.
11. Section 58 of the act of the Adhiniyam is clear and specific. Section 58 is reproduced below :--
Subject to such rules as may be made by the State Government in this behalf, the Town and Country Development Authority shall, by regulation, determine the procedure for the disposal of developed lands, houses, buildings and other structures.
12. On perusal of the aforesaid provision it is clear that transfer of the lands, buildings and other development works shall be subject to rules as made by the State Govt. Therefore, Town and Country Development Authority has to act in a reasonable and open manner in its dealing with the citizens. It can transfer the lands strictly in terms of the rules. Under Section 56 of the Adhiniyam the lands vests with the Authority, therefore, the transfer of land either by sale or by lease should be strictly in terms of the rules framed by the State Govt. or the regulations of the Authority. Rules of 1975 specifies the person entitled for getting the land on concessional terms which is provided under Rules 19 and 20. Rule 20 of the Rules is reproduced below :--
Ordinarily, no lease or sale of land on concessional terms shall be allowed, for the purposes of other than charitable purposes such as for hospital, educational institutions and orphanages.
13. Under the Rule, ordinarily, no lease or sale of land on concessional rates shall be allowed, for the purposes other than charitable purposes. Thus, Legislature intended the land on concessional rate can be given to any public institution or body registered for the charitable purposes. Except the bodies mentioned in the Rule 20 no other body or press is entitled for the lease on concessional rate. Newspapers does not fall within the definition of charitable purpose. Charitable purpose has been considered in the case of Municipal Corporation of Delhi vs. Children Book Trust, , and it is held that an institution imparting education in school can not be regarded as a charitable object. An element of public benefit or philanthropy has to be present. Today, education has acquired a wider meaning. If education is imparted with a profit motive, to hold, in such a case, as charitable purpose, will not be correct. Thus charitable purpose should not be given to the body which is used for a profit motive. Thus newspapers do not fall within the definition as Institution for charitable purpose.
14. Therefore, transfer of land of the Authority on the orders of the State Govt. at concessional rate by any authority to the newspaper or any other institution which is not a charitable institution is void ab initio and contrary to provisions of Section 57 and Rules made thereunder. State has to act strictly within the four corners of the law. It can not distribute lands causing loss to the authority. Therefore, disposal of the lands pursuant to the letter of a Secretary or Govt. is objectionable for more than one reason. Fair play is expected from the State Govt. and they must act in accordance with the law. It is contended by the respondents that newspaper plays a very important role in the Society, therefore, they are entitled for concession. This bald statement has no force. The act of the Govt. in distributing largess amounts to influencing the press. In a democracy, strong and independent press is requirement of the Society. However, by distributing largess to press in order to gain favour is against the settled norms of democracy. State Govt. can not act in violation of the Ad-hiniyam and Rule made thereunder.
15. In a similar situation the Apex Court in the case of Ram and Shyam Company v. State of Haryana and Ors., , has observed in Para 18 of its judgment as under:--
The position that emerges is this. Undoubtedly Rule 28 permits contract for winning mineral to be granted by the Government by auction or tender. It is true that auction was held. It is equally true that according to the State Government, the highest bid did not represent the market price of the concession. It is open to the State to dispose of the contract by tender. Even here the expression 'tender' does not mean a private secret deal between the Chief Minister and the offerer. Tender in the context in which the expression is used in Rule 28, means 'tenders to be invited from intending contractors'. If it was intended by the use of the expression 'tender' in Rule 28 that contract can be disposed of by private negotiations with select individual, its validity will be open to serious question. The language ordinarily used in such rules is by public auction or private negotiations. The meaning of the expression 'private negotiations' must take its colour and prescribe its content by the words which precede them. And at any rate disposal of the State property in public interest must be by such method as would grant an opportunity to the public at large to participate in it, the State reserving to itself the right to dispose it of as best subserve the public weal. Viewed from this angle, the disposal of the contract pursuant to the letter by the fourth respondent to the Chief Minister is objectionable for more than one reason. The writer has indulged into allegations, the truth of which was not verified or asserted. The highest bidder whose bid was rejected on the ground that the bid did not represent the market price, was not given an opportunity to raise his own bid when privately a higher offer was received. If the allegations made in the letter influence the decision of the Chief Minister, fair-play in action demands that the appellant should have been given an opportunity to counter and correct the same. Application of the minimum principles of natural justice in such a situation must be read in the statute and held to be obligatory. When it is said that even in administrative action, the authority must act fairly, it ordinarily mean in accordance with the principles of natural justice variously described as fair play in action. That having not been done, the grant in favour of the fourth respondent must be quashed.
16. Therefore, as held in the case of Ram and Shyam (supra), it is not permissible to grant lease on concessional rate to Press and any decision, circular or cabinet decision of the State Government which is violative of the statutory rules will have no force of law being against the provisions of the Rules. In the circumstances, entire action of the Authorities of the State of Madhya Pradesh in directing allotment of lands of the Town and Country Development Authority in the State of Madhya Pradesh on concessional rates to the newspapers is de hors of the Rules. Said directions are contrary to law and the notifications deserves to be quashed. Allotment of lands on concessional rates by the State Authorities against the Rules framed causing loss to the Development Authority deserve to be quashed. Orders of the Authorities of the State Government and the Cabinet decision granting lands on concessional rates is nullity and are quashed as without jurisdiction. In consequence, leases granted on concessional rates in pursuance of the letters of the Authority Annexures P-9, R-3/13, R-3/14, R-3/19 for allotment to respondent No. 4 is quashed. Minutes of the Sub-Committee dated 4-10-1991 Annexure R-l filed with the return of the State Government is also quashed being violative of Rules 19,20 and 21 of the Rules. However, respondent No. 4 will be at liberty to negotiate with the Development Authority in terms of the order dated 24-9-1992 passed by the Indore Bench of the High Court in Writ Petition No. 1873/91 (Shri Kranti Kumar Shukla v. State of M.P. and Anr.). All the leases granted on concessional rates against Rules 19 and 20 are void and are quashed:
17. It is further directed that the lands of the Development Authority shall be transferred strictly in terms of the Rule 5 of the Rules which provides that the lands shall be transferred as under :--
(a) By direct negotiations with the party; or
(b) By public auction; or
(c) By inviting tenders; or
(d) Under concessional terms.
18. Lands in the present case shall be transferred in the light of the directions of the Division Bench of the Indore High Court in the case of Shri Kranti Kumar Shukla (supra) or by public auction or by inviting tenders. If the Authorities decide to dispose of the lands by negotiations, then negotiations shall be strictly in terms of the Rule 6 of the Rules and not otherwise. Development Authority will be at liberty to transfer the lands in terms of Rule 6 of the Rules. Parties who had been allotted the lands will also be entitled for transfer of lands in terms of the Rules and not on concessional rates.
19. Petition succeeds and is allowed. In the circumstances of the case, there shall be no order as to costs.