Madhya Pradesh High Court
Chief Executive Indore Development ... vs Brilliant Estates Limited And Onr Anr. on 27 June, 2017
Author: P.K. Jaiswal
Bench: Virender Singh, P.K. Jaiswal
1
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
D.B.: Hon'ble Shri P. K. Jaiswal &
Hon'ble Shri Virender Singh, JJ.
W. A. No.720/2013
CHIEF EXECUTIVE INDORE DEVELOPMENT
AUTHORITY (IDA) AND ONE ANR.
V/s
BRILLIANT ESTATES LIMITED AND ONR ANR.
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Shri A.S. Kutumable, learned Senior Counsel with Shri
Sudarshan Joshi, learned Counsel for the appellants.
Shri S. C. Bagadiya, learned Senior Counsel with Shri
R.S. Chhabra, learned Counsel for the respondent No.1.
Shri Umesh Gajankush, learned Deputy Advocate
General for the respondent No.2/State.
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ORDER
(27.06.2017) Per P.K. Jaiswal, J.
2. This intra Court appeal has been filed by the appellant
--Indore Development Authority against the order dated 4 th December, 2012, passed in W.P. No.1565 of 2011, by which learned Writ Court allowed the writ petition by quashing the show cause notice dated 4.9.2010 and Resolution dated 19.1.2011 (Annexure P/32).
3. The facts of the case are that one Mr. Jagmohan Sharma, Proprietor of SAINI Automobile, who being the member of automobile association was allotted a plot in 2 Scheme No.44 ad-measuring 2400 square feet but he was given an alternative plot No.201 in Scheme No.54, Mechanic Nagar, Indore vide resolution No.37 dated 1.3.1995 over an area 2099.41 square feet at the rate of Rs.2.52/- per square feet. Later on, it was found by the appellant--I.D.A. that the plot in question is subject to width of main Road No.9 (M.R.
-9) and seize of the plot would be reduced at the request of allottee--Mr. Jagmohan Sharma an alternative plot in place of plot No.201 was allotted. Vide resolution No.274 dated 23.7.2003 in Scheme No.54 plot No.CD-01, area ad- measuring 850 square meters, (more than 8500 square feet) @ Rs.3700/- per square meter i.e. Rs.3500/- per square feet in lieu of cancellation of plot No.201 at Scheme No.54, Mechanic Nagar, Indore. Resolution No.274 dated 23.7.2003 reads as under:-
"vfr] fo"k; dzekad&3 ;kstuk dzekad 54 eSdsfud uxj ds Hkw[k.M dzekads 201 ds cnys vU; Hkw[k.M ifjorZu ckcnA ldYi dzekad 274 fnukad 23-07-2003 ¼'kk[kk&laink½ Jh txeksgu 'kekZ dks ;kstuk dzaekd 54 eSdsfud uxj esa Hkw[kaM dzekad 201 : 2-50 izfr oxZQhV dh nj ij vkoafVr fd;k x;k FkkA mDr Hkw[kaM ,e-vkj&9 dh pkSMkbZ esa vkus ds dkj.k ml ij fuekZ.k dh vuqefr ugha nh xbZ] ftlds dkj.k vkosnd us ;ksa-dzs 54 ih;w&3 deZ&3 esa O;kolkf;d mi;ksx ds fy;s vkjf{kr Hkwfe ij fufeZr gksus okys rhu Hkw[kaMks esa ls fu;kstu dh l{ke Lohd`fr izkIr gksus ds mijkar ,d Hkw[ka> dh vkoaVu o"kZ 2003&2004 dh xkbZM ykbZu dh nj ij djus dk vkosnu fn;k gSA izf/kdkjh cksMZ }kjk cksMZ uksV dk voyksdu djus ds i'pkr Jh 'kekZ dks :
1700 oXkZehVj Hkwfe ls cuus okys nks Hkw[kaMks esa ls ,d Hkw[kaM dk vkoaVu : 3700@& izfr oxZEkhVj dh nj ij djus dk fu.kZj fy;k x;kA blesa ;g Hkh Li"V fd;k x;k fd Jh 'kekZ }kjk Hkw[kaM dz- 201 ds fy;k tek dh xbZ jkf'k : 2-50 izfr oxQhV dks gh lek;ksftr fd;k tkosxk] ml ij fdlh izdkj dk C;kt ugha ns; gksxk vFkkZr izhfe;e isVs tek jkf'k : 5249@& gh lek;ksfto gksxhA vkosnd dh lgefr izkIr gksus ij vkoaVu i= tkjh fd;k tkosA"
4. The appellant--IDA vide its resolution No.377 dated 3.10.2003 decided to the change the allotment of plot No.CD-01. The plot No.CD-01 was changed and for PSP 3 plot (public and semi-public purposes use) near Bombay Hospital having an area of 1700 square meters was allotted @ Rs.5000/- per square meter. Resolution No.377 reads as under:-
"fo"k; dzekad&3 ;kstuk dzekad 54 ih;w&3 deZf';y ds Hkw[kkaMks dks ladYi dz 274] 279 ,oa 295 ds }kjk fd;s x;s vkoaVu ij iqUk% fopkj djuk A ladYi dzekad & 377 fnukad 03-10-2009 ¼'kk[kk&laink½ izdj.k esa cksMZ uksV dk ijh{k.k djus ds mijksr fuEukuqlkj dk;Zokgh djus ds fu.kZ; fy;s x;s%& 1- Jh txeksgu 'kekZ ftUgs izkf/kdkjh ds ladYi dz- 274 ds ek/;e ls ;kstuk dz 54 ih;w 3 def'kZ;y 3 esa Hkw[k.M dzekad lh Mh 1 vkoafVr djus dk fu.kZ; fy;k x;k FkkA mDr vkoaVu fujLr djrs gq, Jh txeksgu 'kekZ dks ckWEcs gkfLiVy ds ikl Ikh- ,l- ih- mi;ksx ds 1700 oxZQhV ds miyC/k Hkw[k.M dk vkoaVu :i;s 5000@& izfr oxZehVj dh nj ij fd;k tkosA 2- izkf/kdj.k ds ladYi dz 295 }kjk Jherh /kuoarhckbZ dks lh Mh 1 Hkw[k.M ls LFkku ij lh Mh 2 Hkw[k.M iwoZ izLrko vuqlkj 8000 oxZQhV dk vkoafVr fd;k tkos] buls :i;s 3700@& izfr oxZehVj dh vj ls izhfe;e dh jkf'k yh tkosA 3- ifj.k; fjlksVZl izk- fy ftUgS ;kstuk dz 54 ih;w 3 esa Hkq[k.M dzekad 05 vkoafVr fd;k x;k Fkk rFkk 772-35 oxZehVj dh Hkwfe Hkw[k.M dz- lh Mh 1 esa ls dCts esa nh xbZ Fkh] budk ekSd ij vkf/kiR; vf/kd {ks= es gS rFkk ,k V;wcosy Hkh cuk gqvk gSA vr% V;wcosy rd dh Hkwfe esa ls iwoZ esa vkoafVr 772-35 oxZehVj de djrs gqw, 'ks"k yxHkx 4500 oxZQhV vfrfjDr Hkwfe fu;kstu 'kk[kk }kjk rS;kj fd;s x;s ud'ks ds vuqlkj ifj.k; fjlkslZ izk-fy- dks : 4500@& izfr oxZehVj dh nj ij vkoafVr dh tkos A "
5. On 7.3.2005 the State Government cancelled the resolution No.377 dated 3.10.2003 and resolution No.295 dated 23.7.2003. (Vide resolution No.377, two other plots were also allotted to one Smt. Dhanwantibai and another to M/s Parinay Resorts Private Limited). Letter/communication dated 7.3.2005 (Annexure P/23) of the State Government reads as under:-
"e/; izns'k 'kklu vkokl ,oa i;kZoj.k foHkkx % ea=ky; % Øekad 1248@288@05@cRrhl Hkksiky] fnukad 07 ekpZ] 2005 izfr] eq[; dk;Zikyu vf/kdkjh] bankSj fodkl izkf/kdj.k bankSj ¼e-iz-½ 4 fo"k; %& bankSj fodkl izkf/kdj.k ds ladYi Øekad 295 ,oa 377 fu;eksa ds foijhr gksus ds dkj.k fujLr fd;s tkus ckor~A lanHkZ%& vkidk i= Øekad 200 fnukad 7@1@05
-=:0:=-
mijksDr lanfHkZr i= dk d`i;k voyksdu djsaA izdj.k ds v/;;u ls ;g rF; ifjyf{kr gqvk fd izkf/kdkjh }kjk tks ladYi dzekad 295 fnukad 23-07-03 ,oa ladYi dzekad 377 fnukad 3-10-03 ikfjr fd;k x;k gS og fu;eksa ds foijhr rFkk izkf/kdj.k ds fgr esa ugha gSA ;fn ;kstuk dzekad 54 ih;w&3 dkef'kZ;y&lhMh&1 dk O;;u [kqyh fufonk ds ek/;e ls fd;k tkrk gS rks mlls izkf/kdj.k dks mldh dher yxHkx 1-00 djksM+ izkIr gksrh fdUrq bldk ifjorZru ,d ,slh fgrxzkgh dks fd;k x;k ftls iwoZ esa uhykeh ds ek/;e ls ,d vU; ;kstuk esa vkoklh; Hkw[k.M vkoafVr FkkA ;fn vkoafVr Hkw[k.M dk vkdkj de gks x;k Fkk rks ;k rks Hkw[k.M en esa tek jkf'k e; C;kt yksVkbZ tkrh ;k fQj mlh ;kstuk esa mlh vkdkj dk Hkw[k.M vkoafVr fd;k tkrkA 2@ bl izdkj izkf/kdkjh }kjk bl izdj.k esa u rks fu;e dk ckjhdh ls v/;;u fd;k gS vkSj u gh izkf/kdj.k dk fgr ns[kkA izkf/kdkjh dk dksbZ Hkh fu.kZ; izkf/kdkjh ds fgr rFkk fu;eksa ds ifjf/k esa fof/k ekU; fu.kZ; gks ldrk gSA 3@ QyLo:i jkT; 'kklu }kjk mijksDr of.kZr fLFkfr esa bankSj fodkl izkf/kdj.k ds ladYi dzekad 295 fnukad 23-7-03 ,oa ladYi dzekad 377 fnukad 3-10-03 dks ,rn~ }kjk fujLr fd;k tkrk gSA e/; izns'k ds jkT;iky ds uke ls rFkk vkns'kkuqlkj milfpo e-iz- 'kklu] vkokl ,oa i;kZoj.k foHkkx"
6. The I.D.A contrary to the order passed by the State Government on 7.3.2005 executed lease deed on 30.3.2007 (Annexure P/5) in favour of Mr. Jagmohan Sharma in respect of plot bearing No. 'PSP' an area ad-measuring 1752.54 square meters at Scheme No.94, Ring Road, Indore. Thereafter, Mr. Jagmohan Sharma filed an application before the I.D.A. for transferring the plot in favour of respondent No.1--M/s Brilliant Estates Limited. On 18.6.2007 on the basis of 'NOC' issued by the I.D.A. the building permission was granted. On 20.7.2007 (Annexure P/3) Mr. Jagmohan Sharma executed registered sale deed in favour of responent No.1. A public notice was issued on 5.12.2007 and after site report dated 5.8.2008 the respondent No.1--Company was directed to deposit the transfer charges amounting to Rs.8,43,219/- and thereafter a named transfer certificate was issued on 27.8.2008. The plot in question was mutated in the 5 name of respondent No.1 in the records of I.D.A. The respondent No.1-Company after taking statutory permissions constructed 'AA' Class Currency Chest and leased out to H.D.F.C. Bank. The respondent No.1 -Company based upon the transfer which was granted in the year 2008 has invested huge amount by constructing the building thereon.
7. On 23.4.2010 a resolution No.60 was passed by the I.D.A. by which the Board of I. D. A. decided to cancel the allotment of plot of respondent No.1/Mr. Jagmohan Sharma and vide resolution No.120 dated 16.8.2010 has decided to cancel the resolution No.377 dated 3.10.2003 and allotment of PSP plot area 1754.54 square meters which was situated near to Bombay Hospital, Indore. Thereafter, on 4.9.2010 a show cause notice was issued by the I.D.A. for termination of lease in respect of area ad-measuring 1752.54 square meters.
8. On 20th September, 2010, the respondent No.1 has submitted its reply to the show cause notice dated 4.9.2010 along with documents. On 22.9.2010 he challenged the said action by filing the writ petition No.11835 of 2010.
9. A detailed reply was filed by the I.D.A. on 15.4.2011 and opposed the prayer for quashment of show cause notice and resolution on the ground that the original allottee Mr. Jagmohan Sharma being the member of the automobile association was to be given a plot in scheme No.44 of 2400 square feet but he was given a plot in Mechanic Nagar Scheme No.54 of having area of 2099.41 square feet at the rate of Rs.2.50 per square feet and lease deed was also 6 executed to the said plot. The said plot was changed from time to time and an area of 1752.54 square meters was allotted near Bombay Hospital for P.S.P. use on 3.10.2003 without following the procedure as contemplated under the Provisions of M.P. Nagar Tatha Gram Nivesh Adhiniyam,1973 and the Rules framed under Sections 58 and 85 of the aforesaid Adhiniyam known as " the Madhya Pradesh Nagar Tatha Gram Nivesh Vikasit Bhoomiyo, Griho, Bhavano Tatha Anya Sanrachnaon Ka Vyayan Niyam, 1975".
10. The stand of the appellant--I.D.A. that the authority land shall be transferred in accordance with the Rules of 1975. When the authority came to know that in respect of 2099.41 square feet of land which was originally allotted to Mr. Jagmohan Sharma, an area of 18000 square feet (1752.42 square meters) was allotted without inviting any tender contrary to the rules and, therefore, decided to cancel the same. The State Government and the IDA being creatures of the statute were bound to act within the four corners thereof. Procedure for disposal of land having been laid down in the Rules, power in that behalf was required to be exercised strictly in conformity therewith and not dehors the same.
11. An area 2099.41 square feet which was originally allotted at the rate of Rs.2.50/- per square feet. Thereafter, an area of more than the 18000 square feet (1752.54 square meters) has been allotted without inviting any tenders, dehors the Rules and, therefore, the I.D.A. has taken a decision to cancel the allotment and prays for dismissal of the writ 7 petition.
12. The learned Writ Court has observed that as no violation of any statutory provisions of law has been pointed out in respect of allotment of land to the predecessor in title, namely, Mr. Jagmohan Sharma and also as there was no mention of the allotment in the letter dated 7.1.2005 of the Chief Executive Officer in respect of allotment of plot to Mr. Jagmohan Sharma, the action initiated by the Indore Development Authority on the basis of the letter dated 7.3.2005, clearly establishes total non-application of mind on the part of the Indore Development Authority and was of the opinion that the plot was rightly allotted to Mr. Jagmohan Sharma (predecessor in title), that too by charging premium and once the plot was allotted in consonance with the statutory provisions as alternative site, the question of cancellation of the same does not arise.
Paras 11 to 14 of the impugned order reads as under:-
"11. In the present case also alternate plot has been allotted to the predecessor in title as the original allotted plot was not available for allotment. Thus, keeping in view the aforesaid, this court does not find any illegality in respect of allotment of plot which was allotted to Mr Jagmohan Sharma as the alternate plot on account of the fact that the original plot was not available. Not only this, the Indore Development Authority has charged the rate from predecessor in title Mr Jagmohan Sharma on the basis of the Collector's guidelines issued by the Collector for the year in question.
12. The plot in question was allotted to Mr Jagmohan Sharma on 01-03-2004 and the lease deed was executed by the Indore Development Authority on 30- 03-2007. It has been argued by the learned counsel for the Indore Development Authority that certain illegality in the matter of allotment of plot was brought to the notice of the State Government, vide letter dated 07-01-2005 by the then Chief Executive Officer and based upon the letter of the then Chief Executive 8 Officer, the State Government has directed cancellation of resolution No. 377 vide letter dated 07- 03-2005. This court has carefully gone through the letter dated 07-01-2005 of the Chief Executive Officer and the letter does not reflects to any illegality, which has taken place in the matter of allotment of land to Mr Jagmohan Sharma (predecessor in title). On the contrary it relates to alleged controversy in respect of allotment of plot to Mrs Dhanwanti Bai and based upon letter dated 07-01-2005, the State Government has directed the IDA to cancel the resolution No. 377 vide letter dated 07-03-2005 and this letter has now became the basis for issuing a show cause notice to the petitioner, who is the successor in title in respect of the plot in question. The Indore Development Authority was well aware of the letter dated 07-01- 2005 and letter dated 07-03-2005 issued by the State Government and with open eyes they have executed the lease deed on 30-03-2007, that too much after the State Government directed the I.D.A. to cancel the resolution No. 377. Lease deed was rightly executed by the I.D.A as the plot in question was not the subject matter of the controversy and the same is established by the letter dated 07-03-2005. The Indore Development Authority after executing the lease has also granted permission, after conducting a site inspection report to Mr Jagmohan Sharma by issuing a 'No Objection Certificate' and thereafter the petitioner Company has submitted an application to the I.D.A for transferring the plot in favour of the petitioner Company.
13. Learned Counsel appearing on behalf of Indore Development Authority Mr Sudharshan Joshi has fairly stated before this court that such a transfers is permissible from one allottee to another allottee. The Indore Development Authority on the basis of the application received from the petitioner Company issued a public notice on 05-12-2007 and thereafter site report was submitted on 05-08-2008. The petitioner Company was directed to deposit transfer charges amounting to Rs. 8,43,219/- and thereafter a Name Transfer Certificate was issued on 27-07-2008. Petitioner Company, as the HDFC bank has expressed its willingness to establish a Bank has obtained necessary permission from the Reserve Bank of India for construction of capital 'AA' Class Currency Chest and after investing more that 19 crores the petitioner Company has constructed a building and the same has been leased out to HDFC Bank and for this purpose 'No Objection Certificate has been obtained from Indore Development Authority, Indore Municipal Corporation and various other authorities. Not only this, the petitioner Company's name has also been 9 mutated in the record maintained by the Indore Development Authority and Indore Municipal Corporation. Petitioner Company based upon the transfer which was permitted in the year 2008 has spent heavy amount by constructing the building, as aforesaid.
14. This court is of the considered opinion that as no violation of any statutory provisions of law has been pointed out in respect of allotment of land to the predecessor in title, namely, Mr Jagmohan Sharma and also as there was no mention of the allotment in the letter dated 07-01-2005 of the Chief Executive Officer in respect of allotment of land to Mr Jagmohan Sharma, the action initiated by the Indore Development Authority on the basis of the letter dated 07-03-2005, clearly establishes total non-application of mind on the part of the Indore Development Authority. This court is of the considered opinion that the plot was rightly allotted to Mr Jagmohan Sharma (predecessor in title), that too by charging premium, keeping in view the market guidelines and once the plot was allotted in consonance with the statutory provisions as alternative site, the question of cancellation of the same does not arise. Plot was later on transferred to the petitioner Company by the Indore Development Authority and acting upon the order of allotment, acting upon the transfer permission granted by the Indore Development Authority for the transfer of the plot, the petitioner Company has invested huge amount by establishing a cash chest and a building. Therefore, keeping in view the totality of the circumstances of the case, petitioner Company cannot be subjected to undue hardship as it is being done in the present case. The impugned show cause notice dated 04-09-2010 and resolution passed on 19- 01-2011 are hereby set-aside.
With the aforesaid, writ petition stands allowed. c.c. as per rules."
13. Thus, it is the order, which has been impugned in this writ appeal.
14. Learned Senior Counsel for the I.D.A--appellant has submitted that it is a case of back door entry. The predecessor in title was originally allotted 2099.41 square feet, which was changed to 2400 square feet on 1.3.1995 and thus, in any case he cannot be allotted an area ad-measuring 18000 square feet (1752.54 square meters) for PSP use which is 10 more than 7 times to the seize of the original allotment. He submitted that respondent No.1-Company has stepped into the shoes of the original allottee and could not have been a better title than its predecessor. He also submitted that learned Writ Court erroneously came to the conclusion that the resolution Nos. 377 and 295 had nothing to do with the plot in question where as the actual position is that the plot in question was not allotted as per rules. The learned Writ Court has wrongly held that the respondent No.1--Company was not the back door entrant. He further submitted that the rates of the property had witnessed a sharp increase after 2002 and as such the plot in question would have fetched much higher price if the same would have been sold through tender or by auction as per Rules and prays that the impugned order be set aside and writ petition filed by the petitioner be dismissed.
15. Per contra, Shri S.C. Bagadiya, learned Senior Counsel has drawn my attention to the letter of the State Government dated 7.3.2005 and submitted that the I.D.A. has recommended for cancellation of allotment of plot which was made in favour of the Smt. Dhanwantibai and M/s Parinay Resorts Private Limited. The Chief Executive Officer of I.D.A. vide letter dated 7.1.2005 had recommended to the State Government for cancellation of two plots allotted to (i) Smt. Dhanwantibai and (ii) M/s. Parinay Resorts Pvt. Ltd. Thereafter, the State Government vide its order dated 7.3.2005 has quashed the Resolutions bearing No. 377 and 295. No order has been passed by the State Government on 7.3.2005 in respect of 'PSP' plot near 11 Bombay Hospital allotted to the predecessor in title of the respondent No.1 and the appellant--I.D.A. has deliberately with a mala fide intention just to harass the respondent No.1 issued a show cause notice for cancellation of allotment. Whereas after allotment of plot to the predecessor in title of the respondent No.1 an application for transfer of lease was made and lease was duly transferred with the permission of the I.D.A. Thereafter, the respondent No.1 after taking permission from the local authorities, constructed a building by making huge investment and thus the action of the I.D.A. was illegal and learned Writ Court rightly quashed the same and allowed the writ petition of the respondent No.1.
16. The learned Deputy Advocate General for the respondent/State supported the stand of the I.D.A. and prays for dismissal of the writ petition.
17. We have heard the learned Counsel for the parties and perused the record of the case.
18. Section 49 of the 1973 Act provides for town development schemes. Section 58 provides for disposal of land in the following terms:
"58. Disposal of land, buildings and other development works Subject to such rules as may be made 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."
19. Section 72 of the 1973 Act envisages the State Government's power of supervision and control over the acts and proceedings of the officers appointed under Section 3 and the authorities constituted under the 1973 Act. Section 73 empowers the State Government to give directions in the 12 following terms:
"73. Power of State Government to give directions. (1) In the discharge of their duties the officers appointed under Section 3 and the authorities constituted under this Act shall be bound by such directions on matters of policy as may be given to them by the State Government.
(2) If any dispute arises between the State Government and any authority as to whether a question is or is not a question of policy, the decision of the State Government shall be final."
20. Section 85 of the 1973 Act provides for rule making power.
21. The State of Madhya Pradesh in exercise of its power conferred upon it under Sections 58 and 85 of the 1973 Act made rules known as "Madhya Pradesh Nagar Tatha Gram Nivesh Vikasit Bhoomiyo, Griho, Bhavanotatha Anya Sanrachnaon Ka Vyayan Niyam, 1975".
22. Rules 3, 4, 5, 19 and 20 of the 1975 Rules which are material for our purpose read as under:
"3. No Government land vested in or managed by the Authority shall be transferred except with the general or special sanction of the State Government given in that behalf.
4. All other land (hereinafter called the "Authority land") shall be transferred in accordance with the following rules.
5. Transfer of the Authority land shall be as under:
a) By direct negotiation with the party; or
b) By public auction; or
c) By inviting tenders; or
d) Under concessional terms.
19. The Authority may with the previous approval of the State Government lease out on concessional terms any authority land to any public institution or body registered under any law for the time being in force.
20. Ordinarily, no lease on concessional terms shall be allowed for the purposes of other than charitable purposes such as for hospital educational institutions and orphanages."
23. The State and I.D.A. being creatures of the statute were bound to act within the four corners thereof. Procedures for 13 disposal of land having been laid down in the Rules, power in that behalf was required to be exercised strictly in conformity therewith and not dehors the same. Both the State and the I.D.A. have been assigned specific functions under the statute.
24. Learned Senior Counsel has placed reliance on a decision of the Apex Court in the case of K. K. Bhalla vs. State of M.P. and others reported in (2006) 3 SCC 581 wherein the Apex Court has held that the State and development authority have taken a policy decision and regulations for allotment of land. An action by way of policy decision or otherwise at the hands of a statutory authority must be in consonance with the statutory rules and not dehors the same.
25. He has also placed reliance on the decision of the Apex Court in the case of Industrial Assistance Group, Government of Haryana and another vs. Ashutosh Ahluwalia and another reported in (2001) 4 SCC 359 and submitted that change of plot is permissible and the resolution by which bigger area was allotted to the respondent No.1 suffers from no infirmity as the process of allotment had already been completed in 2003-2004 and thereafter a construction was made and when the alternative allotment was made in favour of the predecessor in title of the Company at the rates prevailing at the relevant point of time the action of the I.D.A. is just and proper.
26. As per Rules where the undertaken Scheme is not completed and the land acquired is not developed, the 14 authority has to transfer such land to the owner thereof at the first instance.
27. In the case in hand vide resolution No.377 dated 3.10.2003 the Indore Development Authority in exchange allotted an area of 850 square meters to the predecessor in title of respondent No.1 at the rate of Rs.3700/- per square meter which is concessional rate. Thereafter, again the land was re-transferred and allotted plot for 'PSP' use, area 1752.54 square meters, at the rate of Rs.5000/- per square meter at Sector No.B, Scheme No.94, Ring Road, Indore privately without inviting any tender on concessional terms. The grant of 'PSP' Plot at concessional terms was contrary to the provisions of 1973 Act and its Rules. The right to transfer land on concessional terms, thus, is subject to two limitations, viz. (i) approval of the State is required therefor; and (ii) no lease on concessional terms shall be allowed for purposes other than charitable purposes such as hospital, educational institutions and orphanages; which implies that in a given situation a lease may be granted on concessional terms to any other institution but therefor sufficient and cogent reasons must be assigned.
28. In the present case, no reason has been assigned by the I.D.A. while allotting bigger area to the predecessor in title of the respondent No.1. Under the Act and Rules, it is not permissible to grant lease on concessional terms and the same is violative of the statutory rules will have no force of law being against the provisions of the Rules. The entire action of the authority was against the Rules and, therefore, a 15 public authority like the Indore Development Authority has to act in a reasonable and open manner in its dealings with the citizens who come forward in response to its invitation of applications for allotment of lands.
29. In the present case initial allotment was made to one Mr. Jagmohan Sharma in the year 1995 and thereafter the Indore Development Authority has adopted a noval method to allot prime area that too much bigger size of the original allotment without any rime and reasons. No tenders or applications were invited for allotment of CD-01/PSP plot. It is also an admitted fact that at the relevant point of time market value was much higher than the private allotment which was made to respondent No.1. It is well settled that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largess, the Government cannot act arbitrarily at is sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norm which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largess including award of jobs, contracts quotas, licences etc., must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was irrational, unreasonable or discriminatory.
1630. In the present case, the I.D.A. itself has accepted the mistake committed by allotting the land on concessional terms without inviting any tender and, therefore, proceeded to cancel the allotment and passed a resolution to this effect. The State Government also vide letter dated 7.3.2005 directed the I.D.A. to take appropriate action in cancelling the plot.
31. From the aforesaid reasons, we are of the view that the action of the I.D.A. in issuing show cause notice and passing the resolution regarding cancellation of allotment made in favour of petitioner is just and proper. The impugned order passed by the writ Court is liable to be set aside. Accordingly, it is set aside. The writ appeal filed by the appellant is allowed. No costs.
(P. K. Jaiswal) (Virender Singh)
Judge Judge
pp