Gujarat High Court
Paresh M Sayani vs State Of Gujarat Through Secretary on 26 March, 2019
Author: J. B. Pardiwala
Bench: J.B.Pardiwala
C/SCA/15201/2011 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15201 of 2011
With
R/SPECIAL CIVIL APPLICATION NO. 13083 of 2012
With
R/SPECIAL CIVIL APPLICATION NO. 13084 of 2012
With
R/SPECIAL CIVIL APPLICATION NO. 13085 of 2012
With
R/SPECIAL CIVIL APPLICATION NO. 13086 of 2012
With
R/SPECIAL CIVIL APPLICATION NO. 13087 of 2012
With
R/SPECIAL CIVIL APPLICATION NO. 13088 of 2012
With
R/SPECIAL CIVIL APPLICATION NO. 13089 of 2012
With
R/SPECIAL CIVIL APPLICATION NO. 13090 of 2012
With
R/SPECIAL CIVIL APPLICATION NO. 13091 of 2012
With
R/SPECIAL CIVIL APPLICATION NO. 13092 of 2012
With
R/SPECIAL CIVIL APPLICATION NO. 13095 of 2012
With
R/SPECIAL CIVIL APPLICATION NO. 13096 of 2012
With
R/SPECIAL CIVIL APPLICATION NO. 15212 of 2011
With
R/SPECIAL CIVIL APPLICATION NO. 15213 of 2011
With
R/SPECIAL CIVIL APPLICATION NO. 15214 of 2011
With
R/SPECIAL CIVIL APPLICATION NO. 15216 of 2011
With
R/SPECIAL CIVIL APPLICATION NO. 15217 of 2011
With
R/SPECIAL CIVIL APPLICATION NO. 6048 of 2012
FOR APPROVAL AND SIGNATURE:
Page 1 of 37
C/SCA/15201/2011 CAV JUDGMENT
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
==========================================================
PARESH M SAYANI
Versus
STATE OF GUJARAT THROUGH SECRETARY & 1 other(s)
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Appearance:
MR CHINMAY M GANDHI(3979) for the Petitioner(s) No. 1
MR MB GANDHI(326) for the Petitioner(s) No. 1
MR RAKESH PATEL, AGP GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 26/03/2019
CAV JUDGMENT
1. Since the issues raised in all the captioned writapplications are the same, those were heard analogously and are being disposed of by this common judgment and order.
2. For the sake of convenience, the Special Civil Application No.13083 of 2012 is treated as the lead matter.
3. By this writapplication, the writapplicants serving with the City Page 2 of 37 C/SCA/15201/2011 CAV JUDGMENT Civil & Sessions Court, Ahmedabad have prayed for the following reliefs: 20(a) Be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction in the nature of mandamus directing the respondents No.1 & 2 to entertain the application made as per AnnexureA for the land bearing Block No.41 situate at village Chenpur (which is a big land) of which at least 4000 sq.mtrs. of land be allotted to the petitioners.
(b) In the alternative, be pleased to direct the respondents herein to see that if any land shown in AnnexureG is not allotted, then the same may be allotted to the petitioners as all the petitioners are fulfilling the required terms and conditions of the circular.
(c) In the alternative, be pleased to direct the respondents to allot land to the petitioners anywhere surrounding the aforesaid villages of Chenpur, Khodiar, Lilapur etc., at the concessional rates in parity with earlier allotments made at Khodiar.
(d) Pending admission, hearing and/or final disposal of this petition, be pleased to restrain the respondents from allotting the land bearing Block No.41 of village Chenpur, Taluka Dascroi, District Ahmedabad to any other Government employees except the present petitioners.
(e) By way of interim relief, be pleased to direct the respondent No.2 - Collector to forthwith entertain and deal with the application of the petitioners and to inform the petitioners about the acceptance of the application and allotment of the land, as prayed for.
(f) Such other and further relief as this Hon'ble Court may deem just, fit and expedient be granted in favour of the petitioners.
(g) Costs of this petition be provided to the petitioners.
4. The case of the writapplicants in their own words as pleaded in the writapplication is as under: 4.1 That the present petitioners are the employees of City Civil & Sessions Court, Ahmedabad. Some of the employees are belonging to Page 3 of 37 C/SCA/15201/2011 CAV JUDGMENT Schedule Caste and Schedule Tribe and OBC. That all the present petitioners made application for allotment of plot No.41, situated at Mouje village Chenpur, Taluka Dascroi, District Ahmedabad. That all the petitioners made application on 16th December, 2011 and as per the policy of 2003, the inquiry was to be made by the concerned applicant by lapse of four months i.e. on or after 16th April, 2012. That accordingly, the present petitioners herein inquired but, as usual no reply is given. It is submitted that while making an application, the respondents have given the application number and the fees for application for which receipts are also issued.
4.2 That each and every applicant has filled in separate application form, which is known as Schedule1/10 as per the Government Policy and Form. That all the forms of the petitioners herein are ready and will be brought to the Hon'ble Court for perusal, in case of need.
4.3 It is further submitted that the land bearing Survey No.41, which is a Government land and at the time of making an application inquiry was made and village form No.7/12 was also obtained from the Revenue Department. This survey No.41 is an old tenure land admeasuring 8498 sq.mtrs. and it is in the name of the Government of Gujarat. That so far as the situation of the land is concerned, its map together with the sketch and everything is also obtained from the Town Planning Department.
4.4 It is further submitted that the land is falling into the residential zone. The petitioners have also obtained from the Municipal Corporation the Zoning Certificate, which is issued in the name of one of the petitioners. With regard to the concerned land bearing Survey No.41 of Moujevillage Chenpur, it is specially reserved for the residential purpose of government Page 4 of 37 C/SCA/15201/2011 CAV JUDGMENT employees.
4.5 That the Government had issued a circular intimating the period during which the application would be processed and the period during which one would get the plot. Not only that, but a tabular form was also given indicating the salary and entitlement of area of the plot.
4.6 That the Government also, by its order dated 01.11.2003 declared as to which lands are vacant and available for distribution to the Government servants. As per the said order AnnexureB, land bearing Survey Nos.102 and 105 of Mouje Chenpur were available for distribution to the employees. Similarly, land situated at Ognej as well as Khodiyar were also available. As per the Zoning Certificate issued to the petitioners, the land bearing Survey No.41 is also meant for the residential purpose of government employees.
4.7 It is submitted that the present petitioners though made an application for Survey/Block No.41, however, this land being available for the allotment to the government employees and therefore, choice has been given upon the said Survey/Block No.41 of Mouje Chenpur. However, there are other government plots at village Chenpur, Ognaj, village Khodiar and other places which are surrounding the City at Ahmedabad and falling within the limits of Ahmedabad Municipal Corporation area or periphery thereof. Under the circumstances, though application is made, but the present petitioner further submit that if, for any reason the land bearing survey No.41 cannot be allotted to the present petitioners, then in that case, other lands can be allotted to the present petitioners as shown in the statement.
Page 5 of 37 C/SCA/15201/2011 CAV JUDGMENT4.8 It is submitted that herein before one SCA was filed in this Hon'ble High Court bearing SCA No.5944/2010. That petition was also by the staff members of City Civil & Sessions Court, Ahmedabad and in that petition orders were passed and all the 22 applications of the said petitioners were accepted and allotment letters are also issued by the government after the petition being allowed. It is submitted that at that point of time, though their names were selected and allotment was to be made, but attempt was made by the Revenue Officers to place some dispute and to misguide the Hon'ble Court and therefore, the criteria of casting lot was proposed, which was rejected by this Hon'ble Court in the Misc. Application for contempt and thereafter the allotment orders were passed.
4.9 It is a matter of regret that in spite of applications being made, the government is not giving proper response and in spite of policy being framed by the government, the employees who are falling in the category of even District Judges and Civil Judge (S.D.) have also to made hue and cry for getting plots, which is not at all desirable. In the background aforesaid, there are Special Civil Applications, which are filed and pending bearing SCA No.15028/2011 with SCA No.15197/2011 to 15218/2011 wherein also notices have been issued by this Hon'ble Court.
4.10 It is further submitted that so far as the stand of the government is concerned and the way of dealing by the government is concerned, it is really to be deprecated because, it has been recently learnt by the petitioners that employees of the Revenue Department had made an application and that application which was made in August, 2010 but soon thereafter, the applications were immediately accepted and some 27 employees of the Revenue Department were allotted plots by passing a resolution. It is also learnt by the petitioners that a similar situation has Page 6 of 37 C/SCA/15201/2011 CAV JUDGMENT also arisen in the Bhuj District wherein applications were made for allotment of plot for residential purposes and on the basis of this policy of the government, they have also been allotted the plots and orders have been passed. It is required to be noted that the applications were made by such employees of the government on 04.12.2001 and as per the policy within four months the allotment is made and allotment letter is dated 26.04.2002.
4.11 It is also surprising that while the rates are compared, then in Ahmedabad, to the employees of the City Civil Court, Ahmedabad it was fixed at Rs.13000/ and 50% concession is given whereas the land which was allotted to the revenue staff of Ahmedabad of Survey No.259 which is at village Khodiar, just adjoining to the village Chenpur during the very time, the land has been fixed at Rs.3700/ and 50% concession thereof was given to the employees of the Revenue Department who got the land at Rs.1,375/ per sq.mtr. this is absolutely discriminatory and harmful to the government employees and creating illegal classification amongst the government employees, which is required to be taken care of when the petitioners are allotted the land.
4.12 In the facts and circumstances aforesaid, the present petitioners who could not get the plot, have no option but to approach this Hon'ble Court. It is also further clarified that if the petitioners sits idle and delay the matter, though the time for inquiry is over and when there is no response from the respondents, then in that case, it may be possible that the government may allot the land to some other party who is more influential with the Collector and the present petitioners would be left out and may be blamed as not vigilant. Under these circumstances, this petition is filed after waiting and inquiring with the Collector.
Page 7 of 37 C/SCA/15201/2011 CAV JUDGMENT5. Thus, it appears that the writapplicants are dissatisfied and aggrieved by the decision of the State Government not to allot the plots despite the fact that the writapplicants have applied for the same in accordance with the policy of the State Government as laid down in the Circular dated 06/06/2003.
6. The stance of the State Government in this regard as reflected from the affidavitinreply filed by the respondent no.2, duly affirmed by the Resident Additional District Collector, Ahmedabad. The affidavit reads thus:
4. I humbly say and submit that the petitioners herein have invoked extra ordinary writ jurisdiction of this Hon'ble Court under Art.226 read with art.14, 21 and 300A of the Constitution of India and has thereby prayed for issuance of writ of mandamus and/or any other appropriate writ, order or direction in the nature of mandamus directing the respondents no.1 and 2 to entertain the application made as per AnnexureA for the land bearing Block no.41 situated at village Chenpur, admeasuring atleast 4000 sq.mtrs. to be allotted to the petitioners. The petitioners have also prayed for alternative relief to direct the respondents herein to see that if any land shown at AnnexureG is not allotted, then the same may be allotted to the petitioners as the petitioners are fulfilling required terms and conditions as per the circular. The petitioners have also alternatively prayed to direct the respondents to allot land to the petitioners anywhere surrounding the aforesaid villages of Chenpur, Khodiyar, Lilapur etc., at concessional rates in parity with earlier allotment made at Khodiar. The petitioners have also prayed for interim relief to restrain the respondents from allotting the land bearing Block no.41 of village chenpur, Taluka Dascroi, District Ahmedabad. The petitioners have also prayed for interim relief to direct respondent no.2 Collector to forthwith entertain and deal with the application of the petitioners and to inform the petitioners about the acceptance of the application and allotment of the land, as prayed for. It is mainly contended that the petitioners herein are belonging to the Schedule caste, schedule tribe and OBC and are employees of City Civil & Sessions Court, Ahmedabad. It is further contended that except for petitioner no.7 who had submitted her application way back in year 2001, all the petitioners have made application for allotment of plot for residential purpose in view of Page 8 of 37 C/SCA/15201/2011 CAV JUDGMENT the State Government policy dated 6.6.2003, way back in 16.12.2011. It is further contended that the petitioners have applied for allotment in respect of land bearing Block no.41 at Village Chenpur, Taluka Dascroi, Ahmedabad. However, till date no reply is given and on the contrary application received in later point of time are being processed, in violation of principle of equality.
5. I say and submit that core issue involved in the petition with regard to allotment of plots at concessional rates for residential purpose to the petitioners, being Government employees, in view of the policy framed by the State Government vide G.R. dated 6.62003. I humbly say and submit that the State Government has framed policy vide G.R. dated 6.6.2003, for allotment of Government waste lands for Non agricultural use to various categories of persons including Government employees. I humbly say and submit that in view of the aforesaid State Government policy, under Clause (Kh), the District Collectors are empowered to dispose of such Government waste land for allotment to various categories of persons including government employees for residential purpose. It is further provided that so far allotment of lands for residential purpose in case of government employees is concerned, the limits which were prescribed were increased upto 200 sq. mtrs./ Rs.1 lac. It is further provided that the said powers are not absolute in so far as lands included within the limits of 6 major cities viz.Ahmedabad, Vadodara, Surat, Rajkot, Jamnagar and Bhavnagar and the Collector has to send darkhast to the State Government for necessary approval. That the said G.R. also states that so far price of the land is concerned, the same shall be governed by policies that may be framed from time to time. I humbly say and submit that so far as criteria in case allotment of land in case of Government employees is concerned, the same is included in clause 7 of the said G.R. I humbly say and submit that the eligibility criteria for allotment in case of the Government employees, is that as on date of application the employee should have completed 5 years of service and at the same time they should not be holding any land/ house/ flat in their name or in the name of their husband/wife or dependent, within 8 kms from the place where they are seeking allotment. I further say and submit that the said G.R. provides that so far as choice of land is concerned, the land can be allotted either in the District where the employee's home is situated or at the place where the employee works. Again the area of the plot would depend on the salary of the employee as on the date of application. It further provides that the assessment/valuation of the land to be allotted shall be 50% of the value so determined by the District Valuation committee in view of G.R. dated 15.1.1998. It further provides the schedule whereby the price of allotment varies as per the salary of the employee. That the Page 9 of 37 C/SCA/15201/2011 CAV JUDGMENT said allotment is subject to restrictions and conditions as prescribed. I humbly say and submit that the clause 5 specifically provides that in case of allotment of residential purpose, if the number of applications is found more than the land available, draw system is to be followed.
6. That in view of the aforesaid policy of the State Government, the District Collector, respondent no.2 herein on 1.11.2003, had initially identified and declared various Government waste lands including R.S. no.41 admeasuring 08498 Hec. Are. Sq. mtrs. of Chenpur, Taluka Dascroi, Ahmedabad, reserved for allotment to Government employees for residential purpose. I humbly say and submit that it was found that the State Government was actively considering for review of it's earlier policies dated 4.4.2001 and 28.7.2004 in respect allotment of land in case of government employees for residential purpose, and therefore vide GR dated 28.7.2006 the State Government issued general directions whereby it was resolved to form a committee consisting of 1. District Collector, 2. Municipal/Deputy Commissioner, 3. CEO of Area Development Authority, 4. District Development Officer who would identify the lands of Municipal and Nagarpalika, which are not located at prime location having NA potentiality and to be listed and placed on website, making available for allotment. It was also resolved not to allot lands of NA potential, included within the limits of Municipal limits and only those lands, which are identified by the committee were to be made available for allotment. I further say and submit that in view of the instructions given under the G.R. dated 28.7.2006, the committee was constituted and lands bearing revenue survey no.259 at village Khodiar, Taluka Dascroi, R.S. no.137 at village Lilapur, Taluka Daskroi, R.S. no.102 and 105 at Village Chenpur, Taluka Daskroi, R.S no.516 at village Chekhla and R.S. no.169 at Village Garodiya Taluka Sanand of District Ahmedabad were identified and the said list was placed on web site thereby the said listed lands were made available for allotment to the Government employees. I therefore, humbly say and submit that on the date of the application of the petitioners as on 16.12.2011, the said land bearing Block 41 at Chenpur was not identified and was not available for allotment. I say and submit that in view of the policy of the State Government dated 6.6.2003 almost 400 applications including that of the petitioners were submitted in respect of claim for allotment in Govt. Land which were received at the window of the Collector office in routine course of business, however, the same was subject to scrutiny. I humbly say and submit that initially the scrutiny was done at the level of Mamlatdar, Dascroi, however, thereafter the land was included within the limits of City and therefore, the said applications were transferred for scrutiny to the Mamlatdar, City (West). That while scrutiny of these Page 10 of 37 C/SCA/15201/2011 CAV JUDGMENT applications, it was found by the Collector office that the land of Block No.41 was not identified and was not available for allotment and therefore, their applications cannot be entertained as the lands in respect of which allotment is sought is no more available for allotment. I humbly say and submit that the same was communicated to the petitioners vide communication dated 4.10.2012. I therefore humbly say and submit that no delay is attributed on the part of respondent authorities for any inaction in allotment of lands to the petitioners. I humbly say and submit that in fact this fact is not disclosed in the petition by the petitioners and on the contrary a grievance is raised that no reply is received from the respondent authorities till date, which is totally incorrect statement.
7. I humbly say and submit that so far as grievance raised by the petitioners with regard to discrimination and inequality as against alleged allotment in case of District Judges in respect of R.S. No.102 and 105 of village Chenpur and in case of employees of revenue Department is concerned, the same is incorrect and I strongly deny the same. I humbly say and submit that so far as case of District Judges is concerned, the Darkhast was sent by Collector office to the State Government on 10.8.2009, in case of such 28 applicants of R.S. no.102 and 105. That on receipt of these applications/ darkhast the State Government had vide communication dated 26.10.2009 ask to clarify about other applications. I humbly say and submit that the said fact was also communicated to the few of such petitioners vide communication dated 27.11.2009/18.12.2009 and it was also stated that fresh applications may be made in respect of identified lands as listed on website. The said fact was also brought to the notice of the State Government vide communication dated 13.1.2010. It was specifically stated that in view of the instructions of the State Government dated 6.5.2008, the lands were reserved for public purpose. I therefore say and submit that after receipt of application in the Year 20082009 in their case, since the lands of R.S. no.102 and 105 were no more available for allotment and the said fact was very much in the knowledge of those applicants. I further say and submit that meanwhile in the month of April, 2009 the other applicants of R.S. no.105 of Chenpur, of Year 2003 to 2006 had moved writ petition being SCA no.5944 of 2010 raising grievance of inaction for allotment of lands. I humbly say and submit that considering the case that though the land was included within the corporation limit but since it was not NA potential land, a decision was taken to consider these lands at Chenpur for allotment and accordingly, on 3.11.2010 Committee as constituted in view of G.R. dated 28.7.2006, whereby R.S. no.102, 105 of Chenpur were again identified and made available for allotment by putting the same on Page 11 of 37 C/SCA/15201/2011 CAV JUDGMENT web site. I humbly say and submit on 29.12.2010, the Hon'ble High Court issued directions in SCA no.5944 of 2010, to decide the applications of Year 2003 within 15 days. (In case of R.S. no.105). That as per the directions of the Hon'ble High Court, the Darkhast were sent on 3.1.2011/5.1.2011, to the State Government in case of 32 applicants. That in view of the said darkhast, the State Gujarat had called for explanation of Issue no.2 and 3. That after DILR report, the same was submitted to the State Government. That on 18.1.2011, the District Collector communicated to the State Government for approval of Draw as number of applications were found more than the availability of land and accordingly, the State Government suggested for draw vide communication dated 19.1.2011. That thereafter on 28.4.2011, the District Collector intimated about draw to the all applicants, including petitioners of SCA 5944/2010. That being aggrieved by the said action of the respondent authorities, on 29.4.2011 the applicants of SCA 5944/2010 filed contempt petition MCA no.810/2011 wherein the Hon'ble High Court was pleased to stay the draw proceedings. I humbly say and submit that specific grievance was raised by the petitioners therein, that their cases cannot be equated with the applicants of Year 20082010 and hence considering the fact that their applications were of Year 20032006, the State Government had agreed for allotment of land in their cases and accordingly, allotment order were made on 28.7.2011. I humbly say and submit that in view of allotment order dated 28.7.2011 made in favour of the applicants of SCA 5944/2010, the MCA 810/2011 was disposed on 11.8.2011. I humbly say and submit that considering the fact that allotment order were made in the case of the applicants of Year 20032006, the other applicants of Year 2008 2010, preferred writ petition being SCA no.15028 of 2011 and other group of matters and on 4.11.2011 the State Government became aware about, SCA no.15028/2011 and other allied matters being filed. I humbly say and submit that since the lands at Chenpur were identified way back in Year 2010, and in view of the policy of the State Government, the district valuation committee was required to fix the price of the lands made available for allotment and hence, on 27.4.2012, the price were fixed at rate of Rs.29,930/ sq. mtrs in DLPC meeting. Again during the pendency of these group of matters, the Hon'ble Court had called upon the respondent authorities about the time period within which the decision regarding allotment of lands can be done and affidavits were filed by the respective respondents seeking the time for taking decision regarding allotment. That considering the affidavits filed by the respective respondent authorities, the Hon'ble High Court's vide order dated 3.9.2012 was pleased to direct to complete proceedings by 5.10.2012. That thereafter there was a notification from the Election commission declaring State election and hence, Page 12 of 37 C/SCA/15201/2011 CAV JUDGMENT approval was sought for in view of Hon'ble High Court's order and accordingly, the Election Commission was pleased to grant permission to undertake draw but not to disclose details. I humbly say and submit that the said fact was also brought before the Hon'ble Court and considering the same the Hon'ble High Court vide order dated 5.11.2012 was pleased to grant extension of time up to 31.1.2013. That on 29.11.2013 the District Collector, sought permission from the State Government for undertaking Draw and vide communication dated .11.2012, the eligible applicants were informed about draw. It may kindly be appreciated that 58 applicants of R.S. no.102 and 30 applicants of R.S. no.105 were informed about the draw. I humbly say and submit that the petitioners therein, being aggrieved by the said action of respondent authorities have preferred CA no.13010/2012 seeking stay of the draw proceedings, however the Hon'ble High Court was pleased to reject the same vide order dated 22.11.2012. I humbly say and submit that on 24.11.2012 draw proceedings were undertaken wherein all the eligible applicants including petitioners of SCA 15028/2011 therein participated. That the said report dated 4.12.2012 is submitted to the State Government with the appended schedule of the persons covered by draw.
8. I humbly say and submit that so far as grievance made by the petitioners in respect of early allotment of lands in case of revenue officers at Khodiyar is concerned, the same is misconstrued and incorrect. I humbly say and submit that in case of lands bearing R.S. no.259 at Khodiyar is concerned, the lands were identified by the committee and placed on website on 24.08.2009. Here also initially the land was not identified till year 2009, however, the applications were received at window of the Collector office subject to scrutiny. The figures of the application received of the eligible applicants and the order of allotment is as under: Year No. of applications Date of Order 2007 1 March, 2010 2008 14 March, 2010 2009 14 March, 2010 It may kindly be appreciated that as per the State Government Policy, the District Valuation committee so constituted had vide order dated 14.9.2009 fixed the market price at Rs.2700/ per sq.mtrs and in view of policy dated 6.6.2003, allotment price were fixed as per the area of the plots to be allotted. That since the land was available as against the number of the applications, no draw was undertaken. I further say and submit that no court matter was there in respect of the said land at Khodiyar and under the circumstances, after following due procedure as prescribed, the Page 13 of 37 C/SCA/15201/2011 CAV JUDGMENT order of allotment was made on 09.03.2010. I therefore humbly say and submit that in view of the availability of land as well as there being no court matter, the allotment decision could be arrived by the respondent authorities expeditiously. I strongly deny that the petitioners are unequally treated as against the employees of the revenue department. I therefore say and submit that the case of the petitioners cannot be equated with aforesaid cases, in as much as that the lands were identified and made available for allotment in view of the guideline prescribed by the State Government whereas in the case of the petitioners herein, the claim of the petitioners cannot be considered for allotment in respect of Block no.41 as the same is not identified and is not available for allotment. I humbly say and submit that if the petitioners herein applied a fresh and raise their claim in respect of lands being identified and available, then their cases can be considered in accordance with and as per the policy of the State Government.
7. The stance of the State Government as on date as reflected from the affidavitinsurrejoinder, duly affirmed by the City Deputy Collector, West, Ahmedabad is as under:
1. I say and submit that in respect to applications received from petitioners to allot the plots, initially by an order dated 4th October, 2012 passed by the Collector, the same was rejected.
2. I say and submit now even if the applications of all the petitioners is to be considered, then there applications will be governed by the new policy dated 21st September, 2017 framed by the Revenue Department, State of Gujarat.
3. I say and submit that as per the above referred resolution, now officers/employees working in the Gujarat High Court or from the office of Government Pleader, will be entitled to get constructed unit/flat in a high rise building. As per the resolution, the concerned employees/officers are required to form Cooperative Society and the land will be allotted to that Cooperative Society for the purpose for the construction of high rise flat.
4. In the above referred circumstances therefore, all the petitioners will became entitled to construct flat/unit according to new policy subject to fulfilling conditions mentioned therein.
5. So far as the contentions raised by the petitioners in their affidavit in rejoinder to the effect that out of total land admeasuring 8498 sq. mtrs of Survey No.41 of Chainpur, 3400 Page 14 of 37 C/SCA/15201/2011 CAV JUDGMENT sq.mts is intact even after disposing of 5000 sq.mts. is concerned. It is respectfully submitted that the Survey No.41 is now in Town Planning Scheme No.56 and allotted FP No.94 having the area of 5099 sq.mts. So far as remaining land admeasuring 3400 sq. mts. is concerned, the same is gone into cut off in the Town Planning Scheme and therefore, contention of the petitioners is not corrected. In short, at present so far as Survey No.41 of Chainpur is concerned, no land is available which can be allotted to the petitioners.
8. Thus, it appears that the State Government by way of its Resolution dated 22/09/2017 has framed a policy of providing flats to the employees of the High Court of Gujarat and the employees attached to the office of the Government Pleader of the High Court of Gujarat.
9. Submissions on behalf of the writapplicants:
1) That the petitioners are the staff members of the City Civil & Sessions Court, Ahmedabad.
2) That in group of petitions (Ref.1) land bearing Block Nos.102 and 105 situated at village Chenpur admeasuring at least 4000 sq.mtrs. for which the allotment is sought.
3) That a policy was framed by the Government for allotment of land and that policy dated 06.06.2003 is on the record of the case at page90. As per the circular, all lands of the government, which are government padtar lands and which are nonagricultural, for which a policy was framed and as per the said policy, an application was to be made and the District Collector was to consider the same.
4) As per the said policy, persons having completed five years of service in the State Government or Panchayat service or even temporary officers, were all entitled to make the application and the District Page 15 of 37 C/SCA/15201/2011 CAV JUDGMENT Collector, under the said policy, was required to consider the same within 120 days.
5) That applications were made long back on the basis of the policy. That as per AnnexureB, page21 (SCA Group1) an order was passed by the government on 01.11.2003 declaring which lands are available as Government Padtar lands located at Chenpur, Ognej, Khodiyar etc. In some cases (Block Nos.102 & 105) for which preference was given.
6) In the second group Survey No.41 for which demand was made in the petition. It is also prayed that if this land is not available, then, any other land be provided.
7) That one order is already passed on 18.07.2013 by the Hon'ble High Court (Coram: H.N. Devani, J) and as per that order a draw had taken place and according to the draw, some of the petitioners got the land and those matters are disposed off. However, the combined order passed in group of matters is on the record of the case. The present remaining petitioners are the persons who could not get the land in draw.
8) That various receipts of deposit of the amount and application being made to the government are also produced collectively on the record of the case at AnnexureD in the first group of matters.
9) Points for discrimination: Petitioners of the first group have also produced at page30 (AnnexureE) namely, resolution dated 28.06.2010. This is with regard to the allotment order of the Revenue Department employees whereby it is declared that Block No.259 is allotted to revenue department employees. That the said employees had made the applications to the Mamlatdar and the same were forwarded to the Page 16 of 37 C/SCA/15201/2011 CAV JUDGMENT District Collector and proposal was sent on 08.09.2009 and the same was immediately accepted on 09.03.2010 and a negligible price of Rs.1850/ was fixed and the allotment is completed.
10) The present petitioners are the applicants much prior to the revenue department and the receipt AnnexureD collectively would reflect the date on which the applications were made. When all employees of the government should be treated alike and there should be no discrimination and therefore, the preference given by the District Collector to the revenue department employees is absolutely illegal. If they have been given a land, then, in that case, employees of the City Civil & Sessions Court, Ahmedabad cannot be treated unfair but should be treated at par.
11) It is further submitted that some stenographers and other employees of the City Civil & Sessions Court, Ahmedabad (20 in numbers) had also filed one SCA No.5944/2010 in which order was passed by this Hon'ble High Court (Coram: R.R. Tripathi, J) on 29.12.2010 and directions were issued to allot land. However, there again the District Collector wanted to induct the applicants who were not falling into the same category and wanted to curb the rights of the employees of the City Civil & Sessions Court, Ahmedabad for which a contempt application No.819/2011 was filed and thereafter, the draw was cancelled and land bearing Block No.105 admeasuring 5508.75 sq.mtrs. was allotted to the said group of employees of City Civil & Sessions Court, Ahmedabad. That on the basis of the said order, the resolution was passed by the Government dated 05.08.2011, which is produced at AnnexureF page51 of the first group of petition may kindly be considered.
12) That all the petitioners of the said group of employees of the City Page 17 of 37 C/SCA/15201/2011 CAV JUDGMENT Civil & Sessions Court, Ahmedabad have been allotted land as per the policy of the government either 90 sq.mtrs., 135 sq.mtrs., or 200 sq.mtrs., as per their designation and payscale drawn. Hence, in that petition where also applications were made and orders were passed in the year 2011 for giving the land, then why there should be discrimination with the other group of staff of the City Civil & Sessions Court, Ahmedabad and other courts. Reply affidavit and rejoinder may also be considered.
13) So far as the second group is concerned, Survey No.41 for which the claim is made. The drawing of Survey No.41 is at page31 (AnnexureC) and Revenue Survey No.41 is of the measurement of 8498 sq.mtrs. The village Form No.6 is at page94 & 95. Entries 1775 and 1899 are required to be considered.
14) Both the group of petitions were filed in the year 2011 and 2012 and demand for plot No.41 was made. Even then, the government on 31.01.2014 passed an order whereby an entry No.1775 is effected and by order of the year 2014, land admeasuring 3000 sq,mtrs., has been allotted for construction of Revenue Chhora (Revenue Office). Not only that, but during the pendency of the petition, again further order was passed by the government on 14.09.2015 and entry No.1899 is effected on 19.10.2015 whereby further land admeasuring 2099 has been allotted for Industrial Training Institute. Thus, it does not lie in the mouth of the government to say that Revenue Survey No.41 is not available or was never notified.
15) Further, government has filed the affidavit in SCA No.13083/2012 group of petitions at page112 where it is stated that in Survey No.41 total land admeasuring 3400 sq.mtrs. is intact and 5000 sq.mtrs., of land has gone into Town Planning Scheme No.56 and Final Plot No.94 is Page 18 of 37 C/SCA/15201/2011 CAV JUDGMENT allotted and the area of that land is 5099 sq.mtrs. It is contended that the remaining land admeasuring 3400 sq.mtrs. has gone into cut off in the Town Planning Scheme and on that basis, the say of the petitioners is refuted. This fact is totally contrary to record inasmuch as in Town Planning Scheme government land is never forming pat thereof and looking to pages94 & 95 approximately 5000 sq.mtrs., of land is allotted to two institutions and still there remains 2498 sq.mts. of land. In this land also many persons can be accommodated but, during the pendency of the petition any allotment which is made cannot sustain and government cannot, under the guise of such allotment, give preference to someone and jeopardize the interest of the petitioners - government employees. There is nowhere any reference that 3400 sq.mtrs. of land has gone in cut off in the Town Planning Scheme. After two allotments namely, area of 3000 + 2099 sq.mtrs. there does not remain the balance land of 3400 sq.mtrs. Therefore, how can it go in cut off. Therefore, this information is totally contrary to record and a false affidavit seems to have been filed.
16) That the government has taken a further contention that government has framed a new policy dated 21.09.2017. However, this policy is specially meant for the 500 staff members of the G.P. Office and this policy is confined specially to them and not applicable generally. Because, two group of these petitions are filed on the basis of 2003 circular and when applications were made in consonance with the 2003 circular, then in that case, no change in the policy can be made applicable retrospectively and there is no circular which applies to the case of the present petitioners.
17) That Section 38 of the Bombay Land Revenue Code speaks about allotment of land to the government employees. Similarly, under Article Page 19 of 37 C/SCA/15201/2011 CAV JUDGMENT 38 of the Constitution of India, government can frame policy for the purpose of uplift of class of people to improve their economic condition etc., and therefore, with the help of these two provisions, 2003 circular was issued and many have got the benefit only these few petitioners are left out and everywhere plot is allotted according to the status of the government employees and therefore, question of now denial or refusal to the present petitioners does not arise.
18) Mr. Gandhi, the learned counsel vehemently submitted that his clients have acquired a 'vested right' by making application and the acceptance of such application. He further submitted that even on the principles of "Legitimate Expectation", the writapplicants are entitled to the relief prayed for by them in their respective writapplications. He submitted that subsequent change in the policy can never be a ground to defeat a indefeasible right, which accrued in favour of the writ applicants on the date, when they preferred their applications for allotment of the plots.
19) Mr. Gandhi submitted that by keeping the writapplications pending for a long time without any justification, the cause of the writ applicants, which was otherwise acceptable on the date of preferring the application, cannot be permitted to be negatived by any change in the policy.
10. Submissions on behalf of the State of Gujarat: The learned AGP appearing for the State of Gujarat vehemently submitted that there has been change in the policy and according to the new policy, the land would be identified and on such identification of parcel of land, a multistoried building would be constructed and flats Page 20 of 37 C/SCA/15201/2011 CAV JUDGMENT would be allotted to the employees instead of individual plot of land. The learned AGP submitted that with the change in the policy, the writ applicants cannot as a matter of right insist or claim that the State Government should allot the plots. It is submitted that it is a matter of policy and in such circumstances, this Court may not issue a writ of mandamus to the State Government to allot plots. The learned AGP submitted that there being no merit in any of the writpetitions, those be rejected. The learned AGP submitted that even otherwise the land bearing block no.41 situated at Chenpur is not available for the purpose of allotment. The learned AGP submitted that by merely preferring an application, no indefeasible right accrued in favour of the writapplicants for grant of the plots. He submitted that the writapplicants cannot assert any "vested right".
11. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the following questions fall for my consideration.
(1) Whether an applicant who submits an application for grant of plot of land in accordance with the Government Policy or Resolution regulating the grant of plot of land for the purpose of residence acquires a "vested right" to get his application considered as per the policy of the Government at the time when the application was made?
(2) Whether by making application any indefeasible right accrued in favour of the writapplicants for grant of land?
(3) Whether the principles of "Legitimate Expectation" and "Promissory Estopple" are applicable to the present case?
Page 21 of 37 C/SCA/15201/2011 CAV JUDGMENT(4) Whether this Court should issue a writ of mandamus to the State Government to allot the plots to the writapplicants.
12. The Supreme Court has always emphasized that however intensive the judicial scrutiny of a public authority's decision, it is not open to the courts to take the decisionmaking function out of the hands in which the Parliament has placed it and assume that function themselves. In a case where a range of rational and proportionate policy option is open to the decisionmaker, the decision which provides the best allocation of scarce resources is a question of social and economic evaluation. These are matters of political and administrative judgment, which the law leaves to those who are answerable to the makers of the law. They are not questions for a court of law.
13. Mandamus is one of the prerogative writs issued by the superior courts (High Court or Supreme Court), which is in the shape of command to the State, its instrumentality or its functionaries to compel them to perform their constitutional/ statutory/public duty.
14. A writ of mandamus is an extraordinary remedy to be invoked only upon special occasion and in exceptional circumstances. It is intended to supply deficiency in law. It cannot be granted merely for the asking but has to be obtained where there is no alternative, efficacious and adequate remedy. It cannot be used as an appeal against the decision of a court, tribunal or an authority exercising statutory power. It can only be issued as a last resort where the court is satisfied that without its aid there would be failure of justice.
15. Mandamus is an action or judicial proceeding of a civil nature extraordinary in the sense that it can be maintained only when there is Page 22 of 37 C/SCA/15201/2011 CAV JUDGMENT no other adequate remedy, prerogative in its character to the extent that the issue is discretionary, to enforce only clear legal rights, and to compel courts to take jurisdiction or proceed in the exercise of their jurisdiction, or to compel corporations, public and private, and public boards, commissions, or officers, to exercise their jurisdiction or discretion and to perform ministerial duties, which duties result from an office, trust, or station, and are clearly and peremptorily enjoined by law as absolute and official (P.R. Aiyar, Advanced Law Lexicon, (2005), Vol. III P. 2873.).
16. Mandamus is not a writ of right and is not granted as a matter of course (ex debito justitiae). Its grant or refusal is at the discretion of the court. A court may refuse mandamus unless it is shown that there is a clear legal right of the applicant or statutory duty of the respondent and there is no alternative remedy available to the applicant. (Union of India v. S.B. Vohra, (2004) 2 SCC 150).
17. The discretion of the court, however, is not arbitrary and it must be exercised fairly, reasonably and on sound and wellestablished legal principles.
18. The court, in the exercise of discretion, must take into account wide variety of circumstances. It must consider the facts of the case, the exigency which calls for the exercise of discretion, the consequences of granting or refusing the writ, the nature and extent of injury likely to ensue by the grant or refusal of the writ, etc. In short, courts discretion must be governed by considerations of public policy, public interest and public good.
19. Before an applicant could get a writ of mandamus or an order in Page 23 of 37 C/SCA/15201/2011 CAV JUDGMENT the nature of mandamus, he has to satisfy the court that the following conditions are fulfilled.
(a) The applicant has a legal right;
(b) The opposite party has a legal duty;
(c) The application is made in good faith;
(d) The applicant has no other alternative remedy; and
(e) The opposite party has refused relief, i.e. demand and refusal.
20. The duty of the court is to confine itself to the question of legality. Its concern should be:
1. Whether a decisionmaking authority exceeded its powers?
2. Committed an error of law.
3. Committed a breach of the rules of natural justice,
4. Reached a decision which no reasonable tribunal would have reached or,
5. Abused its powers.
Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:
(i) Illegality: This means the decisionmaker understand correctly the law that regulates his decisionmaking power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.Page 24 of 37 C/SCA/15201/2011 CAV JUDGMENT
(iii) Procedural impropriety.
21. Even if the High Court finds that the decision of the State Government is suffering from some illegality, the jurisdiction of the High Court in a writ petition under Article 226 of the Constitution of India is to remit the matter to the Authority for reconsideration rather than to substitute the decision of the competent Authority with that of its own. The Supreme Court in a judgment reported as (1994) 4 SCC 448 (State of Haryana Vs. Naresh Kumar Bali) was examining a question: as to whether there could be a direction to appoint a candidate, who sought appointment on compassionate ground. The Supreme Court held as under: "With regard to appointment on compassionate ground we have set out the law in Life Insurance Corpn. Of India Vs. Asha Ramchhandra Ambedkar (1994) 2 SCC 718. The same principle will clearly apply here. What the High Court failed to note is the post of an Inspector is a promotional post. The issuing a direction to appoint the respondent within three months when direct recruitment is not available, is unsupportable. The High Court could have merely directed consideration of the claim of the respondent in accordance with the rules. It cannot direct appointment. Such a direction does not fall within the scope of mandamus. Judicial review, it has been repeatedly emphasised, is directed against the decisionmaking process and not against the decision itself; and it is no part of the court's duty to exercise the power of the authorities itself. There is widespread misconception on the scope of interference in judicial review. The exercise of the extraordinary jurisdiction constitutionally conferred on the Apex Court under Article 142(1) of the Constitution can be of no guidance on the scope of Article 226."
22. I am not impressed by the submission as regards the 'indefeasible right' said to have been accrued in favour of the writapplicants for grant of land. In my opinion, it cannot be argued that the writapplicants have a "vested right" to claim allotment of the land.
23. 'Vested right' has been defined in Law Lexicon P. Ramanatha Page 25 of 37 C/SCA/15201/2011 CAV JUDGMENT Aiyar 3rd Edition as follows:
"Vested rights. Property rights.
The expression 'vested rights' means an absolute or indefeasible right. It is an immediate fixed right in present or future enjoyment in respect of property. The claim based on the vested right or settled expectation to obtain sanction cannot be set up against statutory provisions. It cannot be countenanced against public interest and conveniences which are sought to be served. Howrah Municipal Corpn. v. Ganges Rope Co. Ltd., (2004) 1 SCC 663, 680, para 37. [Howrah Municipal Corporation Act (58 of 1980), S. 175] A right is said to be vested when the right to enjoyment, present or prospective has become the property of some particular person or persons as a present interest independent of a contingency. It is a right which cannot be taken away without the consent of the owner. Such rights may arise from contract or statute and from the operation of law. Mohammadi Begam Sahiba, Bhopal v. Abdul Majidkhan, MLJ:QD (19611965) Vol I CI918: 1963 MPLJ 157: ILR (1962) M.P. 689 [Civil Procedure Code of Bhopal State, S. 49]"
24. Black's Law Dictionary Ninth Edition defines the word "vest" in the following manner: "vest", vb (15c) 1. To confer ownership (of property) upon a person. 2. To invest (a person) with the full title to property. 3. To give (a person) an immediate, fixed right of present or future enjoyment. 4. Hist. To put (a person) into possession of land by the ceremony of investiture.
25. The Apex Court had occasion to consider the concept of "vested right" in J.S. Yadav v. State of Uttar Pradesh and Anr, (2011) 6 SCC Page 26 of 37 C/SCA/15201/2011 CAV JUDGMENT 570 : (AIR 2011 SC (Supp) 659). In paragraphs 21 and 22 of the said judgment following was laid down:
"21. The word "vest" is normally used where an immediate fixed right in present or future enjoyment in respect of a property is created. With the long usage the said word "vest" has also acquired a meaning as "an absolute or indefeasible right". It had a "legitimate" or "settled expectation" to obtain right to enjoy the property etc. Such "settled expectation" can be rendered impossible of fulfillment due to change in law by the Legislature. Besides this, such a "settled expectation" or the socalled "vested right" cannot be countenanced against public interest and convenience which are sought to be served by amendment of the law. (Vide Howrah Municipal Corpn. v. Ganges Rope Co. Ltd. (2004) 1 SCC 663).
22. Thus, "vested right" is a right independent of any contingency. Such a right can arise from a contract, statute or by operation of law. A vested right can be taken away only if the law specifically or by necessary implication provide for such a course."
26. A person is said to have acquired a vested right where an immediate fixed right in present or future enjoyment in respect of a property is created. Mere expectancy of a future benefit is not a vested right. Contingent interest in property and anticipated continuance of existing laws does not constitute a vested right. The Petitioners by making an application did not acquire a vested right. By making an application they only became entitled for consideration of their application for grant of land.
27. "Legitimate expectation" has come up for consideration in several decisions. It is useful to refer to the judgment of the Apex Court in Madras City Wine Merchants' Association and Anr. v. State of T.N. and Anr., (1994) 5 SCC 509. Paragraphs 43, 44, 46, 47 and 48 : (1994 AIR SCW 3915, Paras 47, 48, 49, 51, 52, 53 and 54) of the said judgment which are relevant are quoted below:
Page 27 of 37 C/SCA/15201/2011 CAV JUDGMENT"43.We will briefly deal with the doctrine of legitimate expectation. It is not necessary to refer to large number of cases excepting the following few:
On this doctrine Clive Lewis in Judicial Remedies in Public Law at page 97 states thus:
"Decisions affecting legitimate expectations In the public law field, individuals may not have strictly enforceable rights but they may have legitimate expectations. Such expectations may stem either from a promise or a representation made by a public body, or from a proviso practice of a public body.
The promise of a hearing before a decision is taken may give rise to a legitimate expectation that a hearing will be given. A past practice of consulting before a decision is taken may give rise to an expectation of consultation before any future decision is taken. A promise to confer, or past practice of conferring a substantive benefit, may give rise to an expectation that the individual will be given a hearing before a decision is taken not to confer the benefit. The actual enjoyment of a benefit may create a legitimate expectation that the benefit will not be removed without the individual being given a hearing. On occasions, individuals seek to enforce the promise of expectation itself, by claiming that the substantive benefit be conferred. Decisions affecting such legitimate expectations are subject to judicial review."
44. In Council of Civil Service Unions v. Minister for the Civil Service, it is stated thus: (All ER pp.94344) 'But even where a person claiming some benefit or privilege has no legal right to it, as a matter of private law, he may have a legitimate expectation of receiving the benefit or privilege, and, if so, the courts will protect his expectation by judicial review as a matter of public law. This subject has been fully explained by Lord Diplock in O'Reilly v. Mackman, (1982) 3 All ER 1124 and I need not repeat what he has so recently said.
Legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue. Examples of the former type of expectation are Re. Liverpool Taxi Owners' Association (1972) 2 All ER 589, (1972) 2 QB 299 and AG of Hong Kong v. Ng Yuen Shiu, (1983) 2 All ER 346. (I agree with Lord Diplock's view, expressed in the speech in this appeal, that 'legitimate' is to be preferred to 'reasonable' in this context. I was responsible for using the word Page 28 of 37 C/SCA/15201/2011 CAV JUDGMENT 'reasonable' for the reason explained in Ng Yuen Shiu, but it was intended only to be exegetical of 'legitimate'.) An example of the latter in R v. Hull Prison Board of Visitors, ex p. St. Germain, (1979) 1 All ER 701, (1979) QB 425, approved by this House in O'Reilly v. Mackman, (1982) 3 All ER 1124."
46.Three cases of this Court may now be seen. In State of H.P. v. Kailash Chand Mahajan, 1992 Supp (2) SCC 351 : (AIR 1992 SC 1277, pp. 13001301, paras 81 and 82) in a judgment to which one of us was a party it was stated thus: (SCC pp. 38688, paras 8687) "It might be urged by the tenure of appointment there is a right to continue; the legitimate expectation has come to be interfered with. In a matter of this kind, as to whether legitimate expectation could be pleaded is a moot point. However, we will now refer to Wade's Administrative Law (6th edn.) wherein it is stated at pages 52021, as under:
'Legitimate expectation: positive effect.The classic situation in which the principles of natural justice apply is where some legal right, liberty or interest is affected, for instance where a building is demolished or an officeholder is dismissed or a trader's licence is revoked. But good administration demands their observance in other situations also, where the citizen may legitimately expect to be treated fairly. As Lord Bridge has explained: Westminster CC, (1986) AC 668 at 692.
The Courts have developed a relatively novel doctrine in public law that a duty of consultation may arise from a legitimate expectation of consultation aroused either by a promise or by an established practice of consultation.' In a recent case, in dealing with legitimate expectation in R v. Ministry of Agriculture, Fisheries and Food, ex p Jaderow Ltd., (1991) 1 All ER 41, it has been observed at page 68:
"Question II: Legitimate expectation: It should be pointed out in this regard that, under the powers reserved to the member States by Article 5(2) of Regulation 170 of 1983, fishing activities could be made subject to the grant of licences which, by their nature, are subject to temporal limits and to various conditions. Furthermore, the introduction of the quota system was only one event amongst others in the evolution of the fishing industry, which is characterised by instability and continuous changes in the situation due to a series of events such as the extensions, in 1976, of fishing areas to 200 miles from certain coasts of the Community, the Page 29 of 37 C/SCA/15201/2011 CAV JUDGMENT necessity to adopt measures for the conservation of fishery resources, which was dealt with at the international level by the introduction of total allowable catches, the arguments about the distribution amongst the member States of the total allowable catches available to the Community, which were finally distributed on the basis of a reference period which ran from 1973 to 1978 but Which is reconsidered every year.
In those circumstances, operators in the fishing industry were not justified in taking the view that the Community rules precluded the making of any changes to the conditions laid down by national legislation or practice for the grant of licences to fish against national quotas as the adoption of new conditions compatible with Community law.
Consequently, the answer to this question must be that community law as it now does not preclude legislation or a practice of a memberState whereby a new condition not previously stipulated is laid down for the grant of licences to fish against national quotas."
Thus, it will be clear even legitimate expectation cannot preclude legislation."
47. In Food Corpn. of India v. Kamdhenu Cattle Feed Industries (1993) 1 SCC 71 : (AIR 1993 SC 1601, p. 1604, para 8) this Court observed thus (SCC p.76, para 8) "The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this matter would satisfy the requirement of nonarbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent."
Page 30 of 37 C/SCA/15201/2011 CAV JUDGMENT48. In Union of India v. Hindustan Development Corporation (AIR 1994 SC 988, p. 1015, para 29), this Court observed thus:
(SCC pp.54041, para 29) "It has to be noticed that the concept of legitimate expectation in administrative law has now, undoubtedly, gained sufficient importance. It is stated that "Legitimate expectation" is the latest recruit to a long list of concepts fashioned by the courts for the review of administrative action and this creation takes its place beside such principles as the rules of natural justice, unreasonableness, the fiduciary duty of local authorities and 'in future, perhaps, the principle of proportionality.' A passage in Administrative Law, 6th Edn., by H.W.R. Wade page 424 reads thus :
'These are revealing decisions. They show that the courts now expect Government departments to honour their published statements or else to treat the citizen with the fullest personal consideration. Unfairness in the form of unreasonableness here comes close to unfairness in the form of violation of natural justice, and the doctrine of legitimate expectation can operate in both contexts. It is obvious, furthermore, that this principle of substantive, as opposed to procedural, fairness may undermine some of the established rules about estoppel and misleading advice, which tend to operate unfairly. Lord Scarman has stated emphatically that unfairness in the purported exercise of a power can amount to an abuse or excess of power, and this seems likely to develop into an important general doctrine.' Another passage at page 522 in the above book reads thus :
"It was in fact for the purpose of restricting the right to be heard that 'legitimate expectation' was introduced into the law. It made its rust appearance in a case where alien students of 'scientololgy' were refused extension of their entry permits as an act of policy by the Home Secretary, who had announced that no discretionary benefits would be granted to this sect. The Court of Appeal held that they had no legitimate expectation of extension beyond the permitted time, and so no right to a hearing, though revocation of their permits within that time would have been contrary to legitimate expectation. Official statements of policy, therefore, may cancel legitimate expectation, just as they may create it, as seen above. In a different context where carhire drivers had habitually offended against airport byelaws, with many convictions and unpaid fines, it was held that they had no legitimate expectation of being heard before being banned by the airport authority.Page 31 of 37 C/SCA/15201/2011 CAV JUDGMENT
There is some ambiguity in the dicta about legitimate expectation, which may mean either expectation of a fair hearing or expectation of the licence or other benefit which is being sought. But the result is the same in either case; absence of legitimate expectation will absolve the public authority from affording a hearing .
(Emphasis supplied) Again, at pages 5657 it is observed thus : (SCC p.547, para 33) : (Pp. 10191020, paras 3334 of AIR) "A case of legitimate expectation would arise when a body by representation or by past practice aroused expectation which it would be within its powers to fulfill. The protection is limited to that extent and a judicial review can be within those limits. But as discussed above a person who bases his claim on the doctrine of legitimate expectations, in the first instance, must satisfy that there is a foundation and thus has locus standi to make such a claim. In considering the same several factors which give rise to such legitimate expectation must be present. The decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public interest. If it is a question of policy, even by way of change of old policy, the courts cannot interfere with a decision. In a given case whether there are such facts and circumstances giving rise to a legitimate expectation, it would primarily be a question of fact. If these tests are satisfied and if the court is satisfied that a case of legitimate expectation is made but then the next question would be whether failure to give an opportunity of hearing before the decision affecting such legitimate expectation is taken, has resulted in failure of justice and whether on that ground the decision should be quashed. If that be so then what should be the relief is again a matter which depends on several factors."
(Emphasis supplied) Again at pages 5758 it is observed thus : (SCC pp.54849,para 35) : (pp. 102021, para 36 of AIR) "Legitimate expectations may come in various forms and owe their existence to different kind of circumstances and it is not possible to give an exhaustive list in the context of vast and fast expansion of the Governmental activities. They shift and change so fast that the start of our list would be absolute before we reached the middle. By and large they arise in cases of promotions which are in normal course expected, though no guaranteed by way of a statutory right, in cases of contracts, distribution of largess by the Government and in somewhat similar situations. For instance in cases of discretionary grant of licences, permits of the like, carries with it a reasonable expectation, though not a legal right to renewal or non Page 32 of 37 C/SCA/15201/2011 CAV JUDGMENT revocation, but to summarily disappoint that expectation may be seen as unfair without the expectant person being heard. But there again the court has to see whether it was done as a policy or in the public interest either by way of GO, rule or by way of a legislation. If that be so, a decision delaying a legitimate expectation based on such grounds does not qualify for interference unless in a given case, the decision or action taken amounts to an abuse of power. Therefore the limitation is extremely confined and if the according of natural justice does not condition the exercise of the power, the concept of legitimate expectation can have no role to play and the court must not usurp the discretion of the public authority which is empowered to take the decisions under law and the court is expected to apply an objective standard which leaves to the deciding authority the full range of choice watch the legislature is presumed to have intended. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly and objectively, the court will not interfere on the ground of procedural fairness to a person whose interest based on legitimate expectation might be affected. For instance if an authority who has full discretion to grant a licence and if he prefers an existing licence holder to a new applicant, the decision cannot be interfered with on the ground of legitimate expectation entertained by the new applicant applying the principles of natural justice. It can therefore be seen that legitimate expectation can at the most be one of the grounds which may give rise to judicial review but the granting of relief is very much limited. It would thus appear that there are stronger reasons as to why the legitimate expectation should not be substantively protected than the reasons as to why it should be protected. In other words such a legal obligation exists whenever the case supporting the same in terms of legal principles of different sorts, is stronger than the case against it. As observed in Attorney General for New South Wales' case (1990) 64 Aust LJR 327.
" To strike down the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be to set the courts adrift on a featureless sea of pragmatism. Moreover, the notion of a legitimate expectation (falling short of a legal right) is too nebulous to form a basis for invalidating the exercise of a power when its exercise otherwise accords with law."
If a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power of violation of principles of natural justice, the same can be questioned on the wellknown grounds attracting Article 14 but a claim based on mere legitimate Page 33 of 37 C/SCA/15201/2011 CAV JUDGMENT expectation without anything more cannot ipso facto give a right to invoke these principles ."
(Emphasis supplied) For the above it is clear that legitimate expectation may arise
(a) if there is an express promise given by a public authority; or
(b) because of the existence of a regular practice which the claimant can reasonably expect to continue ;
(c) Such an expectation must be reasonable.
However, if there is a change in policy or in public interest the position is altered by a rule or legislation, no question of legitimate expectation would arise."
28. In the above case also the Apex Court had laid down that if there is a change in the policy or in public interest the position is altered by a rule or legislation, no question of legitimate expectation would arise.
29. A Three Judges' bench in P.T.R. Exports (Madras) Pvt. Ltd. and Ors. v. Union of India and Ors. (1996) 5 SCC 268 : (AIR 1996 SC 3461), had the occasion to consider the concept of "legitimate expectation" in context of change of policy. In the above case, the petitioners before the Apex Court were exporters of readymade garments to several countries. The Government of India, Ministry of Commerce had evolved the Export and Import policy in the year 1992
93. The New export policy w.e.f. 01/1/1996 was introduced withdrawing the previous policy. The petitioners challenged the change of policy in the High Court. The challenge was negatived by the High Court. Before the Apex Court, the Special Leave Petitions were filed. In the above case, the Apex Court held that the applicant had no vested right in respect of the import and export licences in terms of the policies in force on the date of making his application. It was further held that the Government is not barred by the promises or of legitimate expectations from evolving new policy. Following was laid down in Page 34 of 37 C/SCA/15201/2011 CAV JUDGMENT paragraphs 3, 4 and 5 of the said judgment which are quoted below:
"3. In the light of the above policy question emerges whether the Government is bound by the previous policy of whether it can revise its policy in view of the changed potential foreign markets and the need for earning foreign exchange? It is true that in a given set of facts, the Government may in the appropriate case be hound by the doctrine of promissory estoppel evolved in Union of India v. Indo Afghan Agencies Ltd. (1968) 2 SCR 366 : (AIR 1968 SC 718). But the question revolves upon the validity of the withdrawal of the previous policy and introduction of the new policy. The doctrine of legitimate expectations again requires to be angulated thus :
whether it was revised by a policy in the public interest or the decision is based upon any abuse of the power? The power to lay policy by executive decision or by legislation includes power to withdraw the same unless in the former case, it is by mala fide exercise of power or the decision or action taken is in abuse of power. The doctrine of legitimate expectation plays no role when the appropriate authority is empowered to take a decision by an executive policy or under law. The Court leaves the authority to decide its full range of choice within the executive or legislative power. In matters of economic policy, it is a settled law that the Court gives the large leeway to the executive and the legislature. Granting licences for import or export is by executive or legislative policy. Government would take diverse factors for formulating the policy for import or export of the goods granting relatively greater priorities to various items in the overall larger interest of the economy of the country. It is, therefore, by exercise of the power given to the executive or as the case may be, the legislature is at liberty to evolve such policies.
4. An applicant has no vested right to have export or import licences in terms of the policies in force at the date of his making application. For obvious reasons, granting of licences depends upon the policy prevailing on the date of the grant of the licence or permit. The authority concerned may be in a better position to have the overall picture of diverse factors to grant permit or refuse to grant permission to import or export goods. The decision, therefore, would be taken from diverse economic perspectives which the executive is in a better informed position unless, as we have stated earlier, the refusal is mala fide or is an abuse of power in which event it is for the applicant to plead and prove to the satisfaction of the Court that the refusal was vitiated by the above factors.
5. It would, therefore, be clear that grant of licence depends upon the policy prevailing as on the date of the grant of the licence. The Court, therefore, would not bind the Government with a policy Page 35 of 37 C/SCA/15201/2011 CAV JUDGMENT which was existing on the date of application as per previous policy.
A prior decision would not bind the Government for all times to come. When the Government are satisfied that change in the policy was necessary in the public interest, it would be entitled to revise the policy and lay down new policy. The Court, therefore, would prefer to allow free play to the Government to evolve fiscal policy in the public interest and to act upon the same. Equally, the Government is left free to determine priorities in the matters of allocations or allotments or utilisation of its finances in the public interest. It is equally entitled, therefore, to issue or withdraw or modify the export or import policy in accordance with the scheme evolved. We, therefore, hold that the petitioners have no vested or accrued right for the issuance of permits on the MEE or NQE, nor the Government is bound by its previous policy. It would be open to the Government to evolve the new schemes and the petitioners would get their legitimate expectations accomplished in accordance with either of the two schemes subject to their satisfying the conditions required in the scheme. The High Court, therefore, was right in its conclusion that the Government are not barred by the promises or legitimate expectations from evolving new policy in the impugned notification."
30. Even so, it has been held under the English law that the decision maker's freedom to change the policy in public interest, cannot be fettered by the application of the principle of substantive legitimate expectation. In Re Findlay, 1985 AC 318 the House of Lords rejected the plea that the altered policy relating to parole for certain categories of prisoners required prior consultation with the prisoner. Lord Scarman observed:
"But what was their legitimate expectation.? Given the substance and purpose of the legislative provisions governing parole, the most that a convicted prisoner can legitimately expect is that his case be examined individually in the light of whatever policy the Secretary of State sees fit to adopt provided always that the adopted policy is a lawful exercise of the discretion conferred upon him by the statute. Any other view would entail the conclusion that the unfettered discretion conferred by statute upon the Minister can in some cases be restricted so as to hamper or even to prevent changes of policy."
31. To a like effect are the observations of Lord Diplock in Hughes v.
Page 36 of 37 C/SCA/15201/2011 CAV JUDGMENTDepartment of Health and Social Security, 1985 AC 778 (788):
"Administrative policies may change with changing circumstances, including changes in the political complexion of Governments. The liberty to make such changes is something that is inherent in very constitutional form of Government."
32. In my opinion, the principles of "Legitimate Expectation" is also not applicable to the present case.
33. It appears from the stance of the State Government that as on date there is no policy to allot plots to the employees. The policy seems to be to identify a particular parcel of land, construct a multistoried building and thereafter, allot flats to the eligible employees. If such is the policy of the State Government prevailing as on date, then there is no question of issuing any writ of mandamus or other directions to the respondents to even reconsider the issue with regard to the allotment of plots.
34. In the overall view of the matter, I am not at all convinced with the case put up by the writapplicants for allotment of plots.
It is clarified that it shall be open for the writapplicants to apply a fresh with the authority concerned in accordance with the Government Policy prevailing as on date as regards providing of residential accommodation to the employees. If any such application is preferred by any of the writapplicant, then the authority concerned shall look into the same in accordance with law and take an appropriate decision in that regard at the earliest.
35. In the result, all the writapplications fail and are hereby rejected.
(J. B. PARDIWALA, J) aruna Page 37 of 37