Madhya Pradesh High Court
Motiram Mandhyani And Anr. vs State Of Madhya Pradesh And Anr. on 17 March, 2003
Equivalent citations: AIR2004MP82, AIR 2004 MADHYA PRADESH 82
Author: Dipak Misra
Bench: Dipak Misra, A.K. Shrivastava
JUDGMENT Dipak Misra, J.
1. In this batch of appeals preferred under Clause 10 of the Letters Patent, the appellants have called in question the defensibility and the legal propriety of the composite order passed by the learned single Judge in a bunch of writ petitions as well as the sustainability of a Singular order passed separately. It is apropos to state here the learned single Judge disposed of eight writ petitions by a common order on the base that common questions of law with slight variation of facts arose for determination and hence, they deserved to be dealt with by a common order. As in another writ petition, the factual matrix was depicted in a different manner he passed a separate order. We may state at the outset that all the writ petitioners have not preferred appeals but only present appellants have invoked the jurisdiction of this Court taking recourse to intra-Court appeal.
2. In different appeals facts have been adumbrated in different manners but essentially the facts which have been depicted in the impugned order, barring the separate order, there is no noticeable variance in their basic features and, therefore, we shall state the facts as have been exposited in the orders.
3. Jabalpur Development Authority (hereinafter referred to as 'the JDA') got an advertisement published in various newspapers on 19-3-1991 inviting applications from educational institutions for allotment of the land in its various schemes. Pursuant to the said advertisement, the appellants submitted their applications. The appellant, namely, Guru Gobind Singh Educational Society was allotted 1,24,630 sq. ft. of land for construction of high school. Appellant-Motiram Madhiyani, President, Sindhu Samaj (in LPA No. 186/2000) was allotted 1,24,750 sq. ft. for construction of high school and a college. Shanti Nagar Bal Vikas Shiksha Samiti was allotted 45,600 sq. ft. for the purpose of constructing a middle school. Apart from the aforesaid allotment, Shri Ram Mandir Shiksha Samiti was allotted 60,000 sq. ft. initially which was later on enhanced to 1,55,000 sq. ft., Ranjhi Vivekanand Shiksha Vikas Samiti was allotted 13,993 sq. ft. and Jabalpur Thoak Vastra Vikreta was allotted 93,670 sq. ft. and Maharashtra Samaj was allotted 11,700 sq. ft.
4. According to the terms of allotment, the allottees were allowed to make construction over 40% of the area allotted in their favour and they were required to pay a premium of 10 rupees per sq, ft. limited to the area over which they had been allowed to make constructions. The further obligation the allottees were required to fulfil was to make payment of 50% of the premium amount within a fortnight from the date of allotment i.e. 31-7-1991 except in the case of Sindhu Samaj which was given time till 15-9-1991. The balance amount pertaining to premium was to be deposited in six months instalments. Sindhu Samaj and Shanti Nagar Bal Vikas Shiksha Samiti had cleared the full premium that was to be paid by them. Certain allottees had not paid premium within the time stipulated but paid later on. Some allottees paid a partial sum towards the premium but did not make the full payment. It is relevant to state here Guru Gobind Singh Educational Society had made the payment of premium amount of Rs. 2,49,260/- on 13-8-1991 and had not made any payment thereafter.
5. According to the writ petitioners, the State Government by its order dated 27-9-1994 constituted a one man committee headed by Mr. G. Jagathapathi the former Chief Secretary of the State of Madhya Pradesh for probing into the matter relating to question of allotment of land made by the Municipal Corporations/Municipality/Special Area Development Authority/Town Development Authority, Town Improvement Trust and Madhya Pradesh Housing Board. In view of the decision of the State Government, the Committee dwelled upon the issue relating to allotments made in favour of the writ petitioners. The Committee found that the JDA instead of considering the prayer of the writ petitioners for allotment of land by itself had constituted a sub-committee which was impermissible. The Committee further arrived at the conclusion that the JDA had determined the premium @ 10 per sq. ft. and that too for 40% of the total area allotted in favour of the allottees as a consequence of which the JDA had sustained a loss of Rs. 4,06,57,107/- on premium. With regard to the fixation of ground rent, the Committee was of the unequivocal opinion, that the same was on the lower side and such fixation has put the authority to loss of Rs. 8,13,062/- per year. It is also perceptible from the report of the Committee that the then Chairman of the JDA had acted as if the authority was consisting of the Chairman alone. The Committee further observed that the decision of the sub-committee for allotment of land in favour of the writ petitioners was not placed before the JDA for ratification at any stage.
6. As the facts further get unfolded, after receipt of the report of the Committee, the JDA issued notices to the writ petitioners stating therein that the allotments made in their favour were illegal and void as the same contravened Rules 19 and 20 of Madhya Pradesh Nagar Tatha Gram Nivesh Vikasit Bhoomiyo, Griho, Bhavno Tatha Anya Sanrachaon Ka Vyayan Niyam, 1975 (hereinafter referred to as 'the Rules'). It was stated in the show cause notice that under Rule 19 of the Rules, the land could be allotted only with the previous approval of the State Government but in their cases, there had been no prior approval from the State Government. It has been further pointed out that the JDA had sustained loss on the component of premium and also due to charging of premium in respect of 40% of the area allocated in their favour. After affording an opportunity of hearing to the parties, the allotments in their favour were cancelled and they were asked to take back the amount deposited by them. Because of this cancellation, the appellants invoked the extraordinary jurisdiction of this Court assailing the action taken by the JDA. It is apposite to state here that in the case of Maharashtra Samaj, the lease deed which had been executed as sought to be cancelled.
7. The order passed in W. P. No. 1367/96 has given rise to filing of LPA No. 66/2000. We think it condign to state the facts of that case separately as the factual matrix of the aforesaid writ petition is slightly different. The petitioner-Maharashtra Samaj, Jabalpur in pursuance of the advertisement filed an application for allotment of land, and 11,700 sq. ft. in Scheme No. 11 was allotted to it for construction of a Community Hall. A lease deed was executed by the authority on 28-5-1992. Object for granting the land on lease to the petitioner on concessional rate, as evincible from the lease deed, was to provide amenities to the local residents and the institution. The lease deed further provides that in case the lessor required for its use the building constructed on the demised land, the same shall be made available to it without any fee on preferential basis. It further provides that in no case construction, beyond an area of 40% of the demised land would be made and rest of the land would be kept open which shall be in possession of the petitioner. Vacant land was to be used for plantation, play-ground or horticulture. The land was delivered in favour of the petitioner on 26-6-1992. Premium of the land has been fixed at the rate of Rs. 10 per sq. ft. and the petitioner was required to pay the same in respect of 40% of the demised land. The petitioner paid a sum of Rs. 46,800/- as premium. Ground rent was fixed at the rate of Rs. 936/-. According to the petitioner who is the appellant before us, as per the conditions of the grant of lease it Was required to develop a road junction known as 'Sneh Nagar Chauk' and the petitioner applied for development and the respondent authority by its letter dated 2-1-1991 accepted the proposal and petitioner was informed that the same could be done in accordance with the map approved by the authority. For the purpose of development of the junction" the petitioner had decided to instal a statue of Chhatrapati Shivaji and to make provision for a small garden. However, on further examination, it was found that the installation of statue and the development of junction would create traffic-hazards and hence, the petitioner was requested by the authorities to select any other place. It was pleaded that the Dy. Development Commissioner by its letter dated 12-7-1993 entered into correspondence with the State Government that the petitioner had asked for installation of statue of Chhatrapati Shivaji at 'Sneh Nagar Junction' which was declined on the ground of its unsuitability and thereafter the petitioner had proposed for installation of statue at the junction of Station Road and Shastri Bridge. The State Government by its letter dated; 8-7-1993 communicated to the Collector about the State Government's approval for installation of the statute at the junction of the Station Road and Shastri Bridge on the condition that entire expenditure on preparation and installation of the statue shall be borne by the petitioner and the statue shall be in accordance with the photograph submitted. It was further made clear that no expenses would be incurred by the State Government either on preparation or installation of the statute. It is put forth by the writ petitioner that the petitioner spent Rs. 4,00,000.00 and the Governor of the State was invited to unveil the same. Apart from the further expenses, an amount of Rs. 61,539/- was also spent in filling the land and a sum of Rs. 7,305/- was spent for planting trees on the boundaries of the demised land.
8. Before the learned single Judge, it was contended that the Committee constituted by the State Government was absolutely illegal inasmuch as the State Government has no authority to constitute any Committee in relation to the allotment of land by the JDA and as a necessary corollary the consequential action taken on the basis of the report submitted by the said Committee is sensitively susceptible; that the Committee was constituted only to look into the illegality or otherwise in respect of the allotments made between the period March, 1990 to December, 1992 was reeked with mala fide inasmuch as during the said period Bhartiya Janata Party was in power in the State; that there has been no violation of Rule 19 which envisages that prior approval should be obtained as the factual matrix would clearly reveal that the State Government by order dated 28-8-1986 by a general prescription had authorised the JDA to make settlement on 'no profit no loss basis' for public educational and social institutions; that the Jagatpati Committee which was empowered to conduct an inquiry did not afford an opportunity of being heard to the petitioners though their rights were going to be infringed and affected and thus there had been flagrant infraction and violation of the principles of natural justice; that once land had been allotted in favour of the petitioners who are public cause oriented institutions, the same cannot be cancelled on the teeth of promissory estoppel; and that the lease deed already executed in favour of one of the writ petitioners could not have been cancelled on general grounds without pointing out the breach of conditions of the lease deed. The learned single Judge did not find any substance in any of the aforesaid contentions raised by the writ petitioners before him and accordingly dismissed the writ petitions.
9. We have heard Mr. N. S Kale, learned Senior Counsel with Mr. Abhijit Bhowmik, Mr. V. S. Shroti, learned Senior Counsel along with Mr. Ashish Shroti, and Mr. Adarsh Muni Trivedi, learned counsel for the appellants and Mr. R. "S. Jha, learned Deputy Advocate General for the State, Mr. Naman Nagrath for the JDA.
10. Assailing the order passed by the learned single Judge, the learned counsel for the appellants raised the following contentions :
(a) The Constitution of one man committee by the State Government to probe and penetrate into the affairs of allotment of JDA is without competence and the source of power being non-existent in the statute, administrative action of this nature cannot be given the stamp of approval. Once the report of the Committee is treated as null and void being stripped of validity, the cancellation which is founded oh the said report has to fall as a pack of cards on the elementary principle that when infrastructure collapses the super-structure is bound to founder.
(b) Assuming the Committee has been lawfully constituted, the report of the Committee has to be totally ignored and not to be relied upon as the Committee has arrived at the conclusions without affording an opportunity of hearing to the appellants who were the real aggrieved persons. The aforesaid action, ex facie, reveals that there has been ostracization of the doctrine of audi alteram partem which consequentially makes the orders of cancellation utterly defenceless.
(c) The JDA was directed by the State Government to proceed for cancellation of the allotment and there being a mandate by the State Government, the JDA which is a statutory authority abdicated or abandoned its own power and discretion and issued a show cause in a most perfunctory and mechanical manner only to complete the abortive rithal and, therefore, there has been an exhibition of adherence to the principles of natural justice by the JDA, though as an actual fact it had from the very beginning totally thrown its power and discretion to the wings and, therefore, such display of doing justice is nothing but a deception and pretence in law.
(d) The stand taken that there has been violation of Rules 19 and 20 is totally devoid of any substance as a special order was issued on 20-8-1986 conferring general powers and once a special order of this nature is issued by the State Government, it tantamounts to compliance of Rule 19 in its effectuality and, therefore, an individual approval as required under Rule 19 is not a pre-requisite.
(e) The finding given by the learned single Judge that there has been no deliberation with regard to the no profit no lose spectrum is wholly erroneous as the JDA was the best Judge and had acted bona fide to reach at the relevant conclusions in that regard.
(f) The appellants have deposited a large sum of money with the JDA and the JDA having accepted the same and the appellants having taken steps to meaningfully utilize the land allotted, the order of cancellation is hit by the principles of promissory estoppel.
(g) The report submitted by the Jagathpathi Committee is an exposition of certain comments which are untrue, individualistic and in a way harsh without any substratum and, therefore, it should not be treated as the Bible for visiting the appellants with the order of cancellation.
(h) The report of Jagathpathi Committee was not made available to the allottees and, therefore, they could not defend themselves properly by putting forth their stand in a proper and acceptable manner and, therefore, the order of cancellation suffers from procedural ultra vires, prejudice reigning unperturbed.
(i) The lease deed having been executed in favour of the petitioner, the same could not have been rescinded by the authority in the absence of breach of any condition stipulated in the lease deed;
(j) There is no illegality in execution of the lease deed and the learned single Judge has fallen into error by expressing the opinion that there had been violation of Rule 20 of the Rules though as an actual fact there has been due compliance with the said Rule when the Community Centre has been established.
(k) There was no necessity to show 'no profit no loss' by precise mathematical process as the law cannot be totally exact in that regard.
(l) The object of the Act is for development and that being the avowed purpose of the statute, by grant of lease on concessional rate which is meant for charitable purposes, the said act essentially sub-serves the requisite purpose of the Act. In fact, the petitioners are assisting in the performance of obligations of a welfare State and if the entire action is scrutinised in that backdrop the JDA had not committed any illegality by charging for 40% of the land when the authority very well knew that the construction would be on 40%.
(m) The word used 'under Rule 20' 'ordinarily' does not make it mandatory but on the contrary it engulfs various concepts of wide magnitude and a narrow construction would defeat the purpose of the Rule.
(n) There should be presumption in favour of action by the public authority and the petitioner is not required to prove it by every decimal and the State Government as well as the JDA in the cases at hand has acted with the zeal and spirit of a mercenary and in a welfare State with the change of Government it cannot unsettle the grants made by the previous Government by taking recourse to various deceptive devices and applying the doctrine of Class-room arithmetics.
10-A. Mr. R. S. Jha and Mr. Naman Nagrath, learned counsel appearing for the respondents, in their turn, submitted as under :--
(i) The State Government enjoys the power of constituting any committee or commission to scan and scrutinize the performance or working of the JDA and when the enormous irregularities came to the knowledge of the State Government, it had thought it appropriate to constitute a Committee and that being permissible in law, the Constitution cannot be found fault with.
(ii) The Committee was the fact finding authority with regard to the working of the JDA and how the JDA had functioned while issuing the orders of allotment and, more so, when the Committee was appointed to probe into the various allotments pertaining to many a municipal corporation, municipality and other authorities, it was supposed to find out the irregularities and illegalities and at that juncture affording of opportunity of hearing by the Committee to the allottees/beneficiaries does not arise and the doctrine of natural justice cannot be extended to that extent. The record of the JDA revealed What it was supposed to reveal and the beneficiaries could not have improved the same and the compliance would have been an exercise in futility.
(iii) The JDA did not abdicate its power or discretion but issued a notice on the basis of the report submitted by the Committee and it was open to the allottees to dislodge what was stated in the show-cause and that having not been done it is futile to contend that the JDA had abdicated its authority. Had the JDA found something substantial in the show-cause submitted by the allottees, the matter would have been wholly different.
(iv) There has been violation of Rules 19 & 20 inasmuch as the JDA did not seek prior approval as mandated in Rule 19 and none of the institutions who had been allotted come within the framework of Rule 20.
(v) The reliance placed on the letter-Circular dated 20-8-1986 is of no assistance to the petitioner as the said circular cannot override a statutory rule and when a mass-scale allotments are made, the circular cannot be taken aid of.
(vi) Assuming the circular renders assistance and can be dependent upon as a saviour then also the conditions precedent engrafted in the said circular having not been followed and no exercise having been done to determine the price component to arrive at the conclusion of 'no profit no loss', the action of the JDA is also in dissonance with the requirement of the circular which consequently makes the allotments totally improper, unjust and illegal.
(vii) The stand that a concluded agreement could not be cancelled is without any substance when the agreement has been executed in flagrant violation of the Rules and procedure. The action will not be in the realm of law of contract but in the field of public policy.
(viii) The stand that the petitioners were performing their duties that of a welfare State is totally inconsequential when their basic right is tainted.
(ix) The contention put forth that the JDA having not supplied the copy of the G. Jagathpathi report along with the show-cause and also thereafter on such a demand having been made there has been guillotining of the principles of natural justice is absolutely untenable inasmuch as no prejudice has been caused and when the report has been supplied in course of the litigation, the onus is cast on the petitioners to show how such non-supply has caused real prejudice to them.
11. We may state at this juncture that we have enumerated the contentions of the learned counsel for the parties in extenso as the matter was debated from many angles, but while dealing with the contentions, we would deal with them in various sets or compartments so one may encompass the other and which may lead to inevitable, yet acceptable, overlapping.
12. First we shall proceed to deal with the contention whether the State Government could have constituted a Committee of this nature. It has been urged before us that due to change of Government, out of attitude of asperity the whole action has been actuated. It is contended that a policy decision of one Government cannot be totally metamorphosed or transmuted to put every thing done to naught and if that is allowed to be done there would be chaos, uncertainty and total flexibility destroying the basic fabric of a law abiding and law oriented civilized society. The aforesaid submission may sound a dilactic one from the pulpit but on certain occasions it has its own validity and propriety. However, it cannot be said with absolute certitude and complete indubitability that in all facts and circumstances it is inexceptionable. There can be facts and circumstances which may warrant a probe, an inquiry, a scrutiny, a scanning and a vis-ceration. If a large scale abuse of power surfaces and the competent authorities think it appropriate, there cannot be a bar to have a closer probe unless it is forbidden in law. One facet relates to the realm of mala fide or to some extent ideological acrimony and on the other hand it pertains to the legal competence. As far as the present case is concerned, nothing has been put forth to show any kind of mala fides and hence, we have not been able to pursuade ourselves to accept the contention, though urged with vehemence, that with the change of Government, a particular stand has been taken. Presently, we shall proceed to deal with the legal facet of it. In this context, we may profitably refer to the provision contained in Section 76-BB of the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 which reads as under :--
"76-BB. Enquiry by the State Government.-- The State Government on its own motion, authorise a person by order in writing to hold an enquiry into the constitution, working and financial conditions of a Development Authority.
(2) The person authorised under Sub-Section (1) shall for the purpose of an enquiry under this section, have the following powers, namely :--
(a) he shall at all times have free access to the books, accounts and documents belonging to the Development Authority and may summon any person in possession and responsible for the custody of such books, accounts and documents to produce the same;
(b) he may summon any person who he has reason to believe has knowledge of any of the affairs of the Development Authority to appear before him and may examine such person on oath.
(3) The person authorised under Sub-Section (1) shall submit his report indicating his findings to the State Government within the time specified in the order under Sub-section (1)."
13. On a bare reading of the aforesaid provision, it is graphically clear that the State Government on its own motion can authorise a person in writing to hold an inquiry into the constitution, working and financial condition of a Development Authority. Section 38 of the Act clearly stipulates that JDA is a statutory authority. Section 50 of the Act casts a duty on the JDA to prepare a town development scheme and make allotment of the land. Sections 72 and 73 are also worth noting. They read as under :
"72. State Government's power of supervision and control.-- The State Government shall have power of superintendence and control over the acts and proceedings of the officers appointed under Section 3 and the authorities constituted under this Act."
"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."
14. Under Section 76-BB three terms have been used, namely, 'constitution, 'working' and 'financial conditions'. The term 'working' would include the pattern of working and manner of working and the acts done and such other facets that are relatable or connectable with the JDA. Allocation or allotment of land would irrefragably would come within the ambit arid sweep of the term 'working'. When a successor State Government comes to know of certain facts, it can always authorise a person to hold an inquiry into the working as the law so empowers. In view of this, the colossal complaint made with regard to constitution of G. Jagathpathi Committee to inquire into the factum of allotment and execution of lease deed by JDA is sans substance.
15. The next ground of attack is that G. Jagathpathi Committee is a statutory Committee comparable to a quasi-judicial authority and once a quasi-judicial authority is appointed, it is under an obligation to offer an opportunity of hearing to the beneficiaries whose rights are affected and that having not been done, the report submitted by it is absolutely vitiated and deserves to be ignored.
16. Mr. Shroti, learned counsel to bolster his submission has placed reliance on Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar, AIR 1963 SC 786, City Corner v. Personal Asstt. to Collector and Addl. District Magistrate, Nellore, AIR 1976 SC 143, and The Scheduled Caste and Weaker Section Welfare Association (Regd.) v. State of Karnataka, AIR 1991 SC 1117.
17. To appreciate the aforesaid submission, we have carefully perused he aforesaid decisions. In our considered opinion, the contention set forth is without any substratum inasmuch as the first part of the syllogism is based on an erroneous premise. The State Government in exercise of its power had appointed a Committee to conduct an inquiry in regard to the working of the JDA. Causing of an inquiry into the affairs of the JDA, is an internal affair. It is a fact finding inquiry. G. Jagathpathi Committee was not established to rescind the leases arid to cancel the allotment or fix a premium but it was constituted to find out whether any illegality or irregularity had been committed. It was not given the authority to adjudicate any right. It also cannot be conferred the status of an administrative authority that passes an order as a result of which a right of a party is affected. To give an example when a particular contractor or licencee is blacklisted by an administrative order passed by an administrative authority, the principles of natural justice are attracted. To allow the principles of natural justice, to enter or penetrate into the preliminary fact finding machinery would allow the concept of audi alteram partem function as an unruly horse. In this context, we may profitably refer to the decision rendered in the case of Scheduled Castes and Weaker Section Welfare Society (Supra) wherein a two-Judge Bench of the Apex Court has held as under :--
"15. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power and the rule of natural justice operates in areas not covered by any law validly made. What particular rule of natural justice should apply to a given case must depend to an extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the body of persons appointed for that purpose. It is only where there is nothing in the statute to actually prohibit the giving of an opportunity to be heard, but on the other hand, the nature of the statutory duty imposed itself necessarily implied an obligation to hear before deciding, that the audi alteram partem rule could be imported."
18. In this regard, it is useful to quote a passage from the decision rendered in the case of Biswa Ranjan Sahoo v. Sushanta Kumar Dinda, (1996) 5 SCC 365 : AIR 1996 SC 2552.
"3. A perusal thereof would indicate the enormity of malpractices in the selection process. The question, therefore, is : whether the principle of natural justice is required to be followed by issuing notice to the selected persons and hearing them? It is true, as contended by Mr. Santosh Hegde, the learned Senior Counsel appearing for the petitioners, that in the case of selection of an individual if his selection is not found correct in accordance with law, necessarily, a notice is required to be issued and opportunity be given. In a case like mass malpractice as noted by the Tribunal, as extracted hereinbefore, the question emerges: whether the notice was required to be issued to the persons affected and whether they needed to be heard? Nothing would become fruitful by issuance of notice. Fabrication would obviously either be not known or no one would come forward to bear the brunt. Under these circumstances, the Tribunal was right in not issuing notice to the persons who are said to have been selected and given selection and appointment. The procedures adopted are in flagrant breach of the rules offending Articles 14 and 16 of the Constitution."
19. We have referred to the aforesaid paragraph only to show that in the aforesaid case, their Lordships had given emphasis on the term to decide and determine to the prejudice of a person. Though the aforesaid case was delivered in a different context, but the fact remains that in a case of different nature, the principles of natural justice are not attracted.
20. In this context, we may profitably refer to the decision rendered in the case of State of M.P. v. Shyama Pardhi, (1996) 7 SCC 118 : AIR 1996 SC 2219, wherein in Paragraph 5, their Lordships have held as under:--
"5. It is now an admitted fact across the Bar that the respondents had not possessed the prerequisite qualification, namely, 10+2 with Physics, Chemistry and Biology as subjects. The Rules specifically provide that qualification as a condition for appointment to the post of ANM. Since prescribed qualifications had not been satisfied, the initial selection to undergo training is per se illegal. Later appointments thereof are in violation of the statutory rules. The Tribunal, therefore, was not right in directing the reinstatement of the respondents. The question of violation of the principles of natural justice does not arise. The ratio of Shrawan Kumar Jha v. State of Bihar, strongly relied on, has no application to the facts of this case. That was a case where the appellants possessed initial qualifications but they did not undergo the training. Since the appointment was set aside on the ground of want of training this Court interfered with, directed the Government to reinstate them into service and further directed them to send the appellants therein for training."
21. In this regard, we may also refer to a two-Judge Bench decision rendered in the case of Union of India v. Rati Pal Saroj, (1998) 2 SCC 574 : AIR 1998 SC 1117. The Apex Court in Paragraph 11 came to hold that when appointment was withdrawn on account of lodging FIR filed against the respondents, there was no necessity to afford an opportunity of hearing to him before withdrawing his appointment.
22. Recently, in the case of Kendriya Vidyalaya Sangathan v. Ajay Kumar Das, (2002) 4 SCC 503 : AIR 2002 SC 2426, the Apex Court expressed the view that when an appointment is made by incompetent person, the observance of principles of natural justice is not obligatory.
23. We have referred to the aforesaid decisions to show that in certain circumstances, principles of natural justice can also be ostracized. We will deal with this facet when we will be dealing with the other contention advanced by the learned counsel for the petitioners that a copy of G. Jagathpathi Committee report was not supplied to them along with show-cause. For consideration of this submission, suffice it to say that a Committee constituted for the purpose of holding an enquiry into the working method of the JDA is not a quasi-judicial body nor an adjudicating authority or for that matter an administrative authority whose decision prejudicially affects the rights of the petitioners and, therefore, the stand that Jagathpathi Committee did not hear the writ petitioners is of total insignificance.
24. In the case at hand, Jagathpathi Committee only conducted an inquiry in respect of the irregularities and illegalities committed by the JDA. It did not determine the rights of the leaseholders or allottees. We may hasten to add in the absence of any adjudication of right and in the absence of any determination of status causing any prejudice to the petitioners, the principles of natural justice at that stage were not attracted. That apart, the concept of natural justice, cannot be allowed to penetrate into every sphere even to one where the action is ab initio void. The inquiry was set up in public interest. When a fact finding inquiry is set up to find out about the financial irregularities or irregularities ancillary thereto at that stage grant of opportunity of hearing to other side is not necessitous. The basic conception of the said opportunity has its own limitation and cannot be allowed to rule in every spectrum. Quite apart from the above, the JDA had offered an opportunity of hearing to the appellants. Whether it was a mere formality or it had its sanctity would be considered by us at later stage. However, as far as the G. Jagatpati Committee is concerned, we are disposed to hold that adherence to the principles of natural justice was not necessary.
25. The next contention which has been put forth is relatable to the, abdication or abandonment of power by the JDA. This contention has to be dealt with the proponement that non-supply of the report of the Committee per se vitiates the action of the JDA in entirety. It is urged with vehemence by the learned counsel for the parties that JDA had acted within its statutory bounds and, therefore, it had no authority to issue the perfunctory notice on the basis of the mandate of the State Government. Our attention has been drawn to the show-cause notice. On a careful scrutiny of the same, it is noticeable that all the grounds for cancellation were enumerated. True it is, the petitioners in their reply to the show-cause had asked for the report of Jagathpathi Committee so that they could defend themselves properly. Mr. V. S. Shroti, learned senior counsel appearing for one of the appellants has urged with vehemence that non-supply of the report when asked for has vitiated the entire process of cancellation. To buttress his submission, he has placed reliance on the decisions rendered in the cases of Union of India v. Mohd. Ramzan, AIR 1991 SC 471 : 1991 Lab IC 308 and the Managing Director, ECIL, Hyderabad v. B. Karunakar, AIR 1994 SC 1074 : 1994 Lab IC 762. In the case of B. Karunakar (supra) the Constitution Bench was dealing with supply of enquiry report by the disciplinary authority to a delinquent officer. In that context, their Lordships expressed the view as under :--
"Hence, in all cases where the Inquiry Officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The Courts should avoid resorting to short-cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Courts/Tribunals find that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment."
26. This being the position of law, the real test is prejudice. We shall enter into that arena at a later stage while we will be discussing with regard to the findings recorded by the Committee in relation to the violation of the rules, but we may unequivocally and categorically state here that non-supply of the Jagathpathi Committee report per se or ipso facto does not vitiate the cancellation. As far as the abdication of power is concerned, it is vehemently urged by Mr. N. S. Kale that the JDA has totally become a tool in the hands of the Government and hence, the discretion having been thrown to the winds in toto, the entire proceeding initiated for cancellation is vitiated. The aforesaid submission, in our considered opinion is devoid of any substance inasmuch as the JDA issued show-cause notices, considered the reply on its own and passed necessary orders and, therefore, it cannot be said that it abdicated its discretionary power.
27. At this juncture, we think it appropriate to refer to the test of prejudice. The Jagathpathi Committee report has been supplied to the petitioners. The Committee has taken note of the statutory provisions and noticed some illegality/irregularity/impropriety in fifteen cases. It is relevant to state here that the Committee was scrutinizing number of cases, out of these fifteen cases, fen cases pertain to allotments made in favour of educational institutions and remaining five related to putting of Community Halls. The Committee in Paragraph 13 dealt with the Sub-Committee in respect of which there was delegation of power. In that context, the G. Jagathpathi Committee expressed its view as under :--
"It is also to be particularly noted that, in MPNTGNA, there is a specific Section -- Section 75 -- relating to the delegation of powers. Under this section, the Authority has not been given any power to delegate : in other words, it has got to function and cannot, by way of sub-committees or whatever, commit suicide -- however willing it may be to avail itself of such a final release! Even if the 'sub-committee' is considered a working arrangement and not a legal entity and thus perhaps valid on an ad hoc basis, what is not valid is the appointment of two sub-ordinate officials of JDA (Shri O. C. Sahu, already mentioned and Shri T. K. Anand, another Executive Engineer of JDA). -- with Dr. Jain himself as a Chairman -- to the 'sub-committee'. Normally, a sub-committee can have as its members only members of the main committee or body (in this case, the Authority) unless that same main committee or body authorise, and specifies, what kinds of non-member can be appointed to the sub-committee and to what extent. Further, the normal practice is that a sub-committee's report/recommendations are considered, and decided upon, by the full body, the intention being that both at the final stage of decision making and at the earlier stage of proposal-processing, the full competence and authority of the whole body at the former stage and some of it, at least, at the latter stage are brought to bear on the matter being considered. Even when non-members are appointed to sub-committees, they are brought in because of their special competence or some other kind of special standing. Unfortunately, here we have a 'sub-committee' one member of which Shri Sahu -- had already committed himself to these decisions and it is naive to expect that Shri Anand would do any opposing, even if he were so inclined, knowing that the other two, one of which was the Chairman himself-- had already decided what should be done. The so-called 'sub-committee' was a sham and the Chairman considered himself free to ignore its 'recommendation' if he chose to do so. The Authority of 14 members was a non-functioning, passive body with the Chairman doing what he liked not only in respect of areas allotted but in other matters as well. In the case of SS, where the area 'recommended' by the sub-committee was 39100 sq.ft. the Chairman later decided to allot 1,24,750 sq.ft. (more than thrice what was recommended). There is also no evidence that the sub-committee did even the scantiest scrutiny of the application which, as indicated earlier, is the first stage of consideration in any good organisation -- even though in every case some information was available, though by no means adequate. Another thing that could have been done was to check the credentials and capabilities of the applicant-institutions. It will be seen later that the payment-performance of most of the selected institutions was unsatisfactory and this infructuous result could have been avoided by initial care. In any case, at least some reasons could have been recorded as to why the institution selected was selected and why the others were not. No standards of land requirement for different kinds of educational institutions were followed. Rule 49 of the M.P. Bhumi Vikas Rules, 1984, provides general standards for these purposes. For instance, for a primary school in a highly urban area like Jabalpur, the standard would be 0.4 hectare (i.e. 43,056 sft.) --which, the Committee feels, is itself rather liberal considering the fact that urban land is become scarcer and costlier. It will have been seen that it is only in the case of GSS that the allotment gives less land than this standard permits; otherwise the allotments are excessively liberal and follow no apparent rule, standard or criterion."
28. While dealing with the issue relating to premium and rent in paragraphs 15 and 17 of the report, the Committee expressed the view as under :--
"15. 'Premium' and 'Rent': This waywardness in allotment is more than matched by the illegality of the fixation of premium and rent. The first twenty-five rules of the Madhya Pradesh Nagar Tatha Gram Nivesh Vikasit Bhoomiyo, Griho, Bhavano Tatha Anya Sanrachanao Ka Vyayan Niyam, 1975 (M.P. Vyayan Niyam, for short) deal with the different ways of disposal of Authority land (direct negotiation, public auction, tendering and allotment on concessional terms) arid the methods of fixing premium and rent. In respect of direct negotiation, the Authority has to have the general or special sanction of Government (Rule 6). Publicity has to be given to the Authority's intention to negotiate so that all interested might seek to do so. What the premium should be determined in the light of the public auction of a few plots (Rule 7). Rule 19 makes it absolutely clear that the Authority has to have the approval of Government for giving land to any institution or registered body on concessional terms. Except for the rate at which rent is to be fixed (i.e. 2%), JDA has brazenly flouted every other rule. Not only has no approval of Government been sought but the method of fixing premium is extraordinary. JDA's premium 'policy' was to charge Rs. 10/- per sq. ft. but only for 40% of the area allotted; JDA's meeting on 6-6-91 which created the 'subcommittee' also gave direction to the Chairman to fix premium on these lines. There is no explanation available anywhere in JDA's records of how this 40% has been arrived at. If only 40% of the allotted area has to bear a premium, the remaining 60% is obviously a free transfer for which no explanation is available. If the basis is that not even 40% of the area can be built upon according to municipal regulations, it is absurd because the built up area restriction applies to the area actually owned by the lessee so that, if one has a lease on 1,000 sq.ft., the restriction applies to that area. Nobody can say, for instance, that, if a public park surrounds one's plot, one can include the park area as open space for his plot and calculate built-up area accordingly ! One wonders whether; if Dr. Jain sold some land of his own, he would accept the prevailing price for only 40% of what he was selling! The effect is that the premium per sq. ft is only Rs. 4/- (i.e. 40% of Rs. 10/-) and not Rs. 10/-. Correspondingly, the rent would be not 20 paise (10x.02 per sq. ft) but only 8 paise (4x.02). As reported by the Collector, the market price in these cases varies from Rs. 35/- per sq. ft to Rs. 100/- per sq. ft.; the Committee feels that prices in fact are much higher though it bases its report on these prices as reported by the Collector.
Statement No. 1 appended shows the losses in rent and premium if market prices had been charged: thus, for instance, for the 1,55,000 sq. ft. allotted to SRMSS, the loss in premium would be Rs. 71.3 lakhs (i.e. Rs.
(50-4) x 1,55,000) and the loss in rent would be Rs. 1,42,600 (i.e. (50x0.02) - 08) x 1,55,000).
17. Payment performance : possession : When things are not done the right way, the consequences will not be right either. Thus, the performance of the selected institutions in the matter of making payments of premium has not been generally satisfactory; the question of rent will arise only after land transfer which, to the Committee's knowledge, has not yet taken place in any of these eight cases. The scheme of payment of premium was : 50% within 15 days of allotment (i.e. by 31-7-91 except in case of SS where the date was 15-9-91) and the rest in six (6) monthly instalments. SS and SBVSS have paid up the full premium whereas MESS and GSS have not made any payment at all. The others have made only part-payments as follows :--
(1) SRMSS did not make any payment towards 50% of the premium before 31-7-91, it paid Rs. 1,50,000/- five (5) months later and the remaining Rs. 1,60,000/- about a week thereafter (i.e. on 7-1-92), another instalment due (Rs. 38,750/-) has also been paid;
(2) of the amount of Rs. 1,82,115/- (as a result of a slight change in areas the amount has changed) payable by 31-7-91, only a sum of Rs. 50,000/- was paid by JTVVS almost 11 months later (i.e. on 27-6-92). No further payments have been made;
(3) the amount of Rs. 2,49,260/- (50% of the premium) due to be paid by GGSES on 31-7-91 was paid after a slight delay on 13-8-91; no payments have been made thereafter;
(4) a little more than 50% of the premium due was paid on 26-7-91 and by 25-6-92, 9 instalments were paid but none thereafter."
29. As is seen from the above, the Committee has shown its dis-satisfaction with regard to non-following of the procedure, arbitrary use of power, abuse of discretion and the unreasonable fixation of premium and rent.
30. The learned Counsel for the petitioners submitted that had this report been given to them they would have been in a position to satisfy that Rules 19 and 20 are riot applicable to the cases at hand and Rule 4 of the Rules does not prohibit for grant of excess area and that JDA had acted in good faith by following the general circular issued by the State Government. As these aspects are interconnected with other submissions and the findings recorded by the learned single Judge, we will advert to them in seriatim.
31. First we shall deal with the anatomy of the Rules 4, 19 and 20 of the Rules to appreciate the submissions of the learned counsel for the parties. Rule 4 stipulates that the authority land shall be transferred in accordance with the rules following thereafter. Rule 5 deals with mode of transfer namely by direct negotiation with the party; or by public auction; or by inviting tenders or under concessional terms. Rules 6 to 18 deal with the first three modes of transfer. Rules 19 and 20 deal with fourth mode of transfer. It is appropriate to reproduce Rules 19 and 20 :
"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 or sale of land on concessional terms shall be allowed for the purposes of other than charitable purposes such as for hospital, educational institutions and orphanages."
32. Submission of Mr. Kale as well as Mr. Shroti is that the prior approval which has been emphasized upon by the Committee was not necessary in view of the general power issued by circular dated 20-8-96 (86). The proponement by Mr. R. S. Jha is that the circular cannot override the mandate of Rule 19. The learned single Judge has expressed the view that the authority before leasing out the land on concessional terms was under an obligation to obtain the previous approval of the State Government despite the circular. We have perused the aforesaid circular which has been brought on record. On a perusal of the same, it is quite luminescent that the allotment could have been made on 'no profit no loss basis'. We are not at this juncture inclined to dwell upon the facet whether such a general power could have been conferred on the JDA or not. What we have noticed is that the power given was not an absolute one but a conditional one. To elucidate, the JDA was required to work out the cost and other expenditure to arrive at the price of the land so that the same could have been settled on 'no profit no loss basis'. The contention that the JDA was the best judge for determination of 'no profit no loss' is conceptually, erroneous and inherently fallacious. The determination can not be founded on subjective thinking but on objective detailed analysis. Nothing has been placed on record to substantiate how much amount was spent by the authority in obtaining the land and in its development. It does not appear that any exercise has been done in that regard. Mr. Naman Nagrath has produced the original files of the JDA before us. On a perusal of proceedings dated 6-6-1991, it transpires that the Chairman of JDA had fixed the price at Rs. 10/- per square foot in respect of 40% of the land. In meeting dated 19-9-1992 a notesheet was given that the prior permission should be obtained from the State Government. The proceedings are absolutely silent in regard to the exercise undertaken by the JDA for determination of price. We also find that the G. Jagathpathi Committee report is totally in consonance with the records of the JDA, Thus, we are in agreement with the finding recorded by the learned Single Judge that the premium had been fixed in a most arbitrary and illegal manner. In view of this the stance that Rule 19 was not necessary to be complied with is wholly inconsequential inasmuch as the conditions precedent engrafted in the circular were not adhered to.
33. We may at this stage note that a contention was canvassed that there has been no violation of Rule 20. Mr. Kale urged with vehemence that Rule 20 commences with the word 'Ordinarily' and that does not necessarily mean that on all occasions the concessional terms shall be allowed only for charitable purposes such as hospitals, educational institutions and orphanages. Submission of Mr. Kale that a land can be allotted for the purpose of community hall the term 'ordinarily' being directory in nature. There is no doubt that the word 'Ordinarily' has a different connotation and does not always necessarily mean that the purposes mentioned in the rule are the only purposes but when a deviation is shown, cogent reasons are to be given. On a perusal of the file, we, find that the same is silent in that regard. That apart, the main issue is the way: in which the whole thing was done.
34. It is next contended that the Committee had committed an error on the ground that excess land was allotted in favour of some of the associations and fixed the premium in respect of 40% of the land. It is urged that if the report of the Committee would have been given to the petitioners, they could have explained that such a finding is not tenable as there is no prohibition in the Rules to give a larger area. It is also submitted that the 40% being the area on which the constructions are to take place, the premium was fixed for the said area. It is canvassed before us that the rest of the area was to be kept free and, in a conscientious manner the JDA thought it appropriate not to fix the 'premium for the same. The Committee has taken exception to the same, and we are disposed to think, rightly. The entire land was allotted or granted on lease in favour of the petitioners. True it is, they were permitted to construct on 40% of the land but we perceive no logic why the premium should have been fixed on the said portion of land leaving the balance. The petitioners are entitled to use such land for other purposes, namely, horticulture or garden. When they enjoy this property remaining in possession, there is no rhyme or reason to leave it out from the purposes of computation of premium. Thus, we find that the ground of prejudice which is canvassed by the petitioners with vehemence does not really merit consideration as they are not able to meet out the points put forth in the report.
35. The next ground of assail is that the authority is estopped by doctrine of promissory estoppel to make the cancellation. To buttress the aforesaid submission, reliance had been placed on the Sharma Transport v. Government of A.P., (2002) 2 SCC 188 : AIR 2002 SC 322. Mr. Shroti, learned counsel for the petitioner has drawn inspiration from Paragraph 13 of the aforesaid judgment. We think it appropriate to reproduce the said paragraph at page 327, of AIR :
"13. Next plea is the oft-repeated one of promissory estoppel. It has to be noted that even though a concession is extended for a fixed period, the same can be withdrawn in public interest. In STO v. Shree Durga Oil Mills, (1998) 1 SCC 572 : (1997) 7 Scale 726 : AIR 1998 SC 591 it has been held by this Court that a notification granting exemption of tax can be withdrawn at any point of time. There cannot be estoppel against any statute. Where it is in public interest; the Court will not interfere because public interest must override any consideration of private loss or gain, see Kasinka Trading v. Union of India, (1995) 1 SCC 274 : AIR 1995 SC 874. In Shrijee Sales Corporation v. Union of India, (1997) 3 SCC 398, it was observed that where there was supervening public interest, the Government is free to change its stand and withdraw the exemption already granted. One such reason for changing its policy decision can be resource crunch and the loss of public revenue. There is preponderance of judicial opinion that to invoke the doctrine of promissory estoppel, clear, sound and positive foundation must be laid in the petition itself by the party invoking the doctrine and that bald expressions, without any supporting material, to the effect that the doctrine is attracted because the party invoking the doctrine has altered its position replying on the assurance of the Government would not be sufficient to press into aid the doctrine. The principle of promissory estoppel is that where one party has by his word or conduct made to the other a clear and unequivocal promise or representation which is intended to create a legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise or representation is made and it is in fact so acted upon by the other party, the promise or representation would be binding, on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so, having regard to the dealings which have taken place between the parties. The doctrine of promissory estoppel is now well-established one in the field of administrative law. The foundation for the claim based on the principle of promissory estoppel in public law was laid by Lord Denning in 1948 in Robertson v. Minister of Pensions, (1949) 1 KB 227 : (1948) 2 All ER 767. Prof. de Smith in his Judicial Review of Administrative Action (4th Edn. at p. 103) observed that "the citizen is entitled to rely on their having the authority that they have asserted".
36. In this context, we may also refer to paragraph 24 of the same judgment, wherein their Lordships expressed the view as under at page 330 of AIR:--
"24. It is equally settled law that the promissory estoppel cannot be used to compel the Government or a public authority to carry out a representation or promise which is prohibited by law or which was devoid of the authority or power of the officer of the Government or the public authority to make. Doctrine of promissory estoppel being an equitable doctrine, it must yield place to the equity, if larger public interest so requires, and if it can be shown by the Government or public authority for having regard to the facts as they have transpired that it would be inequitable to hold the Government or public authority to the promise or representation made by it. The Court on satisfaction would not, in those circumstances raise the equity in favour of the persons to whom a promise or representation is made and enforce the promise or representation against the Government or the public authority. These aspects were highlighted by this Court in Vasantkumar Radhakisan Vora v. Board of Trustees of the Port of Bombay, (1991) 1 SCC 761 : AIR 1991 SC 14, STO v. Shree Durga Oil Mills, (1998) 1 SCC 572 : (1997) 7 Scale 726 : AIR 1998 SC 591 and Ashok Kumar Maheshwari (Dr) v. State of U.P., (1998) 2 SCC 502 : 1998 SCC (L&S) 592 : AIR 1998 SC 966. Above being the position, the plea relating to promissory estoppel has no substance."
37. Mr. R. S. Jha, learned Dy. Advocate General, sounding a contra note, has submitted that if an agreement defeats the provisions of law or an agreement is contrary to mandate of the statute or if the initial conferral of right Is ab initio void, the question of promissory estoppel does not arise. If the decision rendered in the case of Sharma Transport, AIR 2002 SC 322 (supra) is understood in proper perspective, we are of the considered opinion, the ratio laid down therein does not assist the appellants. On the contrary, it reiterates the principle of public interest. In this context, we may profitably refer to the two-Judge Bench decision rendered in the case of Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain, (1997) 1 SCC 35, wherein their Lordships in Paragraphs 13 and 14 held as under:--
"13. All purposes or actions for which moral responsibility can be attached are actions performed by individual persons composing the department. All Government actions, therefore, means actions performed by individual persons to further the objectives set down in the Constitution, the laws and the administrative policies to develop democratic traditions, social and economic democracy set down in the Preamble, Part III and Part IV of the Constitution. The intention behind the Government actions and purposes is to further the public welfare and the national interest. Public good is synonymous with protection of the interests of the citizens as a territorial unit or nation as a whole. It also aims to further the public policies. The limitations of the policies are kept along with the public interest to prevent the exploitation or misuse or abuse of the office or the executive actions for personal gain or for illegal gratification.
14. The so-public policy cannot be a camouflage for abuse of the power and trust entrusted with a public authority or public servant for the performance of public duties. Misuse implies doing of something improper. The essence of impropriety is replacement of a public motive for a private one. When satisfaction sought in the performance of duties is for mutual personal gain, the misuse is usually termed as corruption. The holder of a public office is said to have misused his position when in pursuit of a private satisfaction, as distinguished from public interest, he has done something which he ought not to have done. The most elementary qualification demanded of a Minister is honesty and incorruptibility. He should not only possess these qualifications but should also appear to possess the same."
38. We have referred to the aforesaid decision only to highlight that there had been abuse of power, violation of the rules and the action from the very inception is illegal. That apart, the Jagathpathi Committee has arrived at the conclusion that enormous financial loss had been caused to the JDA. Attractive submissions have been put forth that the Committee has kept in view the factum of auction which is totally unwarrantable in a case of this nature. We are absolutely clear in our mind that it is not that loss which has weighed with us but we have kept ourselves alive to the situation that there had been no exercise by the JDA to find Out the real price and the premium has been fixed for 40% of the land. In view of this, we have no hesitation in coming to hold that allotments were made and the lease deed in question was executed for a song. A property belonging to the collective cannot be distributed at the whim and fancy of the people who are at the helm of affairs totally remaining oblivious to the public interest and ostracizing the conception of collective good. Be it noted, in the prosperity of the collective, the individual gets the benefit and any action that is contrary to the community interest or interest of the collective at large loses its sacro-sanctity and cannot be treated impeccable or presentable because of certain minor observations made in the Committee, Thus, considered from both the angles the doctrine of promissory estoppel would not arise.
39. It is next argued that there has been unreasonable delay in initiating the proceeding for cancellation. To substantiate the aforesaid submission, reliance has been placed on the decision of this Court rendered in the case of Ram Bharose Sharma v. State of M.P., 2002 (3) MPLJ 189. On a perusal of the aforesaid decision, we find that it was delivered in the context of M.P. Land Revenue Code and not on the basis of any abuse of power by a public authority. We are of the considered opinion the said decision is not applicable to the cases at hand. That apart, we also do not perceive any unreasonable delay in taking action. In fact, the Committee was set up in quite promptitude and appropriate notice to show cause was issued. Hence, we do not find any substance in this contention and impelled to repel the same.
40. It is next contended by Mr. N. S. Kale that the JDA had entered into an agreement with the appellant in his case. The learned single Judge has passed a separate order in the said case while dealing with the said aspect. He has referred to the decision rendered in the case of State of U.P. v. Dharmander Prasad Singh, AIR 1989 SC 997. The Apex Court in the aforesaid case held as under :
"On a consideration of the matter, we think, in the facts and circumstances of the case, the High Court should have abstained from examination of the legality or correctness of the purported cancellation of the lease which involved resolution of disputes on questions of fact as well. In Express Newspapers v. Union of India, 1984 Supp (3) SCR 352 : AIR 1986 SC 872 at p. 953, Venkataramiah, J. in a somewhat analogous situation observed :
"The rest of the questions relate truly to the civil rights of the parties flowing from the lease deed. Those questions cannot be effectively disposed of in this petition under Article 32 of the Constitution. The questions arising out of the lease, such as, whether there has been breach of the covenants under the lease, whether the lease can be forfeited, whether relief against forfeiture can be granted etc. are foreign to the scope of Article 32 of the Constitution, They cannot be decided just an affidavits. These are matters which should be tried in a regular civil proceeding. One should remember that the property belongs to the Union of India and the rights in it cannot be bartered away in accordance with the sweet-will of an officer or a Minister or a Lt. Governor but they should be dealt with in accordance with law. At the same time a person who has acquired rights in such property cannot also be deprived of them except in accordance with law. The stakes in this case are very high for both the parties and neither of them can take law into his own hands."
Accordingly, we hold that the question whether the purported forfeiture and cancellation of the lease were valid or not should not have been allowed to be agitated in proceedings under Article 226."
41. That apart when the initial action is initiated no right is created. In the case of Common Cause, A Registered Society v. Union of India, (1996) 6 SCC 530 : AIR 1996 SC 3538 the Apex Court in Paragraphs 22 and 24 held as under :--
"22. The Government today -- in a welfare State provides large number of benefits to the citizens. It distributes wealth in the form of allotment of plots, houses, petrol pumps; gas agencies, mineral leases, contracts, quotas and licences etc. Government distributes largesses in various forms. A Minister who is the executive head of the department concerned distributes these benefits and largesses. He is elected by the people and is elevated to a position where he holds a trust on behalf of the people. He has to deal with the people's property in a fair and just manner. He cannot commit breach of trust reposed in him by the people. We have no hesitation in holding that Capt. Satish Sharma in his capacity as a Minister of Petroleum and Natural Gas deliberately acted in a wholly arbitrary and unjust manner. We have no doubt in our mind that Capt. Satish Sharma knew that the allottees were relations of his personal staff, sons of Ministers, sons/relations of Chairmen and members of the Oil Selection Boards and the members of the Oil Selection Boards themselves. The allotments made by him were wholly mala fide and as such cannot be sustained.
24. The orders of the Minister reproduced above read ; "the applicant has no regular income to support herself and her family", "the applicant is an educated lady and belongs to Scheduled Tribe Community", "the applicant is unemployed and has no regular source of income", the applicant Is an uneducated, unemployed Scheduled Tribe youth without regular source of livelihood", "the applicant is a housewife whose family is facing difficult financial circumstances" etc. etc. There would be literally millions of people in the country having these circumstances or worse. There is no justification whatsoever to pick up these persons except that they happen to have won the favour of the Minister on mala fide considerations. None of these cases fall within the categories placed before this Court in Centre for Public Interest Litigation v. Union of India but even if we assume for argument sake that these cases fall in some of those or similar guidelines the exercise of discretion was wholly arbitrary. Such a discretionary power which is capable of being exercised arbitrarily is not permitted by Article 14 of the Constitution of India. While Article 14 permits a reasonable classification having a rational nexus to the objective sought to be achieved, it does not permit the power to pick and choose arbitrarily out of several persons falling in the same category. A transparent and objective criteria/procedure has to be evolved so that the choice among the members belonging to the same class or category is based on reason, fair play and non-arbitrariness. It is essential to lay down as a matter of policy as to how preferences would be assigned between two persons falling in the same category. If there are two eminent sportsmen in distress and only one petrol pump is available, there should be clear, transparent and objective criteria/procedure to indicate who out of the two is to be preferred. Lack of transparency in the system promotes nepotism and arbitrariness. It is absolutely essential that the entire system should be transparent right from the stage of calling for the applications up to the stage of passing the orders of allotment. The names of the allottees, the orders and the reasons for allotment should be available for public knowledge and scrutiny. Mr. Shanti Bhushan has suggested that the petrol pumps agencies etc. may be allotted by public auction categorywise amongst the eligible and objectively selected applicants. We do not wish to impose any procedure on the Government. It is a matter of policy for the Government to lay down. We, however, direct that any procedure laid down by the Government must be transparent, just, fair and non-arbitrary."
42. In this context we may profitably refer to the decision rendered in the case of M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu, (1999) 6 SCC 464 : AIR 1999 SC 2468 wherein the Apex Court laid emphasis on the concept of public trust doctrine, We have referred to the aforesaid decision only to highlight that the JDA has been constituted for making better provisions for the preparation and development of plans and to ensure town planning. It has the sanguine duty to see that it functions according to the Act and Rules. The land does not belong to the Chairman or members. It is the property of the collective. It is vehemently urged that the petitioners were not at fault when they applied and got the land and fault, if any, has been committed by the JDA. To elucidate: the stand is that no fraud was committed by the petitioners. True it is, there was no apparent fraud by the petitioners but definitely the concerned authority at the relevant time did not act in accordance with the provisions of the statute and the rules. He chose not to take care to see that the interest of the authority was protected. The Committee has commented harshly on him, submitted Mr. Kale, as if the Committee was writing an Ex post facto dissection on his conduct. We are not inclined to enter into that debate. What flows is that the authority concerned did not keep in view the basic concept of public good in an action and the maxim 'salus popali suprema lex' was thrown to the winds and if we allow ourselves to say so, it was given a quiet burial as if there was an element of malpactum. We may not be understood to have said there was a pact but we are constrained to say the collective interest was totally kept out of the purview and action was taken in flagrant violation of the interest of the Collective. At this Juncture, we are reminded of an of stated Siddhanta :
"Yadappi Siddham Loka Viruddham, Na Adarniyam, Na Acharniyam."
We have referred to this only to show that the larger collective interest has to be given priority and should not be abandoned for some exiguous interest put forth in the name of collective front.
43. But the same has not been followed and the public trust has been betrayed and, therefore, we do not see any reason to differ with the findings recorded on that score by the learned single Judge.
44. The last plank of submission is that the learned single Judge has erred by directing for re-advertisement. It is urged by them that neither Rule 19 nor Rule 20 envisages calling for advertisement. Though the aforesaid contention is quite attractive one but if the authority decides to call for an advertisement to find the suitability of an applicant who intends to have land allotted for charitable purposes such as hospital, educational institutions and orphanages, it cannot be said that the authority committed any error in doing so. We are not at this stage disposed to deal with the issue whether it is mandatory or not. We are not adverting to the fact whether calling for advertisement is necessary or not. We may only observe that as the learned single Judge keeping in view the totality of facts and circumstances has directed there shall be an advertisement we think in public interest that should be adhered to. Hence, the direction given is unexceptional.
45. Resultantly, the appeals, being devoid of substance, their dismissal is inevitable and accordingly we so direct. However, in the peculiar facts and circumstances of the case, there shall be no order as to costs.