Gujarat High Court
Allahrakha Rasulbhai Mansuri vs Vice Chairman & Managing ... on 17 March, 2017
Author: Anant S.Dave
Bench: Anant S. Dave
C/SCA/8542/2006 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8542 of 2006
With
CIVIL APPLICATION NO. 895 of 2011
In
SPECIAL CIVIL APPLICATION NO. 8542 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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ALLAHRAKHA RASULBHAI MANSURI....Petitioner(s)
Versus
VICE CHAIRMAN & MANAGING DIRECTOR(GIDC) & 1....Respondent(s)
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Appearance:
MR KV SHELAT, ADVOCATE for the Petitioner(s) No. 1
MR MB FAROOQUI, ADVOCATE for the Petitioner(s) No. 1
MR UDAY JOSHI for M/S TRIVEDI & GUPTA, ADVOCATE for the
Respondent(s) No. 1 - 2
RULE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
Date : 17/03/2017
CAV JUDGMENT
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1. This petition under Article 226 of the Constitution of India is filed by the petitioner who was serving as Regional Manager and holding additional charge of Divisional Manager (GIDC), Rajkot in Super Class-I, Officer Category, with a prayer to issue a writ of mandamus or any other appropriate, writ, order or direction to respondent to allot a residential plot to the petitioner at Gandhinagar in view of entitlement of the petitioner for allotment of such residential plot as per the policy of respondent- Corporation prevailing in the year 2004.
2. When this petition was filed in 2006, the petitioner was on verge of superannuation after rendering about 36 years of service. In the year 1970, the petitioner was appointed as an Assistant and came to be promoted as Junior Officer in the year 1973 and further promotion was granted as Senior Officer in the year 1978 and with continuous good performance he was promoted as Assistant Junior Executive in the year 1985 and attained the position as an Officer in above category of Super Class-I. The petitioner has served with respondent-GIDC in various capacity and except one incident of imposition of minor penalty of fine of Rs.5,000/- no other punishment or any misconduct appear during entire service rendered by him. Even the above punishment of fine of Rs.5,000/- imposed under Section 40(a) (2) of GIDC (Staff) Regulation, 1963 was with regard to unsatisfactory performance of the petitioner as a representative of the Page 2 of 30 HC-NIC Page 2 of 30 Created On Mon Aug 14 13:13:38 IST 2017 C/SCA/8542/2006 CAV JUDGMENT department in departmental inquiry initiated against another employee who was also facing trivial charge of constructing common wall by combining two plots alloted to the employees.
3. As per resolution dated 4.4.2001 passed by Government of Gujarat, allotment of residential plot to its employee without holding any auction and on concessional rate was issued and adopting the very policy, GIDC also issued circular on 28.9.2004 and accordingly the petitioner applied for the allotment of the plot in prescribed formate and with scrutiny fees on 13.10.2004. In the above prescribed form declaration/undertaking, a query was to be answered about pending of any departmental inquiry, to which, the petitioner answered "No" but by way of abundant caution mentioned that it can be verified from the concerned department. Thereafter list of eligible candidates for allotment of plots by way of draw system was prepared and such draw took place on 30.8.2005 and minute book was prepared. However, name of the petitioner was not reflected in the official outcome and therefore, addressed various reminders to the authority and finally inquiry was made under the provisions of Right to Information Act and a reply was received from Regional Manager, GIDC, Ahmedabad, which was very vague and therefore, again details were asked for. Since proper reply was not given a legal notice was issued to the department and finally it Page 3 of 30 HC-NIC Page 3 of 30 Created On Mon Aug 14 13:13:38 IST 2017 C/SCA/8542/2006 CAV JUDGMENT appeared on record that in the list of 187 employees who had applied for the plots, found eligible, name of the petitioner was included but allotment was denied on the ground of pendency of inquiry.
4. Later on circular dated 18.2.2010 issued by GIDC whereby allotment of residential plot to its employee was permitted even though inquiry was pending including the cases of suspension and one Mr. V.K.Patel at Sr. No.54 in the list of eligible employees though inquiry was pending on the very day was alloted the residential plot. Even some other employees against whom inquiry was pending and name in the petition were also given residential plot and till the petitioner retired from services of GIDC i.e. on 31.5.2006, no allotment of residential plot was made.
5. Mr.K.V.Shelat, learned advocate for the petitioner relied on various grounds in support of his submissions that the petitioner is given hostile treatment and being discriminated without any reason and similarly situated persons though inquiry was pending were alloted residential plots and inspite of eligibility of the petitioner he is deprived of allotment of residential plot though rendered meritorious service to GIDC for about 36 years. The denial of residential plot on the ground of pendency of inquiry and imposition of fine of Rs.5,000/- for unsatisfactory performance as a representative of the department in an inquiry against another employee of GIDC cannot be made a ground and, therefore, exercise of Page 4 of 30 HC-NIC Page 4 of 30 Created On Mon Aug 14 13:13:38 IST 2017 C/SCA/8542/2006 CAV JUDGMENT powers by respondent is unjust, unreasonable, arbitrary and colourable exercise of powers in violation of Article 14 of the Constitution of India and the impugned action of respondents in denying allotment of residential plot to the petitioner deserves to be quashed and set aside.
5.1 Mr.K.V.Shelat, learned advocate for the petitioner would contend that even the charge-sheet issued to the petitioner never preceded with any show cause notice. It cannot be said that when the petitioner filled in prescribed application form on 13.10.2004 for the allotment of 200 sq.meter of land inquiry was pending. No where the petitioner suppressed any fact but by way of abundant caution it was written that confirmation can be made from the inquiry department of GIDC. Mr.Shelat, learned advocate, invited attention of this Court to nature of charges against the petitioner and duty he was to perform as a representative of the department in the departmental inquiry against fellow employee who was facing charge regarding amalgamation of two plots and constructing bungalow making a boundary between two common plots as common wall treating the same as one plot. Even plan for such construction was sanctioned by Executive Engineer, GIDC. That after removal of the petitioner as an inquiry officer another presenting officer was appointed in which, charges No. 2 and 3 were not proved against fellow employee. It is therefore submitted that the whole action of denying residential plot to the petitioner though he was Page 5 of 30 HC-NIC Page 5 of 30 Created On Mon Aug 14 13:13:38 IST 2017 C/SCA/8542/2006 CAV JUDGMENT eligible by respondent-himself a clear discrimination and such arbitrary action deserves to be quashed and set aside.
5.2. Mr.Shelat, learned advocate has relied on various orders passed by this Court from the stage of issuance of notice and thereafter by way of interim relief subject plot No.B1/14 admeasuring 200 sq. meter at Gandhinagar, as per order dated 21.12.2006 is vacant even today. The respondent may be directed to allot the very plot.
6. As against above, Mr.Uday Joshi, learned advocate for respondent-GIDC would contend that pursuant to various orders passed by this Court and directions contained therein though the petitioner was not eligible to receive a residential plot admeasuring 200 sq. meter at Gandhinagar by way of compassionate gesture and as per prevailing policy pursuant to circular dated 11.6.2014, the respondent authority was ready to offer a residential plot admearsuring 90 sq. meter in the estate of GIDC. Even if the petitioner is willing, his case could be considered at a place other than Gandhinagar in accordance with law on availability of larger plot area than 90 sq. meters. It is submitted that in declaration form the petitioner has not disclosed correct fact about pending departmental inquiry and, therefore, decision of the respondent-Corporation cannot be said to be in any manner arbitrary, unreasonable or discriminatory as violative of Article 14 Page 6 of 30 HC-NIC Page 6 of 30 Created On Mon Aug 14 13:13:38 IST 2017 C/SCA/8542/2006 CAV JUDGMENT and 16 of the Constitution of India. Even the claim of the petitioner of allotment of residential plot to other employees facing departmental inquiry is not correct. Further, allotment of plot given to one Mr.V.K.Patel, was not included initially in the year 2005 and when he was held eligible as per circular of 18.10.2010 his name was considered accordingly. It is further submitted that the petitioner has made baseless allegations against respondent-Corporation and consideration of Mr.V.K.Patel on the basis of circular dated 18.10.2010 was only because he was in service on the date of circular while the petitioner had already retired on 31.5.2006 and, therefore, case of the petitioner cannot be equated with Mr.V.K.Patel. By relying on paragraph 4 of affidavit in sur rejoinder dated 5.12.2014 it is stated that residential plots admeasuring around 200 sq. meters may be available at Jamnagar or Porbandar or Chitra estate of the Corporation and it can be applied for and subject to compliance of other conditions case of the petitioner can be considered for allotment of the residential plot.
7. Considering the totality of the circumstances and various Government Resolutions and circulars passed by GIDC, the petitioner was inflicted punishment of imposition of fine of Rs.5,000/- as per order dated 20.6.2007 under Rule 40(a) (2) of GIDC (Staff) Regulation 1963 which dis entitled the petitioner from any allotment of residential plot based on discretion of the authority. In Page 7 of 30 HC-NIC Page 7 of 30 Created On Mon Aug 14 13:13:38 IST 2017 C/SCA/8542/2006 CAV JUDGMENT absence of merit, the petition deserves to be rejected.
8. Learned advocate for the respondent has relied on the decision in the case of Jalandhar Improvement Trust v. Sampuran Singh (1999) 3 SCC 494 and Kastha Niwarak Grahnirman Sahakari Sanstha Maryadit, Indore v. President, Indore Development Authority (2006) 2 SCC 604 in support of his submission that entitlement to plots cannot be claimed by ineligible persons because some one other, though not eligible alloted plots and there is no such right with an employee to claim residential plot on the basis of concessions. That allotment contrary to statutory rule cannot be protected by the principle of promissory or equitable estoppal.
9. Before adverting to relevant circulars governing the policy of allotment of residential plot to employee of GIDC, it is necessary to produce relevant orders passed by this Court from the date of issuance of notice and same is important for consideration of the subject, are also reproduced herein below:
Order Dated 8/11/2006 "Learned Advocate Mr. Nayak for M/s. Trivedi & Gupta for Respondent No.1 submits that on the next date of hearing, he will produce circular dated 31st July, 1995. He will also place on record departmental inquiry which has been pending against petitioner at the relevant time Page 8 of 30 HC-NIC Page 8 of 30 Created On Mon Aug 14 13:13:38 IST 2017 C/SCA/8542/2006 CAV JUDGMENT when the application for allotment of land has been made by petitioner and same has been considered by the respondent corporation and decision which has been taken by the respondent corporation not to allot plot or to reject application of petitioner. Therefore, matter is adjourned to 20.11.2006."
Order dated 20/11/2006 "This Court has passed an order on 8/11/2006. A respondent has not comply the order, however, learned advocate Mr. Nayak for M/s. Trivedi & Gupta Association request for some time to place on record affidavit of the respondent, therefore, matter is adjourned on 30/11/2006. Today learned advocate Mr. Farooqui placed on record written submission, copy thereof has been supply to the respondent which has been taken on record."
Order dated 30/11/2006 "1. Heard the learned advocates appearing for the respective parties.
2. The prayer is that petitioner has been denied the allotment of the plot by respondent GIDC.
Therefore, present petition is filed. Along with the petition, the petitioner has produced one circular dated 28.9.2004 (Annexure-B) wherein condition for allotment of the land has been prescribed by GIDC, Gandhinagar.
3. The petitioner has made averments in Ground- D, page-4 that on the basis of GR for allotment of plot, respondent GIDC has made policy for the same by its circular dated 28.9.2004 (Annexure-B) to the petition and in ground-E, it is averred that petitioner has Page 9 of 30 HC-NIC Page 9 of 30 Created On Mon Aug 14 13:13:38 IST 2017 C/SCA/8542/2006 CAV JUDGMENT applied by filling up prescribed form along with security fee on 13.10.2004. On 30.10.2005, draw had taken place for allotment of the land. Affidavit-in-reply is filed by one Shri Bhalchandra Navinchandra Bhatt, working as Manager on 21.7.2006. I have gone through entire affidavit-in-reply which has been filed by one Shri Bhalchandra Navinchandra Bhatt wherein nowhere it is averred that whether circular dated 28.9.2004 is in operation or not, or petitioner is not entitled the benefit of said circular. Even in further affidavit filed by one Shri R.B.Jadeja, Regional Manager, Ahmedabad, no averment has been made that, whether circular dated 28.9.2004 is in operation or not and whether application which was submitted by the petitioner and other similarly situated employees has been scrutinized either under circular 28.9.2004 or 31.7.1995.
4. Learned advocate, Mr.Naik, is not making clear statement before this court that, whether which circular is implemented by GIDC and whether earlier circular dated 31.7.1995 is still in operation after another circular dated 28.9.2004. Therefore, it is directed to the respondent GIDC to file detailed affidavit about claim of petitioner to the effect that, whether applications invited by respondent GIDC on the basis of circular dated 31.7.1995 or on the basis of circular dated 28.9.2004. The applications which were received by respondent GIDC has been scrutinized by GIDC either under circular dated 31.7.1995 or 28.9.2004. Whether any condition is incorporated in circular dated 28.9.2004 to the effect that if departmental inquiry is pending against any employee, he is not entitled the allotment of land. It is also necessary to make it clear that after publishing the circular dated 28.9.2004, whether earlier circular dated 31.7.1995 remained in force or not. If both the circulars, according to respondent GIDC, remained in force, then, Page 10 of 30 HC-NIC Page 10 of 30 Created On Mon Aug 14 13:13:38 IST 2017 C/SCA/8542/2006 CAV JUDGMENT which one is applicable, same has to be clarified in the further affidavit. Thereafter, this Court will consider the matter.
5. Mr.D.M.Sutaria, Assistant Manager on behalf of respondent GIDC, is present in the Court. Learned advocate, Mr.Naik, is not making clear whether which policy is in force because Mr.Sutaria is not able to give any correct and clear answer. Therefore, learned advocate, Mr.Naik, is not able to make any clear statement.
6. In view of the above, matter is adjourned to 6/12/2006."
Order dated 21.12.2006 "Heard the learned advocate Mr. MB Farooqui on behalf of the petitioner, learned advocate Mr. Thaker appearing on behalf of the respondent. This Court has passed an order of 30/11/2006 with a direction to the respondent to file affidavit. Learned advocate Mr.Thaker tendered affidavit on behalf of the respondent - Shri PrashantBhai Ramanbhai Bhatt, who is working as a Manager with the Gujarat Industrial Development Corporation. Copy thereof has been served to the learned advocate Mr. Farooqui. Learned advocate. Farooqui also tendered the rejoinder, both were taken on record. The question involved in the present petitioner required detailed examination by the Court. Meanwhile, it is directed to the respondent Corporation to keep vacant (reserve) one plot till the main SCA is finally decided by this Court.
However, it is directed to the respondent Corporation to produce the relevant record with the clear statement on oath. Whether the allotment of plot as per policy of the respondent Corporation dated 31/7/1995 and 28/9/2004 may in favor of GG Gamit, DD Nai and RN Jani?
Whether at the relevant time when the allotment Page 11 of 30 HC-NIC Page 11 of 30 Created On Mon Aug 14 13:13:38 IST 2017 C/SCA/8542/2006 CAV JUDGMENT is made any departmental inquiry is pending against any them or not, along with the records of allotment in favor of the aforesaid 3 person with detailed? Whether inquiry at the relevant time with the document made pending or not on or before 24/1/2007.
Learned advocate Mr. Thakker waives service of notice of rule on behalf of the respondent."
Order dated 1/9/2014 "Heard learned advocates appearing for the respective parties.
In short, the petitioner an employee of respondent-GIDC is deprived of allotment of a plot for construction of residential house on the ground that at relevant point of time departmental inquiry was pending against him and, for which, he was not eligible. The allegations against the petitioner are of negligence in performance of duty as a representative of department in an inquiry held against fellow employees by not putting certain questions. Those employees were facing allegations for constructing residential house contrary to certain requirements and conditions of allotments but at the same time permission by the competent authority to construct residential houses was granted in accordance with law. It is further a case of the petitioner that throughout his tenure with GIDC the petitioner has performed his duties with utmost diligence and sincerity and on 18th February 2010, the respondent GIDC improved upon its original policy and in a case of similarly situated employees against whom also a departmental inquiry was pending and not allotted residential plot was considered for such an allotment.
There are other grounds for challenge also Page 12 of 30 HC-NIC Page 12 of 30 Created On Mon Aug 14 13:13:38 IST 2017 C/SCA/8542/2006 CAV JUDGMENT available as stated in the petition amended from time to time.
Mr. Kunan Naik, learned advocate for M/s. Trivedi & Gupta however would contend that non-allotment of residential plot to the petitioner is based on sound discretion exercised by respondent-Corporation in view of certain conditions of allotment of residential plots to employees of GIDC who failed to qualify as per conditions laid down in such policies for allotment of residential plots. As the petitioner was facing departmental inquiry and in an application form filled in for seeking an allotment no mention was made about pending inquiry. Learned advocate for GIDC has also relied on various affidavits filed from time to time including justification of the allotment to Mr. V.K. Patel, of residential plot upon completion of departmental inquiry. At the same time a mention is made about Mr. Vaghela an employee of GIDC denied such a residential plot against whom an order of suspension was passed on the ground of corruption.
It is not in dispute that barring above, the petitioner is eligible to be considered for allotment. Prima facie, the stand taken by respondent GIDC appears to be innate hostile discrimination against the employee on a trivial and flimsy ground about pendency of departmental inquiry of being negligent while representing on behalf of GIDC in departmental proceedings for allotment of residential plot to co-employees qua irregular construction contrary to terms and conditions of allotment and discretion is exercised in case of fellow employee almost similarly situated for allotting a plot. Even after reading all affidavits filed from time to time by GIDC it appears that deprivation of residential plot to the petitioner is unjust, arbitrary, discriminatory and violative of Article 14 of the Constitution of India by GIDC, a State within meaning of Article 12 of the Constitution Page 13 of 30 HC-NIC Page 13 of 30 Created On Mon Aug 14 13:13:38 IST 2017 C/SCA/8542/2006 CAV JUDGMENT of India warranting interference of this Court of recording certain findings in exercise of Article 226 of the Constitution of India, however, in view of earlier order of keeping one plot vacant till pendency of this petition, an opportunity is given to respondent GIDC to consider the case for allotment of a plot to the petitioner. The matter is adjourned to 12.9.2014 so as to list before this Court as it is heard substantially."
10. Having heard learned advocates appearing for the parties, perusal of record of the case which include relevant resolutions passed by Government of Gujarat, circular issued by GIDC from time to time and orders passed by this Court since inception of this petition, it is not in dispute that the petitioner has rendered meritorious service of 36 years with respondent except on an occasion for which, imposition of Rs.5,000/- fine appears on record.
11. For better understanding of policy of GIDC for allotment of residential plots to its employees following circulars are relevant.
(1)OA-DM-COER-PA-DS-HSG-31-617-95 GIDC HEAD OFFICE UDYOGBHAVAN GANGHINAGAR 31st JULY, 1995 CIRCULAR Sub :For giving 20% of the land out of the available land to the Corporation employee-officer on higher purchase basis for making cooperative society.
Page 14 of 30HC-NIC Page 14 of 30 Created On Mon Aug 14 13:13:38 IST 2017 C/SCA/8542/2006 CAV JUDGMENT Approved in 361st General Body Meeting dated 16/3/1995 The employees-officers of the corporation are permitted to get land at various places other than Gandhinagar and Mehsana on higher purchase basis, either individually or by making cooperative housing society on following terms and conditions.
1. In cases other than individual requirement the cooperative society shall be constituted and then only the land to be allotted.
2. The members of such society shall be only the employees/officers of the corporation and such employees must have completed continuous 5 years service of corporation and only thereafter the land can be allotted.
3. Any employee or officer during his service tenure shall be entitled to make application for allotment of land only once for one area - estate for either personally or for constituting a housing society.
4. If there is any departmental proceedings pending against any employee or if any employee has received loan for house and if the employee has committed any default in terms and conditions of such loan so given or has defaulted in recovery thereof, shall not be entitled for allotment of the land.
5. The requirement amount of deposit is to be paid as per the demand draft as per the rules of the GIDC for the allotment of such land.
6. As and when any employee or officer give resignation from the corporation or on retirement or dismissed from the services or on death, if the remaining principle amount due and payable shall be first Page 15 of 30 HC-NIC Page 15 of 30 Created On Mon Aug 14 13:13:38 IST 2017 C/SCA/8542/2006 CAV JUDGMENT recovered and any outstanding amount that may be due shall also be paid by such employee. The employee has to give the undertaking in this regard in the form prescribed.
7. After the allotment of the plot within 2 years the house to be constructed and if that is not done the allotment of the plot will be cancelled and 10% of the plot price will be deducted towards administrative charges and balance will be given back.
8. On the allotted plot no transfer or sale will be effected within 5 years of the completion of the construction, without permission. However, it would be permissible to mortgage the plot for getting loans for the purpose of construction thereon from the recognized cooperative institution, nationalized banks.
9. The entitlement and allotment of plot shall be as follows.
Sl. Class Sq.mtr.
1. Class-I 200 sq.mtr (for those having
salaries between 3700 to 5000
or more. )
2. Class -I & II Upto 150 sq. mtr.
3. Class- III Upto 100 sq. mtr.
4. Class -IV Upto 50 sq. mtr.
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10. Before the allotment of land it shall be verified as to whether the concerned employee against his total salary is getting minimum 25% of salary and if on allotment of land if the salary is reduced by 16% then the land shall not be allotted.
11. For allotment of the land the entry shall be made in the register and since the applicant is entitled to get the land only once at one place a care should be taken that he shall not get other land at other place by making other application. Furthermore at the head office H & A branch shall keep a master register. The regional offices shall take adequate care to see that another allotment or second application for different players is not made by concerned employee.
In view of the present circular the previous land allotment circular bearing No. OA/DM /CRI/PA/DA/ HSG/ 54/31/30/77 dated 2/4/1993 shall automatically stand cancelled and the regional office shall make appropriate land allotment to the employee subject to the above terms and conditions, with an intimation to be given to the vice chairman and administrative officer, GIDC Gandhinagar.
Sd/-
Vice Chairman and Administrative Officer, GIDC Gandhinagar.
Copy to: All officers of the Corporation.
(2)GIDC/O&M/CCIR/H&A/POL/65/2004/23 Page 17 of 30 HC-NIC Page 17 of 30 Created On Mon Aug 14 13:13:38 IST 2017 C/SCA/8542/2006 CAV JUDGMENT Gujarat INDUSTRIAL DEVELOPMENT CORPORATION HEAD OFFICE UDYOGBHAVAN GANDHINAGAR DATED 28TH September, 2004 CIRCULAR Sub: Policy for allotment of residential plots in different estate of the corporation to the employees- officers of the corporation.
The corporation had vide circular dated 2/4/1993 had decided to give different residential plot at different estate on higher purchase basis to the employees, officers of the corporation on the basis similar to that of the scheme for allotment to owners and employees of industrial units. Thereafter at different stages the proposal was made to frame policy for allotment of residential plots to employee
- officers of the Corporation and lastly in the 412th general body meeting of the Corporation dated 16th of July, 2003 the scheme regarding allotment of plot to the employees - officers of corporation on Higher Purchase basis were reconsidered and it was suggested that the fresh policy for giving concession and allotment of such plot be made on the lines similar to that of the government. Consequent thereto in the 417th General Meeting of the Corporation held on 5/8/2004 the pending proposal was considered and as per the decision of the corporation, the policy of the state government for allotting residential plot at concessional rate to non transferable to employees- officers, without auction and also the transferrable employees - officers of state government and Panchayat services for similar allotment of plot on concessional rate was accepted as the basis and it was decided that such policy of the government as may be amended from time to time shall be the basis for allotment of the residential plot at concessional rate to the employees of the corporation and the policy was decided as follows :
1) Those employees/officers who have completed continuous 5 years of serves shall be entitled to Page 18 of 30 HC-NIC Page 18 of 30 Created On Mon Aug 14 13:13:38 IST 2017 C/SCA/8542/2006 CAV JUDGMENT get the residential plot at the same place where they are serving.
2) The employee/officers who is applying for such allotment, should not be holding on the date of application and also on the date when the possession is to be handed over, any property i.e. land /house/flat in his own name or in his wife or dependent's name within 8 kms of the place where demand is made for getting the plot.
3) For deciding the area- measurement of the plot entitlement, the basic salary on the date of application shall be the basis for consideration.
4) For deciding the land value for allotting the land at Gandhinagar, 50% of the rates that may be decided by the Government from time to time looking to the development shall be considered and in relation to the rest of the lands to be allotted at other places, 50% of the prevailing rate of relevant residential estate shall be regarded as the allotment land price.
5) Eligibility for different sizes of residential plot to be given on concessional rate ...
Sl. Basic Salary Plot Area Land price
(Sq.mtr)
1 Upto Rs. 9899 90 50% of clause 4
2. 9900 to 13199 135 75% of clause 4
3. 13200 to 14899 200 100% of clause 4
If the employee is getting 9899/- basic salary is not Page 19 of 30 HC-NIC Page 19 of 30 Created On Mon Aug 14 13:13:38 IST 2017 C/SCA/8542/2006 CAV JUDGMENT of Class-I category and if he is applying for the land, instead of 90 sq.mtr. a plot of 135 sq. mtr.
will be provided at 75% cost of clause 4.
If both husband and wife are the employees of corporation and if both are entitled to the plot, in that case the joint income of both husband and wife to be calculated and depending upon such income the relevant plot will be allotted. However, maximum 200 sq. mtr. plots will be allotted and the price as fixed above shall be recovered.
6) Employee/officer during the tenure of his service only can make such application once for allotment of residential plot or land. If any employee/officer has got plot or land in any previous scheme and if such officer or employee has sold away such plot or land so allotted in all such cases such employee/officer shall not be entitled to get plot or land under the present scheme.
7) The residential plot that may be at a particular place to an employee, he shall not be entitled to get alternative plot at any other place or the request for exchange of such plots shall not be acceptable.
8) The residential plot allotted shall be used only for the residential purposes and shall not be used for any other purposes.
9) On the plot that may be allotted the construction thereon shall be completed within a period of three years and it is compulsory to stay at such premises. If for the reasons beyond once control it is not possible to stay or to complete construction in the time bound schedule, the employee has to make application for extension of time in advance together with the relevant document in support thereof, failing which the plot shall be taken back without compensation.
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10) The open plot without construction thereon cannot be transferred and no such application will be accepted.
11) If the holder of the plot to whom it is allotted, is unable to make construction, he has to return the plot.
12) In the event of transfer of the allotted plots the allottee shall not be entitled to execute irrevocable power of attorney and if such fact is noticed, the said allotted plots shall be taken back without any compensation.
13) If any plot together with the construction for special reasons if required to be transferred, in that case the prevalent land rates of the land on the date of such land is to be considered and out of such said price the amount paid by the employee/officers is to be deducted and the difference amount is to be deposited as premium as per the below mentioned column detail. Such sale for special reasons are required to be supported with the relevant documentary support and such permission to be taken before making transfer.
Sl. No. Time Span from The % of
The date of BU premium to be
permission Paid of the difference
amount
1. Within 10 Years 100%
2. After 10 Years & before 15 Yrs. 75%
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3. After 15 years & before 20 Yrs. 50%
4. After 20 years & before 25 yrs 25%
5. After 25 years 0%
Note : If the Building constructed on the allotted plot is sold within 10 years in that case the prevalent market price then the original amount deposited after deducting 10% interest every year, to be deducted from the prevalent transfer price and the difference amount of 100% premium is required to be paid.
14) In relation to the employee/officer the decision to allot the land at concerned place will be made looking to the availability of the residence of the land and no consolidation or amalgamation permission will be given for the plot allotted for residence with other land.
15) The allotment of the land shall be made as per the priority fixed.
16) As per the R&B department of the Government resolution L & D/1088/Development Rate/193/256/ R-1 dated 26/8/2003 the development rate of the Gandhinagar City for all lands is fixed at Rs. 900/- which shall be in force upto 30/11/2005 and every three years new development rate will be considered and fixed by the R&B department as per its resolution dated 29/6/1988 bearing No. L&D-1079-590 Part-3-R and thus for allotment of residential land to employees/officers at Gandhinagar, the development rate as may be fixed by the government from time to time shall be considered.
17) The salary means original basic salary excluding Page 22 of 30 HC-NIC Page 22 of 30 Created On Mon Aug 14 13:13:38 IST 2017 C/SCA/8542/2006 CAV JUDGMENT other perks and allowance.
18) It is decided that the policy for allotment of land for residential purposes to employees/officers shall be subject to the R&B department, Govt. of Gujarat Resolution No. L& D-1095-M-193-1923-R-1 dated 29/3/2001 and revenue department resolution JMN/3901/UOR-4A dated 4/4/2001 and the changes made therein from time to time.
The present policy guidelines by this circular shall be applicable to the corporations employees/officer from the date of this circular and all the concerned officers shall take note of the above decisions and to proceed in accordance therewith.
SD/-
HV Patel Vice Chairman & Administrative officer GIDC Gandhinagar C.C. to : All officers of the corporation for information Sent by : Manager, Establishment.
(3)GIDC/O&M/CCIR/H&A/Allotment Policy /15/2008/ Gujarat INDUSTRIAL DEVELOPMENT CORPORATION HEAD OFFICE UDYOGBHAVAN GANDHINAGAR DATED 18/2/2010 CIRCULAR Sub : For allotment of various residential plots in different Page 23 of 30 HC-NIC Page 23 of 30 Created On Mon Aug 14 13:13:38 IST 2017 C/SCA/8542/2006 CAV JUDGMENT estate of the corporation to the employees /officers of the corporation.
Ref : 1) Circular bearing No. GIDC/O&A/CIR/H&A/POL/ 65/2004/ 13 dated 29/9/2004
2) Circular bearing No. GIDC/O&A/CIR/H&A/Policy/ 65/ 2004/18 dated 22/6/2007 .
In relation to the allotment of the residential plot to the employees/officers of the corporation, various estates of the corporation, various circulars were issued from time to time. Lastly in 417th Meeting of the Corporation held on 5th August, 2004 the policy of the corporation was reconsidered and a resolution No. 90/Allotment / 417/2004 was framed whereby it was decided that the Government Resolution of R&B Dept. bearing No. L & D/1095/M/193/1923/R/1 dated 29/3/2001 and the revenue department of state of Gujarat resolution NO. JMN/3901/R/1 dated 29/3/2001 and revenue department resolution of the government bearing No. JMN/3901/UOR/4A dated 4/4/2001 and its terms and condition which are made from time to time. The corporation has issued relevant instructions for allotment of plots on concessional rates vide circular dated 28/9/2004 and the above factual position is referred to in condition No. 18 of the said circular.
As per the R&B department Govt. Gujarat resolution No. LND/1095/M/193/1923/Part 3/R1, it was decided that the government employees are required to be allotted the plot on concessional rates at a place where such employee or officer is serving and that if there is no residential zone available at that place, in that eventuality the allotment of residential plot to be made in the nearby estate where exists the residential zone and such deductions are given in the form of circular and considering the same in relation to the employees/officers of the corporation for allotment of residential plots and its policy, following clarifications have been made.
1. In relation to those employees/officers serving with the corporation whose application for allotment of residential plot is pending and who are deprived of allotment of residential plot on account of pendency of departmental inquiry at relevant time, such employees - officers shall be allotted the Page 24 of 30 HC-NIC Page 24 of 30 Created On Mon Aug 14 13:13:38 IST 2017 C/SCA/8542/2006 CAV JUDGMENT residential plot as per the prevailing policy of the corporation as per policy dated 28/9/2004, as per their priority list and to complete such allotment accordingly.
2. If after making of the application if the employee is under suspension in those cases the suspension should not be regarded as a penalty and the suspended employee/officer of the corporation being in service of the corporation and if such employee/officer is meeting with other conditions of the above referred circular in that case they shall be regarded as entitled to allotment of residential plots.
Over and above this, those employee/officers serving with the corporation and whose application for allotment of residential plots, have remained pending and have been deprived of such allotment, on account of departmental inquiry/suspension, in that case all such employees - officers should be allotted the residential plots for which they are eligible at the place they are entitled to, on concessional rate as per the priority listing, as per the corporation circular dated 28/9/2004 and this policy should be implemented on and from the date of this circular. Furthermore, no allotment of plot of area bigger than that which an employee is eligible of should be allotted and that all the allotment officers shall strictly implement the present instructions and the relevant Estate planner while making new provision for residential plot shall plan such area as per the prevalent policy of the corporation. The officers are directed to issue the acknowledgement of having received this present circular by writing about such receipts to General Manager (Allotment) and in the event of any clarification or difficult in implementation, they shall contact General Manager (Allotment).
Sd/-
Vice Chairman & Administrative Officer Copy to :1) All allotment officers of the Corporation.
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2) Vice Chairman of Officers' Association, GIDC Head office Udyogbhavan Gandhinagar- for info.
3) General Secretary, GIDC Head office Udyogbhavan Gandhinagar- for info
12. That policy of GIDC dated 5.8.2004 which is in consonance with the policy of the State Government for allotment of residential plots to employees of the corporation, without auction, at concessional rates and for that three basic eligibility criteria appear as under:
"1. the concerned employee/officer of the corporation who as completed 5 years of service and wherever he is serving he will be entitled to get such residential plot at that place. (at that time the petitioner was serving at Gandhinagar and had completed 5 years of service and was not the post of Incharge General Manager, GIDC at Gandhinagar and therefore entitled to get plot at Gandhinagar when he applied he was serving at Gandhinagar.)
2. The concerned employee or officer of the corporation on the date of application and when he is given possession of the residential plot, he should not be holding in his name or his wife or dependants name any house or land or flat within periphery of 8 kms from the place he opted.
3. Since the pay scale of the petitioner at Page 26 of 30 HC-NIC Page 26 of 30 Created On Mon Aug 14 13:13:38 IST 2017 C/SCA/8542/2006 CAV JUDGMENT that point of time was 13200-14899, the entitlement of open land of 200 sq. meters as per condition No.5."
13. The above circulars issued by GIDC based on policy decision taken by the Government of Gujarat with respect to allotment of residential plots to its employees without holding an auction reveal that initially there was a clause 4 in circular dated 31st July 1995 making an employee ineligible for allotment of residential plot in case of departmental proceedings are pending but no such clause is available in subsequent circular dated 28.9.2004. Of course, a declaration -cum-undertaking to be filed by an employee provided a column to disclose the fact about pendency of the inquiry pending against an employee who is desirous of allotment of residential plot. In the facts of this case, the petitioner no doubt filled in the above column with answer "No" but also made it clear that pendency of inquiry can be verified from the concerned department of GIDC. If we peruse GIDC (Staff) Regulation, 1963, Rule 40 prescribes penalties to be imposed upon an employee of GIDC for good and sufficient reasons and it is divided into two categories namely minor and major penalties. Penalty of fine is a minor penalty, for which, procedure is to be followed under Rule 40.A-1 of the Rules. Admittedly, before issuance of charge-sheet, no opportunity was given to the petitioner to make any representation against proposed action and the fact Page 27 of 30 HC-NIC Page 27 of 30 Created On Mon Aug 14 13:13:38 IST 2017 C/SCA/8542/2006 CAV JUDGMENT remains that the petitioner was performing his duties as a representative of the department when one Mr.Jani, Sr. General Manager of GIDC who was served with charge- sheet on 29.11.2003 for the charges (i) that he had not declared all properties held by him to the management (ii) residential plot No.2D was allotted to Mr.Jani at Vapi and another Plot 3D was alloted to Mr.Pandya, another employee, both admeasuring 200 sq. mtrs and that Mr.Jani had constructed bungalow making a boundary between 2D and 3D as common wall as if it is a one plot, however, the plans for which construction was sanctioned by Executive Engineer, GIDC, Vapi and (iii) further Mr.Jani has used his influence for allotment for residential plots at Vapi to one officer Mr.Desai and Mr. Kalgaukar. Even after petitioner, another inquiry officer was appointed, Mr. Jani was found not guilty of the charges (ii) and (iii). Thereafter another presenting officer was appointed who also exonerated Mr.Jani for charges No.(i) and (ii) and finally Mr. jani was exonerated from charges No.(ii) and
(iii) and thereafter petitioner was finally imposed punishment of Rs.5000/- as a penalty for not asking certain questions in the capacity of presenting officer to Mr.Jani. This would reveal that no major misconduct is attributed much less is proved against the petitioner and somehow the petitioner is harassed and deprived of his legitimate right to get allotment of residential plot having 36 years of meritorious service with GIDC. That ground pressed into service by respondent allotment of residential Page 28 of 30 HC-NIC Page 28 of 30 Created On Mon Aug 14 13:13:38 IST 2017 C/SCA/8542/2006 CAV JUDGMENT plot to one Mr.V.K.Patel, Manager against whom also inquiry was pending pursuant to circular dated 18.2.2010 and he was in service while the petitioner had already retired and was therefore, not eligible again amounts solitary discriminatory treatment to the petitioner depriving of his otherwise legitimate right available to employees of GIDC. So far as circular No.11.6.2014 is concerned, it is only a clarificatory circular and eligibility of the petitioner for allotment of residential plot was in the year 2004 for 200 sq. mtrs of plot and not for 90 sq.mtrs. Therefore, action of respondent GIDC of not allotting the residential plot of 200 sq. mtrs at Gandhinagar to the petitioner is nothing but an exercise of powers in arbitrary, discriminatory and unreasonable manner violative of Article 14 of the Constitution of India and such action deserves to be quashed and set aside and it is accordingly quashed and set aside.
14. That various orders passed in this writ petition from the date of issuance of notice would reveal that how respondents had conducted before this Court and time and again either kept silent or came out with different version in the affidavits and none of the reason or ground stated in the affidavit can be said to be exercise of powers by respondent within four corners of law which may dissuade this Court from passing any order. Accordingly, it is held that the petitioner has made out a case to grant the reliefs prayed in the writ petition and therefore, the Page 29 of 30 HC-NIC Page 29 of 30 Created On Mon Aug 14 13:13:38 IST 2017 C/SCA/8542/2006 CAV JUDGMENT respondents herein is directed to allot a residential plot B/1/14 admeasuring 200 sq. mtrs. at Gandhinagar and so reserved by interim order dated 21.12.2006 within three weeks from the date of receipt of writ/order of this Court.
15. Petition is allowed with cost quantified to the extent of Rs.25,000/- to be paid to the petitioner within three weeks from today. Rule is made absolute to the aforesaid extent.
16. In view of the order passed in writ petition, Civil Application does not survive and accordingly stands disposed of.
(ANANT S.DAVE, J.) SMITA Page 30 of 30 HC-NIC Page 30 of 30 Created On Mon Aug 14 13:13:38 IST 2017