Gujarat High Court
Babubhai Meghajibhai Shah vs State Of Gujarat & 3....Opponents on 30 March, 2017
Author: R. Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/WPPIL/214/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 214 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE
MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowedYes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy ofNo
the judgment ?
4 Whether this case involves a substantial question ofNo
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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BABUBHAI MEGHAJIBHAI SHAH....Applicant
Versus
STATE OF GUJARAT & 3....Opponents
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Appearance:
MR BHARAT T RAO, ADVOCATE for Applicant
MR KAMAL B TRIVEDI, ADVOCATE GENERAL assisted by MS SANGEETA K
VISHEN, ASSISTANT GOVERNMENT PLEADER for Opponents No. 1 - 2
NOTICE SERVED for the Opponent No. 3
MR MIHIR JOSHI, SENIOR ADVOCATE for M/S WADIAGHANDY & CO,
ADVOCATE for Opponent No. 4
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Page 1 of 60
HC-NIC Page 1 of 60 Created On Sun Aug 13 14:19:36 IST 2017
C/WPPIL/214/2015 CAV JUDGMENT
CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH
REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date :30/03/2017
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY)
1. This writ-petition is filed by way of Public Interest Litigation, challenging the Resolution No. MOU-10-2010-4244-S, dated 18th March 2011 passed by the Government of Gujarat through Industries and Mines Department, by which the Government has allotted 37,388 sq.mtrs (4,02,294.88 sq.ft) of land covered by Final Plot Nos. 178, 179, 180 and 181 of T.P. Scheme No.2, situated in village Rajpur- Hirpur, Taluka-City, District-Ahmedabad, to 4th respondent M/s. S.E. TransStadia Pvt Ltd on lease basis for a period of 35 years for construction of multipurpose Sports Stadium and Recreation Complex.
2. The prayers sought in the petition read as under:-
"A. That Your Lordships will be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, quashing and setting the Resolution No. MOU-10-2010-4244-S dated 18.3.2011 issued by Industries and Mines Department allotting land bearing 37,388 sq.mtrs. (4,02,294.88 sq.ft.) situated at Mouje Rajpur-Hirpur, Taluka City, in T.P.Scheme No.2, Final Plot Nos. 178, 179, 180 & 181 in Kankaria area, Page 2 of 60 HC-NIC Page 2 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT Ahmedabad (land of Old Abad Dairy) to the respondent no.4 for the purpose of setting up Multi-purpose Sports Stadium and Recreation Complex at a throw away price of token rent of Rs.1/- per sq.ft for a period of 35 years though the Revenue Department, Govt. of Gujarat has valued the land in question at Rs.144.50 crores by State Valuation Committee in its meeting held on 6.7.2010 and all consequential actions taken pursuant thereto, for the reasons stated in the Memo of Petition and in the interest of justice.
B. Pending admission, hearing and final disposal of this petition, to stay the execution, implementation and operation of the Resolution No. MOU-10-2010-4244-S dated 18.3.2011 issued by Industries and Mines Department allotting land bearing 37,388 sq.mtrs.(4,02,294.88 sq.ft.) situated at Mouje Rajpur-Hirpur, Taluka City, in T.P. Scheme No.2, Final Plot Nos. 178, 179, 180 & 181 in Kankaria area, Ahmedabad (land of Old Abad Dairy) to the respondent no.4 for the purpose of setting up Multi-purpose Sports Stadium and Recreation Complex at a throw away price of token rent of Rs.1/- per sq.ft for a period of 35 years through the Revenue Department, Govt. of Gujarat has valued the land in question at Rs. 144.50 crores by State Valuation Committee in its meeting held on 6.7.2010 and all consequential actions taken pursuant thereto and restrain the respondent no.4 from proceeding further with the execution of the project, for the reasons stated in the Memo of Petition and in the interest of justice.
C. To grant ad-interim relief in terms of Para-12(B) herein above.
D. Such other and further relief that is just, fit and expedient in the facts and circumstances of the case may be granted."
3. The Resolution No. MOU-10-2010-4244-S dated 18.3.2011, Page 3 of 60 HC-NIC Page 3 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT which is the subject-matter of challenge in this petition reads as under:-
Page 4 of 60
HC-NIC Page 4 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT "Allotment of 4,02294.88 square feet land of Ahmedabad city on lease basis to S.E.Transstadia Private Limited Company, Mumbai for construction of multipurpose sports stadium and recreation complex.
Government of Gujarat, Department of Industries and Mines, Resolution No.MOU-10-2010-4244-S Sachivalaya, Gandhinagar.
Date : 18-3-2011 READ:(1)Letter No.GIDB-55-EC-SEC-2010-814 dated 26-4-
2010 from Gujarat Infrastructure Board,
Gandhinagar.
(2)Letter No.GIDB-55-EC-SEC-20 I 0-827 dated 11-5-
2010 from Gujarat Infrastructure Board,
Gandhinagar.
(3)General Administration Department's confidential letter no.MBP-10-2011(10)KU dated 24-2-2011.
Preamble:
With reference to the Memorandum of Understanding signed between Government of Gujarat, Tourism Corporation of Gujarat Limited and S.E.Transstadia Private Limited Company, Mumbai in the year 2009 in the field of sports activities by constructing a large, multipurpose sports stadium and recreation complex with a novel and unique concept being first of its kind in India on the land of old Abad Dairy at Kankariya, Ahmedabad city, the project details and Concession Agreement to be signed with this company were discussed at length by Executive Committee of the Gujarat Infrastructure Development Board (GIDB), Gandhinagar in its 52nd to 55th meetings held on 11/2/2009, 16/9/2009, 30/12/2009 and 27/4/2010. The meeting of Executive committee of Gujarat Infrastructure Development Board (GIDB) has accorded its consent for grant of Iand on 35 years lease basis to S.E. Transstadia Page 5 of 60 HC-NIC Page 5 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT P.. Ltd. Co., Mumbai under provisions of section 10-A of G.I.D. (Amendment) Act, 2006 and also for the Concession Agreement to be signed with them. The matter was under active consideration of the Government for allotment of 37,388 sq. mtrs.
(4,02,294.88 sq. feet) lands of Final Plot No.I78, 179, 180 and 181 of T.P.-2 of village Rajpur-Hirpur, Taluka City of Ahmedabad City to S.E. Transstadia Pvt. Ltd. Co., Mumbai on lease basis for a period of 35 years for construction of multipurpose stadium and recreation complex.
RESOLUTION After due consideration, it is hereby resolved to grant 37,388 sq. mtrs. (4,02,294.88 sq. feet) lands of Final Plot No.178, 179, 180 and 181 of T.P.-2 of village Rajpur-Hirpur, Taluka City of Ahmedabad City on annual rent of Rs.4,02,234.88 paise at the token rate of Re. I, per sq.feet per annum on lease basis for a period of 35 years from the date of handing over possession of the land. It is also resolved that the amount of annual rent shall be revised at every three years by increasing 10% rent over previous year rate.
Salient features of this project are as stated under:-
(I) A large multipurpose sports stadium and recreation complex is proposed to be constructed which will be first of its kind sports complex in. India where cultural and social events will also be organized in addition to sports activities.
(2) Professional sportsmen of the State will be groomed by imparting them comprehensive training and will be trained for participating in international level tournaments. Doctors and trainers will be appointed for stadium and training activities.
(3) A part of the stadium wiH be automatically converted into indoor stadium from outdoor stadium within six minutes of pressing a switch.
(4) State, National and international level sports events and championships in outdoor sports like football, Page 6 of 60 HC-NIC Page 6 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT hockey, volleyball. basketball, athletics, rugby and boxing and indoor sports such as swimming, badminton, table tennis, squash, billiard, lawn tennis. basket ball etc. will be organized and training programs for the same will also be organized in this complex.
(5) Training sessions will be organized in consultation with representatives and sponspersons representing different sports at international level. Under this arrangement. infrastructure facilities will be created promising youth and sportsmen at city and village levels. (6) The company will spend eve, year 2% of its gross income (as per Concession Agreement) OR an amount of Rs. 2 crores whichever is higher, after two years of its commercial operation date (COD) for development of sports activities in Gujarat which shall include training, nutrient food, sports medicine and development of infrastructure facilities for sports.
The above land is hereby granted on lease for a period of thirty five years on the following conditions:-
(1) This land will not be transferable or converted to any other purpose.
(2) The land shall be put to use only for the purpose for which the Iand is allotted.
(3) This land will not be transferred by sale, mortgage or without prior permission of the District Collector, Ahmedabad.
(4) This land will be of New, Impartible, Restricted tenure.
(5) A Concession Agreement will be signed with this company for development of project on "Design, Build, Finance, Own, Operate and Transfer" (DBFOOT) mode. (6) The mandatory construction as mentioned in Concession Agreement shall be completed by the company within 36 months.
(7) Quarterly progress report of construction and annual financial report of activities of the company shall be furnished to the Commissioner (Tourism), Gandhinagar as per condition of the Concession Page 7 of 60 HC-NIC Page 7 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT Agreement.
(8) This entire project is to be executed on the "Hub and spoke,- model" basis.
(9) Above lease period may be extended for a further period on mutual agreement of both the parties. (10) The company shall have to also abide by the conditions as stipulated in the Concession Agreement executed between Commissioner of Tourism, Udhyog Bhavan, Gandhinagar and the company.
(11) In case of any dispute arises in respect of this Concession Agreement, same shall be decided as per provisions of sections of the Concession Agreement. (12) The Commissioner, Tourism, Udyog Bhavan, Gandhinagar shall have to take action with regard to signing Concession Agreement with the company for this project. After executing the Concession Agreement and receipt of rent amount, possession of the land on as is where is basis shall be handed over to the company. The Commissioner, Tourism, Udyog Bhavan, Gandhinagar shall be responsible to monitor compliance of conditions of the Concession Agreement signed with the party for this project and conditions of the Resolutions.
This resolution is passed with approval of the Government given on 24.2.2011.
By order and in the name of Governor of Gujarat, Sd- (Illegible) 8/3/2011 (M. J. Patel) Deputy Secretary, Department of Industries & Mines."
4. As stated in the petition, the petitioner is resident of village- Lakadiya, Taluka-Bhachau, District-Kutch, and was Member of Legislative Assembly for 5 terms, and also Member of Parliament. The petitioner was also Minister in various capacities in the Government of Gujarat and has handled the portfolios of Water Supply, Finance, Page 8 of 60 HC-NIC Page 8 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT Planning, etc. The case of the petitioner as stated in the petition is as under:
4.1. The land covered by final plot nos. 178, 179, 180 and 181 of Mouje Rajpur-Hirpur, Taluka-City, District-Ahmedabad in T.P. Scheme No.2 of Ahmedabad in Kankaria area, admeasuring 37,388 sq.mtrs.
(4,02,294.88 sq.ft.) was originally allotted to Abad Dairy, owned by the Gujarat Dairy Development Board. As Abad Dairy was ordered to be wound up, the Government of Gujarat had taken over the said Dairy and paid all the dues of the workers incurring huge expenditure for such settlement. Consequently, the Government of Gujarat, Agriculture and Cooperation Department had taken over the land of the said Dairy on 3.7.2007 from the Gujarat Dairy Development Board and in turn, the said land was handed over to the Revenue Department, Government of Gujarat. Thereafter, vide Order No. JMN- 162010-85-A1, dated 20.8.2010, the Revenue Department handed over the said land to the Collector, Ahmedabad. It is the case of the petitioner that the said land which is allotted to the 4th respondent is valuable land and the Government has distributed public largess without putting it to auction by causing financial loss of about Rs.300 Crores, contrary to the opinion of the Revenue Department. It is alleged that the land in question is situated on the main road in a thickly populated area, i.e. Kankaria, Maninagar, and had the said land been sold by public auction, the Government would have earned huge profit, but the said land was allotted to the 4th respondent on Page 9 of 60 HC-NIC Page 9 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT token rent of Re. 1/- per sq.mt per year, without inviting public offers. It is the allegation of the petitioner that such grant of land is illegal and contrary to the principles of law settled in various judgments of the Hon'ble Supreme Court. It is further alleged that the project which is entrusted to 4th respondent is not new or exclusive project and such type of sports complex can be constructed by anybody if huge chunk of land is allotted. The petitioner has referred to stadiums already constructed in the city of Surat, Indore etc. It is alleged that such allotment of land to 4th respondent is contrary to the opinion given by the Revenue Department, since according to the opinion of the Revenue Department, in the year 2010, the land was valued at Rs. 144 crores and the Revenue Department also opined to charge 15% rent of the market value every year which will fetch the rent of Rs.21,67,56,930/- per annum. In spite of the same, the land was allotted without fixing the rent as recommended by the Revenue Department, on nominal rent at Re.1/- per sq.mt per year. It is the case of the petitioner that such kind of allotment can only be made by way of methods such as Swiss Challenge, which is acceptable and being followed by all the government authorities across India and even the Apex Court has upheld such method. It is alleged that without adopting such method of Swiss Challenge for distribution of public largess, the respondent-State of Gujarat has allotted valuable land in favour of the 4th respondent illegally and arbitrarily. The petitioner has made reference to the provisions of the Gujarat Infrastructure Development Act, 1999 as amended by Act No. 18 of Page 10 of 60 HC-NIC Page 10 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT 2006. While referring to the provisions of Sections 9 and 10A of the Gujarat Infrastructure Development Act, 1999 ("GID Act" for short), it is contended by the petitioner that only projects of innovative nature or projects which involve proprietary technology or franchise can fall under Schedule-III of the GID Act, but in the absence of any innovation in the project, which is designed by the 4th respondent, the land was allotted to 4th respondent contrary to the provisions of the said Act. The petitioner has made reference to the judgments of the Hon'ble Supreme Court in the petition, which he seeks to refer in support of the plea that construction of the sport complex undertaken by the 4th respondent at the cost of public revenue should not be allowed to be continued. According to the petitioner, the petitioner has come to know about the allotment of land in question to 4th respondent at a belated stage in the year 2014.
5. Affidavit in reply is filed on behalf of the 1st respondent-State of Gujarat, sworn by the Joint Secretary (Tourism), Industries and Mines Department. While denying various allegations made by the petitioner, it is pleaded that the petition is not maintainable as there is no violation of any statutory provision in the matter of allotment of land in favour of 4th respondent for TransStadia project, which is multi-purpose project designed and executed according to the standards laid down by International Association/Federation in the respective sports. It is pleaded that as the decision was taken in the year 2011, the petition, as filed, suffers from the vice of delay and Page 11 of 60 HC-NIC Page 11 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT laches. In support of this plea, it is stated in the reply that Memorandum of Understanding between the parties was executed during the Vibrant Summit in the year 2009 for constructing the Multi- purpose Sports Stadium and Recreation Complex, and the Government has allotted the land to 4th respondent vide Government Resolution No. MOU-10-2010-4244-S, dated 18.3.2011, more than five years back, whereas the captioned petition by way of public interest litigation has been filed in the year 2015. It is further stated that the whole project of setting up robust sports infrastructure has been approved after examining the detailed study and feasibility, and it is the policy decision of the State Government involving economic and financial expertise, and therefore, there is no reason to interfere with the impugned Resolution. It is further pleaded in paragraphs 5.1 to 5.13 of the affidavit in reply as under:
"5.1 During the mega-summit of entrepreneurs in the Vibrant Gujarat Investors Global Summit held in the month of January, 2009, various Memoranda of Understanding ('MoU' for short) were executed, including the execution of the MoU dated 12.1.2009 between the Tourism Department of the State Government on the one hand and the respondent No.4 on the other, for setting up multi-purpose Stadium-cum-Recreation Complex at Kankaria, Maninagar, Ahmedabad ('the Project' for short). However, the said MoU had reflected the broad understanding between the parties, without there being any firm commitment.
5.2 Thereafter, the respondent No.4 vide its letter dated 30.1.2009 moved a proposal for an Eco-Friendly Multi-Purpose Stadium of a potential capacity along with detailed project report to Gujarat Infrastructure Development Board ('GIDB' for short) constituted under the provisions of the Gujarat Infrastructure Development Act, 1999 ('the Act' for short), by inter-alia stating that the project is an innovative project Page 12 of 60 HC-NIC Page 12 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT involving proprietary technology patented worldwide. The relevant portion of the said letter is reproduced hereunder:
"the project is an innovative project that involves proprietary technology patented worldwide, for which we have exclusive license for this project. Our partners Stadiarena have global intellectual property rights in relation to the technology. The benefits of the technology are detailed herein. The project uses a "1st in the World" model that allows you to transform an outdoor stadium into an indoor arena at a press of a button in 6 minutes. This space creation through dropping Stadi-Doors and retracting the seats, allows stadium utilization to increase from a meager 2% per annum to 50% per annum. I have attached a SWOT analysis for the project as well."
5.3 In view of the above, the proposal of the respondent No.4 relating to development of the project came to be put up in the meeting of the 52nd Executive Committee of GIDB held on 11.2.2009. After deliberations, it was decided that the Secretary, Tourism, may work out further details of the project and examine its feasibility and submit a proposal to the Executive Committee of the GIDB for further course of action. Thereafter, the Chief Secretary of the State called a meeting on 23.6.2009, wherein various pros and cons of the matter were discussed.
5.4 Apropos the Minutes of the 52nd Executive Committee Meeting of GIDB, the Secretary, Tourism, Industries and Mines Department, having worked out further details of the project in the matter of its feasibility, submitted a proposal vide letter dated 16.9.2009 addressed to the Executive Committee of GIDB.
5.5 Thereafter, on 16.9.2009, the 53rd meeting of the Executive Committee of GIDB was held wherein the Chief Executive Secretary of GIDB briefed the Executive Committee about the course of action suggested in the meeting dated 23.6.2009 held under the Chairmanship of the Chief Secretary. Ultimately, it was suggested by the Executive Committee in the said meeting to get more details from the respondent No.4, so as to enable the Government/GIDB to take further course of action.
5.6 Pursuant to the aforesaid development, the respondent No.4 was asked by the Chief Executive Officer of GIDB to Page 13 of 60 HC-NIC Page 13 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT provide more details about the characteristics of the project vide letter dated 23.7.2009 and in response thereto, the respondent No.4 vide its letter dated 18.8.2009 submitted the desired details.
5.7 Thereafter, in the 54th meeting of the Executive Committee of GIDB held on 30.12.2009, the Chief Executive Officer of GIDB briefed the Executive Committee about the background of the proposals in the project in question and informed that several rounds of meetings had taken place in that regard. This apart, the representative of respondent No.4 was also requested to make a detailed presentation on the salient features of the project before the Executive Committee. During the course of the said meeting, the Chief Secretary pointed out that one of the objectives behind creating such infrastructure is to develop the sports culture in the State, which should extend to the rural areas in equal measure, and that apart from the technological aspect of the said proposal, the social/rural aspect was also very important, which needed to be strongly built as a part of the project. Ultimately, the Executive Committee decided to accord in-principle approval to further process the proposal of the respondent No.4 under section 10A of the Act, while deciding to constitute a Committee consisting of: (i) the Principal Secretary Industries & Mines Department; (ii) the Principal Secretary (Expenditure), Finance Department; (iii) the Secretary (Tourism), Industries & Mines Department; and (iv) Chief Executive Officer, GIDB, followed by further decision that "the Agenda item may be submitted to the GIDB for finalizing the draft concession agreement under section 10A of the Act as finalized by the committee."
5.8 The strata of the deliberations which took place in the above meeting in sum and substance lie in the discussion that sports-related infrastructure unlike other infrastructure, is not a paying proposition for the investors to expect a return in their investment and that therefore, sports development being a prime need in our country which makes it eligible to be considered under the provisions of the Act, should be given a push, more particularly when the sports-related projects like the project in question is an innovative project for which the respondent No.4 possessed an exclusive access to the state-of- the-art world class technology. Thus, it was after detailed and in-depth study, scrutiny and deliberations of the proposal of the respondent No.4 that eventually it was given in-principle approval.
5.9 The aforesaid development paved way for further progress, whereby in the 55th meeting of the Executive Page 14 of 60 HC-NIC Page 14 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT Committee of GIDB held on 27.4.2010, various decisions including a decision to recommend the draft Concession Agreement to the Board of GoG for final approval was taken. In the said meeting, the following decisions were taken:
"(i) It was decided that the State Government's approval may be obtained for the project under section 10A of the GID (Amendment) Act, 2006.
Permission may also be obtained by the Tourism Department from the State Government for transfer of land to the Licensor free from all encumbrances.
(ii) It was also decided that prior to execution of the concession agreement, Licensor (Tourism Department) may ask the project proponent to submit the Detailed Project Report for its approval.
(iii) It was decided that the clause 32.3.2. which provides for the termination payment on Authority's default may be amended. Instead of 150% of the adjusted equity the clause shall provide for 100% adjusted equity.
(iv) The clauses 3.1.5 (l) and (p) shall be deleted.
Instead the following shall be inserted
appropriately.
"Licensor shall facilitate the Licensee in getting various Government approvals as per prevailing policy and / or as deemed necessary in the situation."
(v) It was decided to recommend the draft concession agreement to the Board/GOG for final approval."
5.10 Before proceeding further, I may, at this stage, set out hereunder the provisions of section 10A of the Act as well as the Schedule-III annexed thereto, as under:
"10A (1) Notwithstanding anything contained in section 9 and 10, a person other than State Government, Government Agency or specified Government Agency, may submit a proposal and proposed concession agreement for direct negotiation to the State Government, Government Agency or the specified Government Agency for Page 15 of 60 HC-NIC Page 15 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT any of the project specified in Schedule III.
(2) If the State Government, Government Agency, or, as the case may be, the specified Government Agency is satisfied that the project is of a nature specified in Schedule III, it may, -
(a) consider the proposal from all aspects (including technical and financial) and if necessary modify the same in consultation with the person who has submitted the proposal and the proposed concession agreement, and
(b) submit the proposal and the proposed concession agreement to the Board, if the cost of the project exceeds the limit provided by regulations.
(3) On acceptance of the recommendation of the Board made under subsection (2) of the section 5, the State Government, Government agency or, as the case may be, the specified Government agency may enter into a concession agreement with a person who has submitted the proposal under sub-
section (1).
Schedule-III to the Act is set out hereunder:
"SCHEDULE III"
(See sub-section (1) of section 10A) PROJECTS OF SPECIAL NATURE
1. A project which is innovative or involves proprietary technology or franchise which is exclusively available with the person globally.
2. A project wherein competitive public bidding as provided in section 9 has failed to select a developer.
3. A project to provide social services to the people including community services and public utilities.
4. An infrastructure project which is an essential link for another bigger Page 16 of 60 HC-NIC Page 16 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT infrastructure project owned or operated by the same person".
5.11 After the approval of the project of the respondent No.4, the file was processed through various Departments and ultimately the same came to be submitted to the Cabinet for approval of the proposal.
5.12 After detailed deliberation, the Cabinet took a decision to sanction allotment of land bearing Final Plot Nos. 178, 179, 180 and 181, admeasuring 37388 sq. mtrs. of TP Scheme No.2 situated in village Rajpur-Hirpur of City Taluka, in favour of the respondent No.4 for the project in question.
5.13 In view of the above, the Government in its Industries & Mines Department, sanctioned allotment of the land in favour of the respondent No.4 for setting up the project in question, vide Government Resolution dated 18.3.2011.
5.1. It is stated that pursuant to such Resolution, the Government addressed letter dated 29.7.2011 to the Collector, granting permission to transfer the land to 4th respondent. Consequently, the Collector, by order dated 23.8.2011 granted permission to the Commissioner of Tourism to transfer the land in favour of 4th respondent and ultimately, after approval in the Cabinet in its meeting held on 30.5.2012, Concession Agreement came to be executed between the office of the Commissioner of Tourism and 4th respondent on 14.6.2012. As per the said Concession Agreement, the State Government continues to have the enfolding power to ensure that 4th respondent does not deviate from any contractual obligation. According to the 1st respondent, the project which is designed is multi-purpose project and executed according to the standards laid down by the international associations/federations in their respective sports. The project is based on 'Hub and Spoke' model, where Page 17 of 60 HC-NIC Page 17 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT Ahmedabad will be the Hub and separate spokes will be developed in the regional centres (spokes). This will be carried out for professional talent scouting, providing training facilities, organizing competitions and tournaments at different levels, i.e. inter-school, inter-district and inter-state tournaments, thereby building robust sports infrastructure within the State of Gujarat. With the aforesaid plea, it is the case of the 1st respondent-State that auction is not a constitutional mandate and there is no such constitutional imperative in the matter of economic policies of the State. So long as the action of the government conforms to the norms which are rational, informed with reasons and guided by public interest, such action cannot be interfered with by this Court. While denying the allegation of the petitioner that the project which is undertaken by the 4th respondent is not new and innovative project, it is averred that such project is innovative and world-class one for which the 4th respondent possesses an exclusive access to state-of-art world class technology and can lead to social and community development, and the illustration cited by the petitioner regarding Surat Municipal Corporation is not comparable with the project of 4th respondent. It is further pointed out that the project in question provides the following facilities, i.e., mandatory sports facilities and supporting non-sport facilities and the functional areas:
(i) Multipurpose convertible stadium for indoor and outdoor sports. The complex will have retractable stadium which can seat approximately 20,000 people when fully expanded and Page 18 of 60 HC-NIC Page 18 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT part of it can convert into a 40,000 sq.ft indoor pillar-less air-
conditioned arena which houses around 4,000 people. The indoor and outdoor stadium together will have capacity of approximately 20,000 seats;
(ii) Convertible indoor hall (StadiArena) having capacity of 4,000 seats will bring in international conventions, exhibitions, conferences etc;
(iii) Sports Academy (Coaching, Training, Talent Hunting etc.);
(iv) Sports Club;
(v) Sports Medicine & Sports Science Center;
(vi) Fitness Center;
(vii) Children's Edutainment Areas;
(viii) Hospitality Areas;
(ix) Other Commercial spaces and
(x) Parking facilities.
5.2. According to the 1st respondent-State, it is mandated that 72.91% of the built-up area should be used for sports activities only, and the aforesaid project is based upon StadiArena Technology which is exclusively available to the respondent from U.K's StadiArena. It is pleaded that this is the first of its kind stadium with such a technology in India.
5.3. Referring to the proposal which is processed by the Gujarat Page 19 of 60 HC-NIC Page 19 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT Infrastructure Development Board (GIDB), which is the instrumentality of the State and further opinion of the Revenue Department of charging rent, it is pleaded that such opinions are only advisory in nature, and in the present case, the Cabinet, while accepting the proposal of the GIDB and the Industries and Mines Department took a decision to grant land on token rent of Re.1/- per sq.ft per annum on Design, Build, Finance, Own, Operate and Transfer (DBFOOT) basis. It is pointed out that the State will be getting multi- purpose convertible stadium for indoor and outdoor sports with the capacity of 20,000 people when fully expanded and part of its convertible to 40,000 sq.ft indoor pillar-less Air-conditioned Arena. Further, referring to the model of the project, it is stated that the project is based on `hub and spoke' model, which seeks to take cutting edge sports development down to the grass-root level. According to the 1st respondent State, the hub at Ahmedabad will provide a cluster of facilities with a flexible stadium at the centre and will undertake hosting of various sports activities of State at national and international level. The spokes (at regional level) viz. Vadodara, Surat, Bhuj, Jamnagar, Bhavnagar and Rajkot seek to provide facilities by building new stadia to conduct sports events. It is further stated that the land is granted on lease for 35 years, subject to the conditions that, the land cannot be alienated in any manner or used for any purpose other than for which it is granted and prior permission of the District Collector is necessary for any alienation or creation of charge or lease, and that the land is granted on new and Page 20 of 60 HC-NIC Page 20 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT impartible tenure. Thus, in view of the same, it is pleaded that interest of the State is sufficiently taken care of by imposing appropriate conditions and as such, the allegation of the petitioner that the Government will lose revenue, as pleaded, deserves to be discarded.
5.4. With reference to the provision under Section 10A of the Gujarat Infrastructure Development Act, it is pleaded that the Gujarat Legislature has taken into consideration the expanding need of taking up innovative and unique projects to cater to the ever expanding needs of human beings and enhancing human development index of the State and the country. With the aforesaid averments, it is stated that grant of lease of the land is based on the law of the land and the procedure followed is according to the traditions of good governance and through transparent process and Rules of Business of the State Government. It is pleaded that while allotting the land to the 4th respondent for the project, which is unique and world-class one, the main consideration has been to provide world class sports facility to the society and to enhance the sporting activities within the State so that sports development becomes a reality. Having regard to the unique nature of the project, it is pleaded that the illustration of other stadiums which is cited by the petitioner is not comparable with the present project which is entrusted to 4th respondent. With the aforesaid plea, it is prayed for dismissal of the petition. Page 21 of 60 HC-NIC Page 21 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT
6. Separate affidavit in reply is filed on behalf of the 4th respondent. While denying the allegations and the averments made by the petitioner in the petition, it is stated that the State of Gujarat is lagging behind in sports facilities which is largely on account of inadequate sports infrastructure, paucity of funds and lack of skilled trainers to assist in bringing out sports talent of the State of Gujarat to competitive levels, nationally and internationally. Respondent no.4 is a Company which is established with the sole objective of development of sports and recreational facilities. The said Company is set up with the objective to put up leading sports facilities and sports infrastructure by combining sports and recreation to harness the sporting potential of sports persons in relation to different sports in India. It is pleaded that 4th respondent has acquired exclusive rights pertaining to StadiArena Technology from StadiArena, U.K in the context of technology relating to Multipurpose Sports Stadium, which is a highly sophisticated technology which allows altering the seating capacity from approximately 3000 to 20000 within a few minutes. Reference is made to Concession Agreement as well as Memorandum of Understanding entered into by 4th respondent with the State Government in Vibrant Gujarat Summit, 2009. It is pleaded that after making detailed analysis of the Project, 4th respondent approached the State Government for establishing a state-of-art Multi-purpose Sport Complex within the State of Gujarat which is accepted by the Government. The proposed stadium is being established with a combination of innovative technology for Page 22 of 60 HC-NIC Page 22 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT StadiArena as well as T Box mobile seating system which enables the stadium to be used for multi-sport activities simultaneously and also for recreational and public purposes which enable the optimum utilization of such sport facilities. It is stated that the sports complex which is being built by 4th respondent is first of its kind in India as it uses an innovative technology of conversion of certain portions of a stadium into convention halls or for any other purposes to enable multifarious usage of the stadium for sports, recreation and community services. The stadium which is coming up is developed to make it a hub of sport and recreational facilities and also for hosting multi-sports events in the same stadium at the same time. It is pleaded that the land is allotted by the State Government under Section 10A of the Gujarat Infrastructure Development Act, 1999 being innovative project as specified in Schedule-III of the said Act. It is pleaded that the whole project of establishment of Multi-Purpose Sports Stadium and Recreation Complex is constructed at an estimated cost of Rs. 536 Crores, which shall be borne totally by 4th respondent and the said project is taken up under Public Private Partnership under the concept of Build, Operate and Transfer, meaning thereby, the entire complex that would be built on the land in question at a mammoth cost to be incurred solely by 4th respondent shall stand vested to the Government after the expiry of lease period. It is pleaded that the entire stadium shall belong to the State Government at the end of the lease period and the same will be a huge addition to the State's infrastructural facilities without any Page 23 of 60 HC-NIC Page 23 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT cost being incurred by the State. Further, referring to various clauses in the Concession Agreement and the provisions under the Gujarat Infrastructure Development Act, 1999, it is pleaded that there is no loss as alleged by the petitioner to the exchequer of the Government. It is categorically pleaded that 4th respondent has already completed 75% of the civil construction by spending more than Rs.220 Crores. In view of such investment, it is averred that the petition which is filed at the belated stage, deserves to be rejected on the ground of delay and laches and it is prayed to dismiss the petition.
7. After filing affidavit in reply on behalf of the 1st and 4th respondents, affidavit in rejoinder is filed on behalf of the petitioner. Even in the rejoinder affidavit, while reiterating the very same pleas as raised in the petition, it is stated that under the guise of entering into MOU in the Vibrant Gujarat Summit, 2009, the Government cannot distribute public largess by causing huge loss to the public at large. Reference is made to certain projects of similar nature and it is pleaded that having regard to the nature of the project undertaken by 4th respondent, by taking shelter under Section 10A of the Gujarat Infrastructure Development Act, 1999, the land has been granted to 4th respondent for the project, which is illegal. It is pleaded that no expertise is required to construct the stadium like the one which is being constructed by 4th respondent. Reference is made to International Tennis Stadium constructed in Ahmedabad. It is further pleaded that under the guise of innovative project, a project cannot Page 24 of 60 HC-NIC Page 24 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT become innovative project when similar such projects are already undertaken and implemented by Surat Municipal Corporation, who is earning lacs of rupees by constructing such stadiums. It is pleaded that allotment of land to 4th respondent on token rent of Re.1/- per sq.ft per year is contrary to the opinion of the Revenue Department. Allotment of land made to 4th respondent is at the cost of huge loss of the government of approximately Rs. 20,000 Crores. With reference to the averments made in the affidavits in reply made on behalf of 1st and 4th respondents, it is pleaded that such averments are made only for the purpose of supporting the plea of illegal allotment of land which is made in favour of 4th respondent for which there is no legal basis for sanctioning such project at a throw away price.
8. After filing the affidavit in rejoinder by the petitioner, affidavit in sur-rejoinder and additional affidavit were filed on behalf of 1st respondent-State. While referring to the provisions of the Gujarat Infrastructure Development Act, 1991 and the functions of the Board, it is stated in the additional affidavit as under:-
2. I respectfully say that one of the main grievances of the petitioner in his rejoinder affidavit is to the effect that the stadium of the Respondent No.4 does not require any expertise or innovation and that the State Government could not have thrown the public largesse to the private person at a throw away price at the cost of common people and that many of the correspondence, technical reports and other things, though demanded, are not supplied to the petitioners.
3. I categorically deny that the stadium of the Respondent No.4 does not require any expertise or innovation, as alleged. I Page 25 of 60 HC-NIC Page 25 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT crave leave to refer to and rely upon by playing a CD containing the peculiar characteristics of the stadium which is coming up on the land in question, which would clearly suggest that it is not only innovative in nature, but first of its kind in the country, and may be 2nd or 3rd in the whole world. Pertinently, the land in question has not been given away to the Respondent No.4 for the said project for all time to come. I shall elaborate this aspect through our lawyers during the course of hearing. As regards the alleged non-availability of some correspondence, technical reports and other things, I state that in the Affidavit - in - Reply dated 25th February, 2016 filed on behalf of the Respondent No. 1 State, it has been categorically averred that a detailed process/procedure was followed by the concerned departments of the State Government before the allotment of the land for the project in question, by taking into account various important communications exchanged between the parties, reports, presentations etc. Some of these documents were not produced only with a view to see that the record of the captioned petition does not become bulky. This apart, there were couple of departments dealing with this matter and the Respondent No.4 was corresponding with all of them and hence, it took some time to coordinate and compile the said required material. However, some of the communications exchanged between the parties in this behalf, like, (i) MoU dated 12.1.2009 executed between the State Government, on one hand and the respondent No.4, on the other; (ii) a letter dated 5.2.2009 addressed by the State Government to the Gujarat Infrastructure Development Board ('GIDB' for short);
(iii) a letter dated 5.2.2009 of GIDB to the to respondent No.4, inter alia, asking for various details for considering its proposal under the Act; (iv) A letter dated 24.6.2009, addressed by respondent No.4 to the Secretary, Tourism, Industries and Mines Department, while submitting a detailed Project Report prepared by its Consultants - Ernst and Young; (v) a letter dated 14.7.2009 of respondent No.4 to the Office of the Hon'ble Chief Minister; (vi) A letter dated 18.8.2009 addressed by respondent No.4 to Chief Executive Officer of GIDB, inter alia, submitting various details as was desired by Chief Executive Officer, GIDB, vide its letter dated 23.7.2009; (vii) A letter dated 28.8.2009, addressed by Respondent No.4 to the Secretary, Tourism, Industries and Mines Department, while submitting various details as regards the Project in question;
(viii) Three separate but similar letters written by Respondent No.4 on 27.10.2009 to the Chief Secretary, Secretary, Tourism, Industries and Mines Department and to the Chief Executive Officer of GIDB with the supply of a report containing all the details to show that the proposed TranStadia Ahmedabad Project is a 'Project of Special Nature' under Schedule 3 of the Page 26 of 60 HC-NIC Page 26 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT Act as amended and that for considering to award the said Project under the 'Direct Negotiation Root' under Section 10A of the Act; (ix) a letter dated 5.11.2009 of GIDB sending Concession Agreement for the development of the project in question for perusal of the Secretary, Tourism; (x) a letter dated 7.1.2010, addressed by respondent No.4 to the Secretary to the Hon'ble Chief Minister and CEO of GIDB; (xi) a letter dated 18.1.2010 of GIDB, informing the respondent No.4 that it had recommended the project proposal under Section 10A of the Act; (xii) a letter dated 3.3.2010, of GIDB intimating the members of the Steering Committee about the date of the first meeting held on 9.3.2010; (xiii) minutes of meeting of Steering Committee held on 9.3.2010; (xiv) a letter dated 11.5.2010 of GIDB, sending the Minutes of 55th meeting of its Executive Committee to various authorities, including the Secretary, Tourism; (xv) a letter dated 12.8.2010 of respondent No.4 to the Secretary, Tourism, inter-alia, indicating therein about the benefits of the project in question to the City and the State; (xvi) a letter dated 18.3.2011 of Deputy Secretary, Tourism, informing the concerned authorities as regards the formation of the committee for vetting the terms and conditions of the Concession Agreement; (xvii) copy of Government Resolution dated 6.6.2012 approving the Concession Agreement etc. in respect of the project in question; and (xviii) a possession receipt dated 18.6.2012 signed between the parties handing over the possession of the land to respondent No.4. I beg to produce the copies of all the aforesaid communications / documents and collectively mark the same as Annexure-I (colly.). I respectfully say that the said communications as well as other materials already produced vide earlier affidavit in reply dated 25.2.2016 filed on behalf of the respondent State, were taken into account by the State Government in relation to the project in question, while taking decision in regard to the allotment of land in question to the respondent No.4.
4. I state that the aforesaid documents and other shall also demonstrate that no illegality and/or irregularity of any nature whatsoever has been committed, as alleged or otherwise. On the contrary, bare perusal of all the documents produced on record of this matter, shall lead to an irresistible conclusion that the project is indeed beneficial to the public at large and the same shall facilitate in catering to the needs of sportsmen/athletes in the State."
9. Shri B.T.Rao, learned counsel appearing for the petitioner has taken us through the impugned Resolution and other materials Page 27 of 60 HC-NIC Page 27 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT placed on record and submitted that the 1st respondent-State of Gujarat has allotted valuable land admeasuring 37,388 sq.mtrs. (4,02,294.88 sq.ft.) in the city limits of Ahmedabad to 4th respondent at the rate of Re. 1/- per sq.ft per year, at a huge loss of the state exchequer. It is submitted that the project which is undertaken by 4th respondent cannot be termed as innovative project so as to bring it within Schedule III to the Gujarat Infrastructure Development Act, 1999. It is submitted that such stadiums are constructed at many places by the Government/statutory authorities and there is no innovation as pleaded by 4th respondent in its project. It is submitted that such a word is designed for the purpose of allotment of huge chunk of land without going for auction, which is normal process for distribution of public largess by the Government. The learned counsel submits that such action on the part of the 1st respondent in parting huge chunk of land in favour of 4th respondent in the manner other than by way of auction is illegal, arbitrary and runs contrary to various authoritative pronouncements of the Hon'ble Supreme Court. In support of his arguments, the learned counsel has placed reliance on the following judgments:
(i) Bharti Airtel Limited v. Union of India, (2015) 12 Supreme Court Cases 1
(ii) City Industrial Development Corporation, through its Managing Director, vs. Platinum Entertainment and others, (2015) 1 Supreme Court Cases 558 Page 28 of 60 HC-NIC Page 28 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT
(iii) Institute of Law, Chandigarh and others v. Neeraj Sharma and others, (2015) 1 Supreme court Cases 720
(iv) V. Purushotham Rao v. Union of India and others, (2001)
10 Supreme Court Cases 305
(v) Natural Resources Allocation In Re,Special Reference No. 1 of 2012, (2012) 10 Supreme Court Cases 1
(vi) M.I. Builders Pvt Ltd vs. Radhey Shyam Sahu and others, (1999) 6 Supreme Court Cases 464
(vii) Centre for Public Interest Litigation and others v. Union of India and others, (2012) 3 Supreme Court Cases 1
(viii) Division Bench judgment of High Court of Gujarat in Special Civil Application No. 5824 of 2008 and other petitions.
(ix) Kanchanbhai Kanbhai Tadvi & another v. Municipal Corporation of the City of Vadodara & Ors. 2002 (1) G.L.H. 790
(x) Division Bench judgment of High Court of Allahabad in Writ Petition No. 17859 of 2016 rendered on 21st December 2016 9.1. Further, to counter the plea of delay and laches, raised by the learned counsel for the respondents, Shri Rao submits that delay by itself is no reason to deny the relief, inasmuch as larger public interest is involved where huge parcel of land is allotted to 4th respondent illegally and arbitrarily contrary to settled norms. In support of his contention, to explain the delay, learned counsel placed reliance on the following judgments:
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(i) Vivek Exports v. State of Karnataka and others, reported in (2014) 10 Supreme Court Cases 809
(ii) Nova Ads v. Metropolitan Transport Corporation and others, (2015) 13 Supreme Court Cases 257
(iii) Royal Orchid Hotels Limited and Another v. G. Jayarama Reddy and others, (2011) 10 Supreme Court Cases 608
(iv) Onkar Lal Bajaj and others v. Union of India and another, (2003) 2 Supreme Court Cases 673
10. On the other hand, it is contended by Shri Kamal B. Trivedi, learned Advocate General, assisted by Ms. Sangeeta K. Vishen, learned Assistant Government Pleader, appearing for respondent nos.1 and 2 and Shri Mihir Joshi, learned Senior Advocate, appearing on behalf of M/s. Wadiaghandy & Co., Advocates for respondent no.4 that the petition is filed at a very belated stage after 5 years of the impugned Resolution passed by the Government. It is submitted that, even by the time the petition is filed, majority of civil construction has been already completed and the petition deserves to be dismissed on the ground of unexplained delay and laches on the part of the petitioner. It is submitted that even on merits, there are absolutely no grounds for seeking relief as prayed for wherein, the petitioner has challenged the Resolution of the Government. It is submitted that during the year 2009 in Vibrant Gujarat Summit, 4th respondent has entered into a Memorandum of Understanding. Page 30 of 60 HC-NIC Page 30 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT Basing on the same, it is submitted that 4th respondent submitted the proposals which are routed through the Gujarat Infrastructure Development Board and others. The proposal was scrutinised by the Government and ultimately it was approved by the Cabinet for allotment of land to 4th respondent to construct the world class Multi- purpose Sports Stadium and Recreation Complex in the model of `hub and spoke'. It is submitted that the stadiums which are constructed on huge chunk of land at various places as referred by the petitioner, are not comparable with the design and concept of the project of sports complex of 4th respondent which is being constructed on the land allotted to 4th respondent. The said allotment is made with the objective to create world class infrastructure to develop sports culture in the State, which would extend to rural areas. The project which his undertaken by 4th respondent is having innovative features and as such, the proposal of 4th respondent was considered in exercise of power under Section 10A of the Gujarat Infrastructure Development Act, 1999, as it falls under Schedule-III thereof,and after passing the Resolution in question, Concession Agreement was also entered into. It is submitted that various opinions rendered by the Government Departments are advisory in nature and ultimately, it was discussed threadbare at every stage and decided to allot the land on lease basis for annual rent of Rs.4,02,294.88 for 35 years, for setting up the project in question on Design, Build, Finance, Own, Operate and Transfer mode by imposing various conditions safeguarding the interest of the State Government. Page 31 of 60 HC-NIC Page 31 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT It is submitted by the learned Advocate General that after approval of the project by the Gujarat Infrastructure Development Board, the file was processed at various departments and a duly prepared note containing the views of all the concerned departments, including the Revenue Department suggesting to charge Rs. 21.67 Crore as annual rent in the matter of allotment of land on lease basis to respondent no.4, along with the proposal for grant of land in question on token rent of Re.1/- per sq.ft. per annum, was ultimately placed in the Cabinet for the purpose of consideration and approval. It is submitted that on 23rd February 2011, in the meeting, after detailed deliberation, the Cabinet took decision to accept the proposal and sanction allotment of land on lease basis as proposed by the Gujarat Infrastructure Development Board on token rent of Re.1/- per sq.ft per year, i.e., at the annual lease rent of Rs 4,02,294.88 for 35 years. Consequent to such decision of the Government, the Government, through its Industries and Mines Department issued Government Resolution, sanctioning the allotment of the land in favour of respondent no.4 on annual lease rent of Rs. 4,02,294.88 for 35 years for setting up the project in question on "Design, Build, Finance, Own, Operate and Transfer" (DBFOOT) basis and consequently, orders were passed by the Collector, transferring the land to 4th respondent on 23rd August 2011. It is further submitted that 4th respondent has developed the above-referred Multi-purpose Sports Stadium and Recreation Complex and has hosted 1st Kabbadi World Cup,2016 in the Arena of Ahmedabad in the month of October 2016. It is Page 32 of 60 HC-NIC Page 32 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT submitted that the writ-petition is filed belatedly in the month of September 2015 without explaining the delay and laches. Learned Advocate General submits that auction is not an invariable rule where action of the Government is in the interest of public at large and is in conformity with law. The decision of the Government to allot the land on lease basis on DBFOOT basis conforms to the norms and is absolutely transparent which is taken for larger interest of the sports community in the State of Gujarat. Learned Advocate General appearing for the State, in support of his submission, placed reliance on the Division Bench judgment of this High Court in the case of Pathan Mohammed Suleman Rehmatkhan v. State of Gujarat, Through Principal Secretary, rendered in Writ Petition (PIL) No. 97 of 2013, dated 4th October 2013, reported in 2013 (0) AIJ-GJ 230062, as confirmed by the Hon'ble Supreme Court in the judgment in the case of Pathan Mohammed Suleman Rehmatkhan v. State of Gujarat, reported in (2014 ) 4 Supreme Court Cases
156.
11. Shri Mihir Joshi, learned Senior Advocate appearing on behalf of 4th respondent, in addition to the contentions of the learned Advocate General, further submits that having regard to the technology which is being used by 4th respondent and looking at the project on the whole, the said project of 4th respondent is innovative project which is not comparable as pleaded with other stadiums, as sought to be contended by the learned counsel for petitioner. Learned counsel has Page 33 of 60 HC-NIC Page 33 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT taken us through various photographs placed on record to show as to how the stadium can be converted from closed stadium to open stadium within few minutes, i.e. 6 minutes with push of a button. He further submits that such technology which is used by 4th respondent is not used in other big stadiums which are constructed on large areas, and therefore, it cannot be said that the project undertaken by 4th respondent is not innovative and unique one. He submits that pursuant to entering into Concession Agreement and MOU in the Vibrant Gujarat Summit, 2009, a proposal was submitted and after considerable time for scrutinizing the proposal sent by the Gujarat Infrastructure Development Board, the Government, after due deliberation, has resolved to grant the land subject to certain conditions. It is submitted that even by the time the writ-petition was filed, about 75% of civil construction was over and now, the entire project is completed and the 1st Kabbadi World Cup-2016 was also held in the month of October 2016 in the said Stadium. Learned counsel also took us to the photographs to show that constructions have already come up to the huge extent even by the date of filing of the petition. Apart from relying on other judgment relied on by the learned Advocate General, the learned counsel also placed reliance on the judgment of a Division Bench judgment of this court in the case of Paryavan Mitra (Janvikas) Through Prog. Director Mahesh Pandya v. Union of India, Through the Secretary & others, reported in 2012 (5) G.L.R. 4224.
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12. Before we proceed to deal with the arguments made by the learned counsel on both the sides, we deem it appropriate to refer to the provisions of the Gujarat Infrastructure Development Act, 1999, as amended by Act No. 18 of 2006.
13. Gujarat Infrastructure Development Act, 1999 was enacted with avowed object to provide for a framework for participation by persons other than the State Government and Government agencies in financing, construction, maintenance and operation of infrastructure projects and for that purpose to establish a Board and to provide for the matters connected therewith. It is clear from the objectives of the said Act that for rapid industrialization, balanced development and improvement of quality life of the people of the State, infrastructure facilities of higher quality on a large-scale are required to be provided. It is felt that for that purpose, it is essential that besides the State Government and the Government agencies, the government thought it fit to involve private sector in substantial manner for providing infrastructure facilities in the State. Keeping such objectives in mind, the said Act was enacted by creating a statutory board called "Gujarat Infrastructure Development Board, under Section 17 of the Act. As per various provisions and objects of the scheme of the Act under Chapter II of the Act, for Infrastructure Projects, section 3 provides that any person may participate in financing, construction, maintenance and operation of a project. Under section 4 of the Act, a person may enter into a concession Page 35 of 60 HC-NIC Page 35 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT agreement of the nature specified in Schedule II with the State Government, a Government agency or a specified Government agency. Under section 5(1) of the Act, a proposal prepared by the State Government, a Government agency or a specified Government agency for participation by a person other than the State Government, a Government agency or a specified Government agency in financing, construction, maintenance and operation of the project, the cost of which exceeds such amount as may be prescribed, shall be submitted to the Board along with proposed concession agreement relating thereto for its consideration and different amounts of cost may be prescribed for different nature of projects. On such submission, under Section 5(2) of the said Act, the Board shall consider the proposal and the proposed concession agreement submitted to it under sub-section (1) or sub-section (1) of section 10 and may either recommend with or without modifications or not recommend, or return the proposal and concession agreement for reconsideration of the State Government, the Government agency or, as the case may be, the specified Government agency. Under section 6 of the Act, the State Government, a Government agency or a specified Government agency may provide to a person assistance in the manner provided in the said section. As per section 7 of the Act, no concession agreement for undertaking a project shall be entered into with any person unless the procedure specified in sections 8 and 9 or, as the case may be, sections 8 and 10 has been followed. Under section 8(1) of the Act, a concession agreement for Page 36 of 60 HC-NIC Page 36 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT undertaking a project may be entered into with a person who is selected through a competitive public bidding as provided in section 9 or by direct negotiation as provided in section 10. Under Section 8(2) of the Act, the matters relating to competitive bidding and direct negotiation shall be such as may be prescribed.
13.1. The aforesaid Act was amended in the year 2006 by Gujarat Act No.18 of 2006. By virtue of the Amending Act, several provisions of the Gujarat Infrastructure Development Act, 1999 were amended and new section 10A is inserted after Section 10. The said Section 10A of the Act reads as under:-
"10A. Selection by direct negotiation. - (1) Notwithstanding anything contained in sections 9 and 10, a person other than the State Government, Government agency or specified Government agency, may submit a proposal and proposed concession agreement for direct negotiation to the State Government, Government agency or the specified Government agency for any of the project specified in Schedule III.
(2) If the State Government, Government agency, or, as the case may be, the specified Government agency is satisfied that the project is of a nature specified in Schedule III, it may -
(a) consider the proposal from all aspects (including technical and financial) and if necessary modify the same in consultation with the person who has submitted the proposal and the proposed concession agreement, and
(b) submit the proposal and the proposed concession agreement to the Board, if the cost of the project exceeds the limit provided by the regulations.
(3) On acceptance of the recommendation of the Board made under sub-section (2) of section 5, the State Government, Government agency or, as the case may be, the specified Government agency may enter into a concession agreement with a person who has submitted the proposal under sub-Page 37 of 60
HC-NIC Page 37 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT section (1)."
It is apparent that looking to the statement of objects and reasons of the Amending Act, that is, Gujarat Act No. 18 of 2006, new section 10A came to be inserted. It appears that section 10A is inserted to empower the Government/Government agency or specified Government agency to consider the proposal and proposed concession agreement for the projects specified in Schedule III with a view to attract the investor for submission of innovative proposal, proposal for social services, linkage proposals and the projects for which the competitive bidding has failed to select a developer. From the reading of statement of objects and reasons with newly inserted section 10A, it is clear that the Government is empowered to consider proposal and concession agreement without recourse to the provisions under sections 9 and 10 of the Act, with regard to projects specified in Schedule III, if the project is innovative in nature, or any other project which falls within the category of Schedule III.
14. It is the contention advanced by Shri B.T. Rao, learned counsel appearing on behalf of the petitioner, that the project of sports stadium for which land is allotted/granted to 4th respondent is not innovative one at all, but is an ordinary stadium and under the guise of innovative project, the same is entrusted to 4th respondent at a huge loss to the State exchequer. On the other hand, it is the case of the respondents, as contended by the learned Advocate General for Page 38 of 60 HC-NIC Page 38 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT respondent no.1 and Shri Mihir Joshi, learned Senior Advocate appearing on behalf of 4th respondent, that Multi-purpose Sports Stadium and Recreation Complex, which is the subject-matter of the Resolution, is unique and innovative one and first of its kind in the country. It is submitted that closed stadium can be converted into an open stadium by push of a button within a span of 6 minutes. In view of such arguments advanced by learned counsel on both the sides, the primary issue which falls for consideration of this Court is whether the project in question which is granted to 4th respondent is innovative or not. If it is innovative one, it falls under Schedule III of the Act and concession agreement can be entered into by the Government without recourse to provision under Sections 9 and 10 of the Act. If we look at the ordinary dictionary meaning of "innovation", it is nothing but a new idea and the term "innovate" means, to make changes by introducing something new. From the meaning of Oxford dictionary also, "innovation" means, the action of innovating; the introduction of a new thing; the alteration of something established; and a result or product of innovating; a thing newly introduced, a change made in something; a new practice, method, etc. Even according to New Webster's Dictionary, 'innovate' means, 'to change or alter by introducing something new'. 4th respondent claims exclusive rights pertaining to StadiArena Technology from StadiArena, U.K. in the context of technology relating to Multi- purpose Sports Stadium, which is highly sophisticated technology, which allows altering the seating capacity from approximately 3000 Page 39 of 60 HC-NIC Page 39 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT to 20000 within few minutes. It is specific case of the respondents that the proposed stadium is being established with a combination of innovative technology for StadiArena as well as T Box mobile seating system which enables the stadium to be used for multi-sport activities simultaneously and for recreational and public purposes which enables the optimum utilization of such sport facilities. Although it is the case of the petitioner that the project of 4th respondent is not innovative one, reliance is placed on other stadiums constructed either by individuals or Government agency at various places. It appears that the Government and other sports authorities have constructed stadiums at various places, but whether such stadiums are innovative or not is a matter which is required to be considered having regard to the concept, design, etc. of the stadiums. From the materials placed on record, it is clear that several innovative ideas are brought in, in a concept of such stadium and recreation complex. From the photographs and other materials placed on record, it is difficult to accept the contention advanced by the learned counsel for the petitioner that the project which is implemented and constructed by 4th respondent is like any other ordinary stadium. From the materials placed on record, we are convinced that the project of 4th respondent is a sort of new concept brought in for converting one stadium into several areas so as to host different sport events simultaneously in the same stadium. At the same time, it appears that by push of a button, seating capacity can be converted without losing much time. In that view of the matter, it Page 40 of 60 HC-NIC Page 40 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT is not possible for this Court to accept the contention of the learned counsel for the petitioner that construction of Multi-purpose Sports Stadium and Recreation Complex by 4th respondent is not innovative one and is construction of any ordinary sports stadium.
15. It is fairly well-settled that whenever in ordinary course, public largess are to be distributed, the same thing can be done only by way of auction, but at the same time, auction also cannot be said to be a rule invariable in all cases and at all times. With the changing global scenario having regard to modernization of infrastructure based on technological expertise, it is always open to the State and its agencies to allow participation of private agencies/persons for bringing in innovative projects if they have technological expertise holding patent rights of such type of technologies.
16. In the judgment of the Hon'ble Supreme Court in the case of Bharti Airtel Limited v. Union of India, reported in (2015) 12 Supreme Court Cases 1, the Hon'ble Supreme Court upheld the policy of the Government of India to auction the natural resources and approved the decision of the Tribunal upholding the government decision. In the aforesaid case, there was a departure from the previous policy for providing telecom service-linked spectrum allocation which was also done in view of the judgment of the Hon'ble Supreme Court in 2G case reported in (2012) 3 Supreme Court Cases 1, wherein the Hon'ble Supreme Court has upheld such Page 41 of 60 HC-NIC Page 41 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT policy. But in the aforesaid judgment, the Hon'ble Supreme Court has observed that the principle that the State-owned resources cannot be alienated except by a process of auction is not a principle applicable universally. In the aforesaid judgment, while rejecting the claim for renewal of license, the Hon'ble Supreme court in para-76 of the judgment held as under:-
"76. In para 82, this Court was categoric that the findings of 2G case were limited to the case of spectrum. Similarly, in para 146, this Court observed that this Court "respects the mandate and wisdom of the executive" in the matter of choosing the most suitable method of distribution of natural resources. This Court noted that this is clearly a matter of an economic policy entailing an intricate economic choice and the Court lacks necessary expertise to make such choice. In the light of the observation in para 82 that at least in the matter of disposal of spectrum, auction is the only "permissible and intra vires method for disposal". Therefore, the submission of the licensees is required to be rejected."
17. In the case of City Industrial Development Corporation, Through its Managing Director vs. Platinum Entertainment and others, reported in (2015) 1 Supreme Court Cases, 558, the Hon'ble Supreme Court has considered the case where development authority of the State has allotted three parcels of Govt. land in favour of one person who applied in different capacities through various companies and trusts. As it was noticed that such allotment was made without issuing tender, the Hon'ble Supreme Court held that such allotments were opposed to public policy and void. Page 42 of 60 HC-NIC Page 42 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT
18. In the case of Institute of Law, Chandigarh and others v. Neeraj Sharma and others, reported in (2015) 1 Supreme Court Cases 720, the Hon'ble Supreme Court considered the allotment of plot to appellant institution without following any objective criteria, without considering the effect of overpopulation and without inviting any competitive bidding. On facts, it was found in the said case that such allotment was made of the prime land at a price of Rs. 2.55 Crores causing a loss of Rs. 139 Crores to public exchequer, as proved by audit. In the aforesaid judgment, on the ground that such allotments were made without following any criteria and contrary to the principles laid down in various judgment of the Supreme Court, the Hon'ble Supreme Court has confirmed the judgment of the High Court.
19. In the case of V. Purushotham Rao v. Union of India and others, reported in (2001) 10 Supreme Court Cases 305, the Hon'ble Supreme Court considered the allotment of retail outlets for petroleum products, LPG and SKO dealership in discretionary quota and found that such allotments were made without any verification of statements made in the applications and consequently upheld the judgment of the High Court quashing the allotment orders.
20. In the case of Natural Resources Allocation, In RE, Special Reference No.1 of 2012, reported in (2012) 10 Supreme Court Cases 1, the Hon'ble Supreme Court has answered Page 43 of 60 HC-NIC Page 43 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT presidential reference. Question no.1 which was referred for reference was, "whether the only permissible method for disposal of all natural resources across all sectors and in all circumstances is by the conduct of auctions?. Other references may not be much relevant for the purpose of disposal of this writ-petition. Paras 146 to 150 in the majority judgment read as under:
"146.To summarize in the context of the present Reference, it needs to be emphasized that this Court cannot conduct a comparative study of the various methods of distribution of natural resources and suggest the most efficacious mode, if there is one universal efficacious method in the first place. It respects the mandate and wisdom of the executive for such matters. The methodology pertaining to disposal of natural resources is clearly an economic policy. It entails intricate economic choices and the Court lacks the necessary expertise to make them. As has been repeatedly said, it cannot, and shall not, be the endeavour of this Court to evaluate the efficacy of auction vis-Ã -vis other methods of disposal of natural resources. The Court cannot mandate one method to be followed in all facts and circumstances. Therefore, auction, an economic choice of disposal of natural resources, is not a constitutional mandate. We may, however, hasten to add that the Court can test the legality and constitutionality of these methods. When questioned, the Courts are entitled to analyse the legal validity of different means of distribution and give a constitutional answer as to which methods are ultra vires and intra vires the provisions of the Constitution. Nevertheless, it cannot and will not compare which policy is fairer than the other, but, if a policy or law is patently unfair to the extent that it falls foul of the fairness requirement of Article 14 of the Constitution, the Court would not hesitate in striking it down.
147.Finally, market price, in economics, is an index of the value that a market prescribes to a good. However, this valuation is a function of several dynamic variables; it is a science and not a law. Auction is just one of the several price discovery mechanisms. Since multiple variables are involved in such valuations, auction or any other form of competitive bidding, cannot constitute even an economic mandate, much less a constitutional mandate.
148.In our opinion, auction despite being a more preferable Page 44 of 60 HC-NIC Page 44 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT method of alienation/allotment of natural resources, cannot be held to be a constitutional requirement or limitation for alienation of all natural resources and therefore, every method other than auction cannot be struck down as ultra-vires the constitutional mandate.
149.Regard being had to the aforesaid precepts, we have opined that auction as a mode cannot be conferred the status of a constitutional principle. Alienation of natural resources is a policy decision, and the means adopted for the same are thus, executive prerogatives. However, when such a policy decision is not backed by a social or welfare purpose, and precious and scarce natural resources are alienated for commercial pursuits of profit maximizing private entrepreneurs, adoption of means other than those that are competitive and maximize revenue may be arbitrary and face the wrath of Article 14 of the Constitution. Hence, rather than prescribing or proscribing a method, we believe, a judicial scrutiny of methods of disposal of natural resources should depend on the facts and circumstances of each case, in consonance with the principles which we have culled out above. Failing which, the Court, in exercise of power of judicial review, shall term the executive action as arbitrary, unfair, unreasonable and capricious due to its antimony with Article 14 of the Constitution.
150.In conclusion, our answer to the first set of five questions is that auctions are not the only permissible method for disposal of all natural resources across all sectors and in all circumstances."
21. In the case of M.I. Builders Pvt. Ltd. V. Radhey Shyam Sahu and others, reported in (1999) 6 Supreme Court Cases 464, while considering the decision of the Municipal Corporation, entrusting the work for construction of an air-conditioned underground shopping complex (Palika Bazar) on the pretext of decongesting the area without inviting tender and without obtaining any project report, the Hon'ble Supreme Court held the same to be illegal. Thus, in the said case, distribution of State largess contrary to statutory provision and without any project report was found to be Page 45 of 60 HC-NIC Page 45 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT illegal.
22. In the judgment in the case of Centre for Public Interest Litigation and others v. Union of India and others, reported in (2012) 3 Supreme Court Cases 1 (which is 2G spectrum case), the Hon'ble Supreme Court, having found the allocation of public largess on first cum first serve basis as illegal, and therefore, quashed the allocation of natural resources by State.
23. In the Division Bench judgment of this Court rendered in Special Civil Application No. 5824 of 2008 and other petitions, writ-petition was filed seeking directions to enforce Memorandum of Understanding which was entered into with the applicant to construct a five star hotel in the city of Surat, and the Division Bench of this Court held that such MOU is not a binding contract so as to grant any direction to enforce the same in exercise of power under Article 226 of the Constitution of India.
24. In the judgment in the case of Kanchanbhai Kanbhai Tadvi & another v. Municipal Corporation of the City of Vadodara & Ors, reported in 2002 (1) G.L.H. 790, the Division Bench of this Court allowed the petition by quashing the allotment of land by which the Municipal Corporation which was disposed of without recourse to auction.
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25. In the Division Bench judgment of Allahabad High Court in Writ-C No. 17859 of 2016, in the case of M/s. Indus Technical Education Society v. State of U.P. and 5 others, delivered on 21st December 2016, allotment of land in favour of the petitioner- Society was held to be illegal and the order of cancellation of allotment of petitioner was upheld. In the aforesaid case, it was found that such allotment was without following fair and transparent procedure.
26. From the above judgments cited by the learned counsel for the petitioner, there can be no disagreement with the view that when public largess are to be distributed either by the Government or Government agencies and authorities, the same are to be distributed by conducting auction by adopting fair and transparent procedure. At the same time, the auction itself is not a matter of invariable rule to be adopted in all cases, which is clear from the presidential reference answered by the Hon'ble Supreme Court in the case of Natural Resources Allocation In Re, Special Reference No. 1 of 2012, reported in (2012) 10 Supreme Court Cases 1. In the aforesaid judgment, in para-146 of the judgment (majority judgment), it is specifically observed that Court cannot mandate one method to be followed in the facts and circumstances of the case and therefore, auction, an economic choice of disposal of natural resources, is not a constitutional mandate. However, in the said judgment, it is observed that Court can test the legality and constitutionality of the methods Page 47 of 60 HC-NIC Page 47 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT adopted by the Government or Government agencies. When questioned, the courts are entitled to analyse the legal validity of different means of distribution and give a constitutional answer as to which methods are ultra vires and intra vires the provisions of the Constitution. In the aforesaid judgment, it was also observed that the Courts cannot and will not compare which policy is fairer than the other, but, if a policy or law is patently unfair to the extent that it falls foul of the fairness requirement of Article 14 of the Constitution, the Court would not hesitate in striking it down. From the above-said judgment it is clear to our mind that merely because allotment is made in favour of 4th respondent for construction of Multi-purpose Sports Stadium and Recreation Complex without adopting the method of auction, that by itself is no ground to interfere with the Resolution of the Government by which the allotment is made. The judgments which are relied on by the learned counsel Shri B.T.Rao in support of the case of the petitioner that allotment shall be made only by way of auction, cannot be accepted and do not support the case of the petitioner.
27. At the first instance, Memorandum of Understanding was entered into during the Vibrant Gujarat Investors Global Summit between the Tourism Department of the State Government and the 4th respondent for setting up Multi-purpose Stadium and Recreation Complex at Kankaria, Maninagar, Ahmedabad. The process started thereafter when the 4th respondent, on 30th January 2009 addressed a Page 48 of 60 HC-NIC Page 48 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT letter and moved a proposal for an eco-friendly Multi-purpose Stadium to be made on "Design, Build, Finance, Own, Operate & Transfer" model along with detailed project report to Gujarat Infrastructure Development Board (GIDB). In the very proposal, it was stated that the project is an innovative project involving proprietary technology patented worldwide. On 4th February 2009, the Tourism Corporation of Gujarat Ltd addressed a letter to the State Government, stating that the project seems to be of unique nature and first of its kind in Gujarat and on 5th February 2009, the State Government addressed a letter to the Chief Executive Officer of GIDB, urgently requiring technical and financial evaluation of the project of 4th respondent. Pursuant to the same, the GIDB addressed a letter on 5th February 2009 to respondent no.4, asking for various details for consideration of its proposal. When further details were called for, on 24th June 2009, 4th respondent addressed a letter to the Secretary, Tourism, Industries & Mines Department and submitted a detailed Project Report prepared by its consultants Ernst & Young, wherein, it was stated that the proposed project is unique and innovative with the world's first convertible stadium with retractable facilities in just 6 minutes with push of a button. Further, on 23rd July 2009, the CEO of Gujarat Infrastructure Development Board addressed a letter to 4th respondent and directed to provide more details about the characteristics of the Project. Thereupon, 4th respondent, on 18th August 2009 submitted the desired details to the CEO of Gujarat Infrastructure Development Board, and requested for grant of Page 49 of 60 HC-NIC Page 49 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT Government support in various areas. It was further discussed with the CEO of Gujarat Infrastructure Development Board on 16th September 2009 and it was suggested by the CEO of Gujarat Infrastructure Development Board in the meeting held on the said day to get more details from the 4th respondent. After further details were furnished, the CEO of Gujarat Infrastructure Development Board, in the meeting held on 27th April 2010, took a decision and recommended for its approval of the project under Section 10A of the Gujarat Infrastructure Development Act, 2006 and to take further steps to transfer the land. After the approval of the project by the Gujarat Infrastructure Development Board, file was processed through various departments, containing views of various departments, including that of the Revenue Department, wherein it is suggested to collect annual rent of Rs. 21.67 Crores. Ultimately, after detailed deliberation decision was taken in the Cabinet meeting held on 23rd February 2011 to accept the proposal of 4th respondent and sanction the allotment of land on lease basis in favour of 4th respondent for the project in question on annual rent of Rs. 4,02,298.88 for 35 years. Consequently, the Government Resolution was passed further recommending transfer of land to the 4th respondent. From the various stages as referred above and the manner in which the proposal is considered by the Gujarat Infrastructure Development Board as well as the Government, it is clear that Gujarat Infrastructure Development Board as well as the Government have given serious thought at every stage so as to Page 50 of 60 HC-NIC Page 50 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT consider whether project proposed by 4th respondent is innovative one or not and ultimately, decision is taken by keeping in mind various facilities which are sought to be provided by 4th respondent.
28. In the aforesaid circumstances, we are of the view that the procedure followed cannot be said to be either arbitrary or illegal, and bona fide decision is taken by the Gujarat Infrastructure Development Board and the Government having regard to the facilities which are sought to be provided by 4th respondent in the project which is innovative one. The project of Multi-purpose Sports Stadium and Recreation Complex undertaken by 4th respondent is a highly sophisticated technology which allows altering the seating capacity from approximately 3000 to 20000 persons within a few minutes with push of a button and simultaneously different sports events can be held in such stadium. Thus, when conversion of certain portions of a stadium into convention halls or for any other purposes for holding different sports events can be done simultaneously, certainly, such technology can be said to be innovative one. Though learned counsel Shri Rao sought to raise a plea that several other stadiums are also constructed by the Government agencies and no technical expertise is involved in it, but when the Court finds that the decision is taken bona fide and the technology of the project of 4th respondent is innovative according to the decision of the Gujarat Infrastructure Development Board as well as the Government, this Court cannot sit over such decision to hold that such project is not innovative one. Page 51 of 60 HC-NIC Page 51 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT
29. In the judgment rendered in Writ Petition (PIL) No.76 of 2011, which is relied on by the learned Advocate General, the Division Bench of this Court examined the petition, which is filed by way of Public Interest Petition against handing over of control and management of Sheth G.K. General Hospital at Bhuj in District-Kutch in favour of Gujarat Adani Institute of Medical Sciences on lease of 99 years, for the purpose of development of a hospital as a teaching hospital including civil hospital and establishment of medical college on public private partnership model, subject to certain terms and conditions. In the aforesaid judgment, the case of the State was based on the provisions of the Gujarat Infrastructure Development Act, 1999 as amended by Gujarat Act No. 18 of 2006. Further, looking to the terms and conditions imposed by the State Government in its Resolution in the said case, the Division Bench of this Court upheld the said decision of the Government of handing over the management and control of Sheth G.K. Hospital, Bhuj to Gujarat Adani Institute of Medical Sciences on lease basis. The Division Bench of this Court held in the said judgment that decision of such nature cannot be a subject-matter of debate in a judicial review proceeding unless it is contrary to the Constitution. It is held that in deciding the policies, the Executive is entitled to take legitimate and economic considerations into account, for the promotion of regional stability, good Government, commercial interest.
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30. Further, in the judgment in the case of Pathan Mohammed Suleman Rehmatkhan v. State of Gujarat Through Principal Secretary, in WP (PIL) No. 97 of 2013, rendered on 4th October 2013, the State Government decided to allot the land admeasuring 26,77,814 sq.mtrs in favour of respondent no.4 therein, that is, Gujarat International Financial Tech City Limited (GIFT SEZ Limited), for development of a project called GIFT City. The same was questioned before this Court. In the aforesaid case, similar contention was advanced on behalf of the State that the project of developing International Financial Services Center (IFSC) in the State is innovative and a unique project being the first of its kind in the country. By accepting such contention, this Court held that sacrosanct jurisdiction of public interest litigation should be invoked very sparingly and in favour of a vigilant litigant. The writ-petition was also dismissed noticing the abnormal delay and laches on the part of the petitioner in approaching the Court.
30.1. Against the said judgment, the matter was carried to the Hon'ble Supreme Court and the Hon'ble Supreme Court, in its decision reported in (2014) 4 Supreme Court Cases 156, while affirming the aforesaid judgment of the High Court, has held as under:
"14. We are of the view that these are purely policy decisions taken by the State Government and, while so, it has examined the benefits the project would bring into the State and to the people of the State. It is well settled that non-floating of tenders or absence of public auction or invitation alone is not a Page 53 of 60 HC-NIC Page 53 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT sufficient reason to characterize the action of a public authority as either arbitrary or unreasonable or amounted to mala fide or improper exercise of power. The Courts have always held that it is open to the State and the authorities to take economic and management decision depending upon the exigencies of a situation guided by appropriate financial policy notified in public interest. We are of the view that is what has been done in the instant case and the High Court has rightly held so. We, therefore, find no reason to entertain this Special Leave Petition and the same is dismissed."
30.2. The aforesaid judgment relied on by the learned counsel for the petitioner supports the case of the respondents. The Resolution impugned in this petition, is passed for allotting the land in question in favour of 4th respondent by considering the technology/project of 4th respondent as unique and innovative, and in the absence of any contrary material on record, it is not possible to accept the plea of the petitioner that, Multi-purpose Sports Stadium and Recreation Complex, which is being built by 4th respondent is like any other ordinary stadium. In a matter of this nature, this Court cannot examine the issue microscopically when the State has taken decision in bona fide manner by scrutinizing the file at various stages.
31. There is yet another ground on which relief sought is strongly opposed by the respondents, i.e. 1st respondent as well as 4th respondent. In the affidavit in reply filed on behalf of the State, there is categorical averment that, the captioned writ-petition suffers from the vice of delay and laches on the part of the petitioner in filing the petition in the year 2015. The State has averred in the reply that Memorandum of Understanding between the parties was executed for Page 54 of 60 HC-NIC Page 54 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT setting up Multi-purpose Sports Stadium and Recreation Complex during the Vibrant Gujarat Summit, 2009, i.e., almost about 7 years prior to filing of the writ-petition and the Government has allotted the land to 4th respondent for setting up the project vide Government Resolution No. MOU-10-2010-4244-S dated 18th March 2011. Even after passing of the Resolution by the Government finally on 18.3.2011, this petition was filed after a period of 5 years in the year 2015. Even in the affidavit in reply filed on behalf of 4th respondent, it is categorically pleaded that the writ-petition is filed with an oblique motive to disrupt the development of sports since the petitioner is a member of opposition party, and to object the decision of allotment of the land in question to 4th respondent for such avowed object. It is further pleaded in the affidavit in reply that, though the petitioner claims to be a vigilant citizen and member of the State Assembly for 5 terms, he has waited for a long time of more than 5 years in approaching this Court, more particularly, when almost of 75% of civil construction of the project is completed by 4th respondent by spending more than Rs. 220 Crores.
32. It is to be noticed that this writ-petition was filed in the month of September 2015, challenging the Government Resolution No. MOU- 10-2010-4244-S dated 18th March 2011. In the petition itself, the petitioner has fairly stated that construction work of the project has already commenced. To explain such abnormal delay and laches in the petition, it is vaguely stated that the petitioner came to know Page 55 of 60 HC-NIC Page 55 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT about the Resolution when he visited the Assembly in the year 2014 and thereafter, he sought documents under the Right to Information Act, and thereafter has approached this Court with the present petition.
33. To explain the delay, learned counsel Shri Rao has relied on the judgment of the Hon'ble Supreme Court in the case of Royal Orchid Hotels Limited and another v. G.Jayarama Reddy and others, reported in (2011) 10 Supreme Court Cases 608. In the aforesaid judgment, while examining the issue of delay and laches in exercise of power under Article 226 of the Constitution of India, the Hon'ble Supreme Court has held that Rule against laches is one of practice and not of law; there is no hard-and-fast rule and no straitjacket formula for deciding the question of delay/laches and each case should be decided on its own facts.
33.1. Learned counsel Shri Rao also relied on the judgment of the Hon'ble Supreme Court in the case of Vivek Exports v. State of Karnataka and others, reported in (2014) 10 Supreme Court Cases 809. In this judgment, the Hon'ble Supreme Court, while considering the maintainability of the petition under Article 226 of the Constitution, has held that the same is based on the ground of delay and laches. The Hon'ble Supreme Court has further held that delay assumes importance when the affected party alters his position to his detriment.
Page 56 of 60 HC-NIC Page 56 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT 33.2. Further reliance is placed on the judgment of the Hon'ble Supreme Court in the case of Nova Ads v. Metropolitan Transport Corporation and others, reported in (2015) 13 Supreme Court Cases 257. In the aforesaid judgment, the contract relating to construction and maintenance of certain bus shelters by Chennai City Municipal Corporation was found to be contrary to the statute and the said contract was annulled by the Hon'ble Supreme Court, when the works were midway. At the same time, in the above-said judgment, the Hon'ble Supreme Court has observed that there was a deceit practiced by the appellants therein in collusion with MTCL and the authorities of MTCL had acted with full knowledge against the statute and against the interest of the Corporation.
34. As against the same, the learned Advocate General appearing for the respondent no.1-State placed reliance on the Division Bench judgment of this Court rendered in Special Civil Application No. 18127 of 2011 on 27.6.2012, wherein the Division Bench of this Court has held that the delay rules apply to PILs also and if there is no proper explanation for the delay, even PILs are liable to be summarily dismissed on account of delay. Considering various stages of award of contract in that case, the Division Bench of this Court held that the petition was filed with delay and laches. Even on account of delay, the petition was rejected.
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35. Shri Mihir Joshi, learned Senior Advocate, appearing on behalf of 4th respondent placed strong reliance on the judgment of this Court in the case of Paryavaran Mitra (Janvikas) Thro Prog.Director Mahesh Pandya v. Union of India, Through the Secretary & 5 others, in Special Civil Application No. 18127 of 2011, reported in 2012 (5) G.L.R. 4224. In the said case, when there was challenge to allotment of land by the Government to a private company for setting up an industry, considering the delay of three years and huge investments made by the allottee company, the Division Bench of this Court held that delay was fatal to the petition, and the petition was rejected on the ground of delay.
36. Even we are of the view that the above-said judgment of this Court applies with full force to the case on hand. It is fairly well- settled that even in a petition which is filed by way of public interest litigation with delay and laches which is unexplained, the same is a ground to reject such petition. In the case on hand, it is clear from the judgments relied on by the learned counsel for the petitioner that there is no hard-and-fast rule to apply the principle of delay and laches, while considering the petition filed under Article 226 of the Constitution of India. It is not in dispute that at the first instance, Memorandum of Understanding was entered into between the parties during the Vibrant Gujarat Summit, 2009 on 18.3.2011 and subsequently, proposal was submitted by 4th respondent. Thereafter, several times further details were called for by the Gujarat Page 58 of 60 HC-NIC Page 58 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT Infrastructure Development Corporation (GIDB) and there was correspondence between 4th respondent, Gujarat Infrastructure Development Board as well as the Government. Even after final approval by the Gujarat Infrastructure Development Board, proposals were sent to the Government. Proposals were processed at various stages and ultimately, Government Resolution was passed deciding to allot the land to 4th respondent on 18.3.2011. Though the petitioner claims that he has remained Member of Legislative Assembly for 5 terms and also Member of Parliament, we are of the view that he has not approached this Court within a reasonable time. There is abnormal delay and laches on the part of the petitioner in approaching this Court. Further, from the affidavit in reply filed by 1 st and 4th respondents, it is clear that by the time the petition was filed in September 2015, substantial civil construction had come up on the land allotted to 4th respondent. It is specifically averred by 4th respondent that by the time petition was filed in the month of September 2015, 75% of civil construction was over and the company has spent about Rs. 220 Crores by that time. Apart from the submissions made in the affidavit in reply, several photographs are also placed on record by respondent no.4 showing such construction on the date of filing of the petition. From the material placed on record, we are convinced that by the time the petitioner approached this Court, 4th respondent who is allotted the land has spent huge money in making civil construction. Further, by applying the judgments relied on by the learned counsel for the parties, we are of Page 59 of 60 HC-NIC Page 59 of 60 Created On Sun Aug 13 14:19:36 IST 2017 C/WPPIL/214/2015 CAV JUDGMENT the view that the petition suffers from the vice of delay and laches. Apart from merits, on this ground of unexplained delay and laches also the petition, which is filed by way of public interest litigation, is liable to be rejected.
37. Further, it is also not in dispute that now the project of 4th respondent has been completed and recently in the year 2016, international Kabbadi World Cup-2016 was also held in the stadium built by 4th respondent. In that view of the matter, we are of the considered view that apart from the merits of the case, the petition also deserves to be dismissed on the ground of unexplained delay and laches.
38. For the foregoing reasons, the petition is liable to be dismissed and the same is accordingly dismissed. Notice is discharged. No costs.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) pirzada Page 60 of 60 HC-NIC Page 60 of 60 Created On Sun Aug 13 14:19:36 IST 2017