Gujarat High Court
S.C/S.T Shipbreakers Association vs State Of Gujarat on 16 April, 2018
Bench: M.R. Shah, A.Y. Kogje
C/SCA/5509/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5509 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 6935 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH sd/
and
HONOURABLE MR.JUSTICE A.Y. KOGJE sd/
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1 Whether Reporters of Local Papers may be allowed to see NO
the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the Constitution of India or any
order made thereunder ?
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S.C/S.T SHIPBREAKERS ASSOCIATION
Versus
STATE OF GUJARAT
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Appearance:
MR SALIL M THAKORE(5821) for the PETITIONER(s) No. 1,2,3
MR. RONAK RAVAL ASST. GOVERNMENT PLEADER(1) for the
RESPONDENT(s) No. 1
MR PR NANAVATI(508) for the RESPONDENT(s) No. 2
Special Civil Application No. 6935 of 2017
MR. P.A. MEHD, ADVOCATE FOR THE PETITIONER
MR. RONAK RAVAL ASST. GOVERNMENT PLEADER(1) for the
RESPONDENT(s) No. 1
MR PR NANAVATI(508) for the RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 16/04/2018
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. As common question of law and facts arise in both these Page 1 of 21 C/SCA/5509/2017 JUDGMENT petitions, they are disposed of by this common judgment and order.
2.0. For the sake of convenience, Special Civil Application No. 5509 of 2017 preferred by the petitioners SC/ST Ship Breakers Association be treated as lead matter and the facts in the said Special Civil Application are narrated.
3.0. By way of this petition being Special Civil Application No.5509 of 2017, the petitioners SC/ST Ship Breakers Association through its authorized representative have prayed for an appropriate writ, direction and order to quash and set aside the Tender (Annexure F Collectively) issued by the respondent no.2 Gujarat Maritime Board (hereinafter referred to as the "GMB") for 8 plots at Alang Sosiya Ship Recycling Yards and all steps taken pursuant thereto and action taken thereunder. The petitioners have also prayed for appropriate writ, direction and order commanding respondent no.2 GMB to issue a tender and simultaneously put to auction all 20 vacant plots under the Scheduled Tribe and Scheduled Caste Categories.
3.1. Now, so far as Special Civil Application No. 6935 of 2017 preferred by the petitioner Shree Jay Ambe Ship Breaking Industrial Cooperative Society Ltd is concerned, the said petitioner has prayed for appropriate writ, direction and order directing the respondent GMB to conduct a simultaneously auction of all the vacant plots after duly complying with the provisions of Notification No. LPW129025435G dated 3.8.1992 by giving preferential treatment to a society whose members are persons belonging to the Schedule Caste and Schedule Tribe.
Page 2 of 21C/SCA/5509/2017 JUDGMENT 4.0. The facts leading to the present Special Civil Application in nutshell are as under:
4.1. It is the case on behalf of the petitioners that since about 25 years, there have been regulations / orders providing that out of the total plots in Alang Sosiya Ship Recycling Yard, 7% have to be reserved for SC Category and 14% have to be reserved for ST Category. According to the petitioners, these reservations have been there for the upliftment of the Scheduled Castes and Scheduled Tribes and have been incorporated in all the GMB Regulations. That as per the Resolution dated 3.8.1992 out of total existing plots 7% plots are reserved for Scheduled Caste Category and 14% plots are reserved for Scheduled Tribes Category. That by Resolution dated 4.1.2000, it was resolved by the State of Gujarat that Scheduled Caste and Scheduled Tribe Ship Breakers have financial problems, they can induct a 49% partner. That the latest regulation in force are 2015 Regulations viz. "The Gujarat Maritime Board (Conditions & Procedures for granting permission for Utilizing Ship Recycling Plots) Ship Recycling Regulations, 2015".
According to the petitioners, even as per the said Regulation also, 7% and 14% plots shall be reserved for Scheduled Castes and Scheduled Tribes respectively for granting permission for utilizing of ship recycling plots. The said Regulation also further provides that in the reserved category also, criterion of highest price bid at Tender Cum Auction (TCA) will be considered in prior in point of time and subject to that as far as applicable Government Resolutions dated 3.8.1992 and 4.1.2000 may be considered. The relevant provisions of the Regulations, 2015 shall be referred to Page 3 of 21 C/SCA/5509/2017 JUDGMENT and considered hereinafter.
4.2. That there were in all 173 plots in Alang Sosiya Ship Breaking Yard. It appears that pursuant to the amalgamation of some plots, 17 plots being converted into 9 plots, there are now 165 plots. Most of the ship recycling plots are with plot holders who have been allotted the same years ago without any auction. It is the case on behalf of the petitioners that out of total 165 plots reservation for Schedule Castes Category has to be 12 plots (7%) and reservation of Scheduled Tribes has to be 24 plots (14%). Thus, according to the petitioners, total reservation for Scheduled Caste and Scheduled Tribe Category is required to be 36 plots. That there are 20 vacant plots are presently available for allotment. According to the petitioners, all the 20 plots are required to be reserved SC/ST category and put to auction so that reservation requirements are met because as of now, not a single plot is held by SC/ST person. That in February, 2017, the GMB came out with a tender to invite bids for only 8 out of the 20 vacant plots. Out of these 8 plots, 2 plots for reserved for SC Category and 4 plots are reserved for ST category. and the remaining two plots are reserved under general category.
4.3. Being aggrieved and dissatisfied with the impugned tender issued for 8 plots in February 2017, the petitioners have preferred present Special Civil Application mainly contending inter alia that as per the earlier resolution / notification and even as per the Regulation, 2015 out of total plots 7% plots are required to be reserved for SC Category and 14% plots are required to be reserved Page 4 of 21 C/SCA/5509/2017 JUDGMENT for ST Category i.e. in all total reservation for SC and ST Category is required to be 36 plots. It is also the case on behalf of the petitioners that as 20 plots are available for allotment, all the 20 plots are required to be reserved for SC & ST Category and all the 20 vacant plots available are required to be put to auction (instead of inviting tender / bid for only 8 plots out of total 20 vacant plots available for allotment).
4.4. So far as petitioner of Special Civil Application No.6935 of 2017 as observed herein above, it is the case on behalf of the petitioner that preferential treatment is to be given to society whose members are persons belonging to the schedule caste or schedule tribes.
5.0. Shri Salil Thakore, learned advocate has appeared on behalf of the petitioners of Special Civil Application No.5509 of 2017 and Shri P.A. Mehd, learned advocate has appeared on behalf of petitioner of Special Civil Application No.6935 of 2017 and Shri P.R. Nanavati, learned advocate has appeared on behalf of the respondent GMB.
5.1. Shri Thakore, learned advocate for the petitioners of Special Civil Application No.5509 of 2017 has vehemently submitted that the decision of the respondent GMB to provide 7% reservation for SC and 14% reservation for ST Categories, not considering the total number of plots, but on the vacant plots available at present is absolutely illegal, arbitrary and contrary to the relevant Regulation Page 5 of 21 C/SCA/5509/2017 JUDGMENT including Regulation, 2015.
5.2. It is further submitted by Shri Thakore, learned advocate for the petitioners that respondent GMB is required to provide 7% reservation for SC and 14% reservation for ST Categories out of 165 plots. It is further submitted by Shri Thakore, learned advocate for the petitioners that considering the Regulation, 2015 and even considering the earlier Resolutions / Regulations, the total reservation of SC & ST Categories is required to be 36 plots. It is submitted that when 20 vacant plots are presently available for allotment, all the 20 plots are required to be reserved for SC/ ST Categories and put to auction so that gap between the reservation requirements (36 plots) and the actual reservation (0 plots) becomes lesser and the provision for reserving plots for SC/ ST Category can be given effect to.
5.3. It is further submitted by Shri Thakore, learned advocate for the petitioners that when reservation requirement of 36 plots is not made even by putting all 20 vacant plots in reservation category, there is no question and no reason to put 4 vacant plots under the general category. It is submitted that by doing so respondent no.2 has acted contrary to law, contrary to the Resolution and Regulation, 2015.
5.4. It is further submitted by Shri Thakore, learned advocate for the petitioners that in the minutes of the meeting no. 218 dated 12.08.2009, in fact the Board had acknowledged that 'there is marked reduction in plots available for SC/ST". It is submitted Page 6 of 21 C/SCA/5509/2017 JUDGMENT that despite the same respondent GMB has not put all vacant plots under the SC/ST categories. It is submitted that therefore, the action of the respondent no.2 in not maintaining 7% reservation for SC Category and 14% reservation for ST Category is absolutely illegal, arbitrary and unreasonable.
5.5. It is further submitted by Shri Thakore, learned advocate for the petitioners that from the minutes of the Board meeting no. 218 dated 12.08.2009, it would indicate that the Board acknowledged that as such it is required to put all 20 plots under reservation. However, the Board has decided against allotting 4 large plots "as these are large seized plots and there is hardly any possible of bids from SC/ST categories for such plots". It is submitted that requirement to reserve plots of SC/ST category cannot be undergo by a belief of the Board Members that there is hardly any possibility of bids from SC/ST categories. It is submitted that therefore, action of the Board in keeping 4 plots for General Category is unfair, arbitrary and unreasonable. It is submitted that all 20 vacant plots ought to have been put to auction under the reserved category. It is further submitted by Shri Thakore, learned advocate for the petitioners that even considering the Regulation 2015 and even considering the earlier resolution of 1992 and subsequent resolutions, 7% plots are to be reserved for SC Categories and 14% plots are required to be reserved for ST Categories of total plots and not all vacant plots available for allotment at present. It is submitted that total reservation for SC & ST Categories is required to be 36 plots. It is submitted that Page 7 of 21 C/SCA/5509/2017 JUDGMENT presently not a single plots are held by the SC & ST Categories. It is submitted that number of vacant plots at present are 20 and despite which only 8 plots have been put to auction by the GMB.
5.6. It is further submitted by Shri Thakore, learned advocate for the petitioners that though at present number of vacant plots are 20, without any justifiable reason/ ground only 8 plots have been put to auction by GMB. It is submitted that by putting only 8 plots to auction, the respondent GMB is trying to create artificial scarcity of plots which is something that a State body is not expected to do. It is submitted that while the objective of the provision is reservation in favour of SC / ST, action of the authority is to make it difficult for persons from SC/ST category to get the plot. It is submitted that action of the authority of not making available all vacant plots is therefore, unfair, arbitrary and unreasonable and results in creating artificial scarcity, results in the gap between reservation requirements and actual requirements not being filled up to the extent it can be and would result in unfair, unreasonable and unreal and artificial hike in rates. It is submitted that same also deprives persons who are ready to do business in ship Recycling plots from doing business and generating revenue and employment.
5.7. It is further submitted by Shri Thakore, learned advocate for the petitioners that even in the earlier round of litigation being Special Civil Application No. 7563 of 2011, the respondent GMB filed an affidavit in reply, in which, it was specifically averred that Page 8 of 21 C/SCA/5509/2017 JUDGMENT reservation of 7% for SC Category and 14% for ST Category shall be on the total plots available for SC & ST Category. It is submitted that even in the said affidavit in reply, it was specifically stated that there are 20 plots that will be put to auction once the new policy is decided by the State Government. It is submitted that thereafter new policy in the form of Regulation 2015 provided for reservation of 7% for SC Category and 14% of ST Category of total plots. It is submitted that therefore, stand now taken on behalf of the respondent GMB is just contrary to the affidavit in reply filed by the GMB in aforesaid Special Civil Application No.7563 of 2011.
Making above submissions and relying upon the following decisions of the Hon'ble Supreme Court as well as this Court as well as other High Court, it is requested to allow the present petition.
(1). Lingapaa Pochanna Appelwar vs. State of Maharashtra and Another reported in (1985) 1 SCC 479.
(2). The Life Insurance Corporation of India vs. D.J.Bahadur and Ors reported in AIR 1980 SC 2181(1).
(3). The UP State Electricity Board and Another vs. Hari Shankar Jain and Ors reported in (1978) 4 SCC 16.
(4). Jamshed Hormusji Wada vs. Board of Trustees, Port of Mumbai and Another reported in (2004) 3 SCC 214.
(5). Decision of the Andhra Pradesh in the case of Gedela Suryanarayan vs. Chairman, Vishakhapatnam Port Trust and Anr reported in 1996(1) ALD 229.
(6). Decision of the Delhi High Court in the case of Government Page 9 of 21 C/SCA/5509/2017 JUDGMENT of NCT of Delhi and Ors vs. All India Confederation of the Blind reported in 2005 SCC Online Del 1406.
(7). Ketankumar Gabubhai Patel vs. Secretary, Department of Health and Family Welfare reported in 2006 JX (Guj) 513.
(8). Vinodkumar Rasiklal Vahoniya vs. Union of India and ors reported in 2007(1) GLH 696.
6.0. Now, so far as Special Civil Application No.6935 of 2017, Shri Mehd, learned advocate for the petitioner has submitted that under 1992 Resolution, Cooperative Societies whose members are Scheduled Caste and Scheduled Tribe Category are given separate status. It is submitted that therefore, the Cooperative Society whose members belong to SC & ST Categories are required to be given preference. For the aforesaid, Shri Mehd, learned advocate for the petitioner has heavily relied upon clause 4.21 of the Tender Document as well as resolution of the State Government dated 3.8.1992.
Making above submissions, it is requested to allow the Special Civil Application No.6935 of 2017 and grant the relief as prayed for.
7.0. Both these petitions are vehemently opposed by Shri P.R.Nanavati, learned advocate for the respondent - GMB. Shri Nanavati, learned advocate for the respondent GMB has vehemently submitted that in the Regulation 2015 words "out of total plots ....."have been omitted, which as such were there in the Page 10 of 21 C/SCA/5509/2017 JUDGMENT Regulation 1994 and Regulation 2006. It is submitted that the intention of framing of Regulation is clear unambiguous, where reservation for SC / ST category is to be kept at 7% and 14% respectively in respect of plots, which are put to auction hereafter. It is submitted that on combined reading of the clause 5.1 and clause 5.4, it is clear that ratio of 7% and 14% reservation is required to be kept for SC/ST category respectively in respect of the plot, which are vacant and plots which have fallen vacant on account of cancellation / termination of the permission. It is submitted that therefore, interpretation made by the petitioner that ratio of 7% and 14% is required to be maintained in respect of total plots is absolutely ill founded and thus, 7% and 14% ratio has to be maintained in respect of total 20 plots at present available vacant for allotment.
7.1. It is further submitted that the respondent GMB in its administrative wisdom has decided to put at present only 8 plots for auction by strictly adhering to reservation policy contained in Regulation 2015.
7.2. It is further submitted by Shri Nanavati, learned advocate for the respondent GMB relying upon the further affidavit filed on behalf of the respondent no.2 dated 6.4.2017 that GMB has got 20 vacant post as per the Regulation 2015 which are available as on date. It is submitted that as per Regulation, 2015, clause 5.4 to maintain the ratio laid down for SC/ST Category, GMB is required to keep 4.2 = 4 plots for both SC & ST Categories out of 20 vacant plots available with it. However, GMB has decided to keep 16 plots Page 11 of 21 C/SCA/5509/2017 JUDGMENT for reserved Category, out of 20 available plots. It is submitted that out of 20 plots by the impugned advertisement, 8 plots have been put to auction and out of which 6 plots have been kept reserved for SC/ST category. It is submitted that reason being that one petition being Special Civil Application No.7563 of 2011 was preferred before this Court inter alia claiming the similar relief against the respondent GMB directing it to strictly adhered to reservation policy by maintaining 7% reservation for SC and 14% reservation for ST Category respectively out of total plots available at Alang Sosiya Ship Breaking yard. It is submitted that in the said petition, detailed affidavit in reply was filed and a stand was taken that in the auction which may be held in future, 16 plots will be kept reserved for allotment to SC/ ST category out of 20 vacant plots available with GMB. It is submitted that according to the aforesaid statement, this Court disposed of the aforesaid Special Civil Application vide order dated 1.10.2014. It is submitted that in view of the order passed by this Court in the aforesaid Special Civil Application No.7563 of 2011 and the commitment made by the GMB to this Court, the GMB has taken conscious decision to keep 16 plots reserved for allotment to SC/ST category rather than 4 plots, though the circumstances have undergone change in view of the fact that Ship Recycling Regulations, 2015 are framed and are applicable today, which is to fulfill the above commitment made before this Court. However, relying upon the subsequent further affidavit on behalf of respondent no.2 dated 29.06.2017, it is submitted by Shri Nanavati, learned advocate for the respondent no.2 GMB that in view of the provision of Chapter 5 of Regulation, 2015 reservation in respect of SC/ST Category of 7% and 14% Page 12 of 21 C/SCA/5509/2017 JUDGMENT respectively shall be maintained on the plots which are newly developed and vacant plots available with the GMB and not on the total number of plots existing at Alang - Sosiya Ship Breaking Yard. It is submitted that Government Policy contained in Government Resolutions dated 3.8.1992 and 4.1.2000 is not mandatory.
7.3. It is further submitted by Shri Nanavati, learned advocate for the respondent no.2 - GMB that out of 183 plots originally developed at Alang Sosiya Ship Breaking Yard, the same have been reduced to 153 plots. It is submitted that all the earlier permission holders have been permitted to utilize plots in SC & ST Category have defaulted with the result today out of 131 plots occupied by the respective permission holders, none of the persons belonging to SC/ST Category is holding any permission at Alang Sosiya Ship Breaking Yard.
Making above submissions, it is requested to dismiss the present petition.
8.0. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted and it is not in dispute that as per the Gujarat Maritime Board (Conditions & Procedures for granting permission for Utilizing Ship Recycling Plots) Ship Recycling Regulations, 2015, more particularly, Regulation 5.4, 7% and 14% of the plots shall be reserved for Schedule Caste and Schedule Tribes respectively for granting permission for utilization of ship recycling plots. However, it is the Page 13 of 21 C/SCA/5509/2017 JUDGMENT case on behalf of the respondent GMB, that 7% and 14% of the vacant plots available for allocation shall be reserved for SC & ST category respectively and not 7% and 14% of the total plots. Therefore, short question which is posed for the consideration of this Court in the present petition is whether the respondent GMB is justified in submitting that 7% and 14% of the vacant plots available and not total plots shall be reserved for SC & ST category respectively for granting permission for Utilizing of Ship Recycling Plots ?
8.1. While considering the aforesaid issue / question chronological events and earlier notifications and the resolutions are required to be considered. That the resolution dated 3.8.1992 which operate for about 25 years, it provided that out of total plots in Alang Sosiya Ship Recycling Yards 7% have to be reserved for SC Category and 14% have to be reserved for ST Category. That thereafter, Government Notification dated 04.01.2000 provided that out of total plots, 7% all these plots shall be reserved for granting permission to Cooperative Societies of all of whose members belong to Schedule Castes and 14% plots shall be reserved for Cooperative Societies of all of whose members belong to Schedule Tribes. It also provided that all the terms and conditions specified in the Government of Gujarat Resolution dated 03.08.1992 and Resolution dated 04.01.2000 shall be treated as forming part of the said Regulation, 2006. Even thereafter also, in the Board meeting of the respondent GMB held on 12.08.2009, the Board expressed its concern that there is a marked reduction in Page 14 of 21 C/SCA/5509/2017 JUDGMENT plots available for SC/ST and enlargement of size of plots should be balanced with reservation for SC/ST. However, felt that it is imperative that large size plots should be formed which would invariably results in reduction of the available plots. Therefore, it was resolved that out of 20 plots vacant viz. V3, V8, V9 and V10 shall be kept for general category as these are large seize plots and there is hardly any possibility of bids from ST/SC categories for such plots. It was further resolved that rest of the plots - 16 plots in numbers would be reserved for SC & ST. Therefore, the Board resolved that 16 plots would be made available for SC & ST comprising of of SC & ST. Therefore, even the Board also felt and resolved that 7% and 14% reserved shall be of total plots and not the vacant plots as now contended on behalf of the respondent GMB. Even thereafter also, when new Regulations have been framed being Regulations, 2015, on combined reading of the clause 5.1, 5.2, 5.3, 5.4, 5.5 and 5.6 r/w clause 1.4 (15) 7% and 14% of the total plots shall be reserved for SC & ST respectively for granting permission for Utilizing Ship Recycling Plots respectively. However, the same is required to be read with clause 1.4(15) which defines "plot" and it means piece of land adjacent to waterfront or otherwise earmarked by the Board for the purpose of ship recycling having dimensions specified in the permission letter. This shall include existing plot or plots that may be developed in future within the ship recycling yard under the Gujarat Maritime Board. Therefore, the plot means all plots including existing plot and / or plots that may be developed in future within ship recycling land under the Gujarat Maritime Board. Under the circumstances and considering history narrated Page 15 of 21 C/SCA/5509/2017 JUDGMENT in the herein above, the submission on behalf of the respondent GMB and the stand taken by the respondent GMB now that 7% and 14% of the vacant plots and not total plots shall be reserved for SC & ST respectively for granting permission for utilizing ship recycling plots cannot be accepted. At this stage, it is required to be noted that as such in the earlier round of litigation being Special Civil Application No.7563 of 2011 when a similar grievance was made, however at the relevant time Regulation 2006 was in force, in the affidavit in reply filed on behalf of the Gujarat Maritime Board, it was specifically stated that out of total plots 7% of the plots shall be reserved for Cooperative societies of all of whose members belong to SC category and 14% plots shall be reserved for cooperative societies of all of whose members belong to ST category. It was specifically stated that the said reservation is on the total plots available for SC/ST category. It was stated on affidavit that there are 20 plots that will be put to auction once the new policy is decided by the State Government. Now, thereafter new policy in the form of 2015 has been published and the same is in force, which provides that 7% and 14% of the plots are reserved for SC & ST category respectively. Therefore, now respondent GMB cannot be permitted to take U turn and take contrary stand than what was stated in the earlier round of litigation being Special Civil Application No.7563 of 2011. Under the circumstances, it is held that 7% and 14% of the total plots shall be reserved for SC & ST respectively for granting permission for utilizing of ship recycling plots are required to be reserved.
Page 16 of 21C/SCA/5509/2017 JUDGMENT 9.0. Now, the next question which is posed for the consideration of this Court is whether all the vacant plots as on the impugned advertisement shall be put to auction and / or they are required to be offered to SC and ST as per the reservation policy as contained in the Regulation 2015 is concerned, it is required to be noted that in the minutes of meeting held on 12.08.2009, it is observed that four plots viz. V3, V8, V9 and V10 would be kept for general category as these are large seize plots and there is hardly any possibility of bids from ST/SC categories for such plots. The aforesaid can hardly be a ground. Unless and until, the societies / persons belonging to SC /ST categories are given opportunity and even may be in past, the GMB may not have got sufficient SC/ ST categories applicant, there cannot be any presumption that in future also bids from SC/ST category for such large size plots shall not be available. All the plots may be large size plots or small size plots shall be offered to even SC/ST category as per the reservation. If, thereafter the bids from SC/ST category for such large size plots are not received and / or even after they are offered and the bids are accepted, the conditions are not complied with, in that case, necessary procedure for dereservation and offering to general category shall follow. Under the circumstances, the impugned decision to invite the bids with respect to four plots viz. V3, V8, V9 and V10 for general category candidate alone cannot be sustained and same also deserves to be quashed and set aside.
10. Now, the next question which posed for the consideration of Page 17 of 21 C/SCA/5509/2017 JUDGMENT this Court is whether the GMB is right / justified in inviting the bids with respect to few vacant plots and not all the vacant plots ? As observed herein above, it is the case on behalf of the GMB and so stated in the affidavit in reply that with a view to get maximum price only few vacant plots shall be put to auction and rest of the vacant plots shall be put to auction subsequently. The aforesaid is not only contrary to the relevant Regulation 2015 but the same is also contrary to the affidavit in reply filed by the GMB in earlier round of litigation being Special Civil Application No. 7563 of 2011. Even otherwise, not to invite the bids even with respect to the number of plots which are required to be reserved for SC/ST Categories as per the Regulation, 2015 shall deprive them from submitting the bids with respect to all the vacant plots. At this stage, the observation made by the Andhra Pradesh High Court in the case of Gedela Suryanarayan (supra) in Writ Petition No. 11614 of 1992 are required to be referred to. In para 11, the Andhra Pradesh High Court has observed as under:
"11.It can also be viewed from another angle. Reservations in service of SC and ST, a measure of social justice to protect the interest of the socially and economically backward sections of the society. The protection falls within the constitutional sweep of Article 16(4), 335 read with Article 46. The social justice is not constitutional claptrap, but fighting faith which enlivens legislative text with militant meaning, the functionary relevancy of social justice should be taken as an aid to statutory interpretation. The constitutional empathy for the weaker sections like S.C and S.T must inform interpretation if it has to have a social relevancy. The statutes and the rules framed thereunder calling for construction by Courts are not petrified print, but vibrate words (sic) social functions to fulfill. So viewed, it is possible to be selective in packing out that interpretation out of two alternatives which advances the cause, the cause of waker sections (S.T). "
10.1. In the case of Vinodkumar Rasiklal Vahoniya (supra) in Page 18 of 21 C/SCA/5509/2017 JUDGMENT para 28, the Division Bench of this Court has observed as under:
"28. Dereservation of a seat or nonreservation would put a reserved category in competition with general category students. We can take a judicial note of the fact that the reservation policy is for the betterment of those who come from the grass root level, have no facilities and are still striving to achieve the excellence. If the have's and have nots are treated equal, then, it may offend equality clause. Reservation is for those who cannot compete in the general category. Preference is in the class or category itself, because it is something beyond reservation."
10.2. In the case of Hari Shankar Jain and Ors (supra), in para 5 the Hon'ble Supreme Court has observed and held as under:
"5. Before examining the rival contentions, we remind ourselves that the Constitution has expressed a deep concern for the welfare of workers and has provided in Art. 42 that the State shall make provision for securing just and humane conditions of work and in Art. 43 that the State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure etc. These are among the "Directive Principles of State Policy." The mandate of Art. 37 of the Constitution is that while the directive Principles of State Policy shall not be enforceable by any Court, the principles are 'nevertherless fundamental in the governance of the country' and 'it shall be the duty of the State to apply these principles in making laws'. Addressed to Courts, what the injunction means is that while Courts are not free to direct the making of legislation, Courts are bound to evolve, affirm and adopt principles of interpretation which will further and not hinder the goals set out in the Directive Principles of State Policy. This command of the Constitution must be ever present in the minds of Judges when interpreting statutes which concern themselves directly or indirectly with matters set out in the Directive Principles of State Policy."
10.3. Applying the law laid down by the Hon'ble Supreme Court Page 19 of 21 C/SCA/5509/2017 JUDGMENT as well as this Hon'ble Court and the Andhra Pradesh High Court in the aforesaid decisions to the facts of the case on hand, more particularly, as per the Regulation 2015 and even right from very beginning i.e. since 1992 7% plots are to be reserved for SC Category and 14% plots are to be reserved for ST Category and even the Board in its meeting held on 12.08.2009 also shown the concern and felt that there is marked reduction in plots available for SC/ST, the respondent GMB is to be directed to put all the vacant plots put to auction simultaneously.
11. Now, so far as Special Civil Application No.6935 of 2017 is concerned, the petitioner is a cooperative society and as its members, persons belonging to the SC. The petitioner society has prayed for an appropriate writ, order and direction directing the respondent to conduct the simultaneous auction of all the vacant plots after duly complying with the provisions of Notification No. LPW129025435G dated 3.8.1992 by giving special treatment to a society whose members are persons belonging to the Schedule Caste and Schedule Tribe. Clause 2 of the Notification dated 03.08.1992 provides for giving such priority to such cooperative society. Clause 4.21 of the Regulation 2015 also provides for priority amongst reserved categories and it provides that in the reserved category also, the criteria of highest price bid at tender cum auction (TCA) will be considered prior in point of time and subject to that as far as applicable government resolution is concerned, the government resolution dated 3.8.1992 and 04.01.2000 may be considered. Therefore, while holding the auction and while making the allotment of plots, as such clause 5.5 Page 20 of 21 C/SCA/5509/2017 JUDGMENT of the Regulation 2015 is now to be followed. Therefore, respondents are required to be directed to act accordingly.
12. In view of the above and for the reasons stated above, Special Civil Application No. 5509 of 2017 is allowed. It is held and directed that respondent GMB shall make reservation of 7% plots belonging to SC Category and 14% of plots to ST Category out of / considering the Total Plots and not Vacant Plots as on today (as contended on behalf of the GMB). The respondent GMB is also directed to simultaneously hold the auction of all the vacant plots and apply the reservation as directed herein above i.e. including all the vacant plots bigger size plots and / or smaller size plots. Consequently, the impugned tender at Annexure F (collectively) issued by the respondent no.2 in February 2018 for 8 plots at Alang Sosiya Ship Recycling Yards is hereby quashed and set aside and the respondent GMB is directed to invite fresh tenders / bids in light of the present judgment and order. The said exercise shall be completed at the earliest but not later than six months from today. Rule is made absolute to the aforesaid extent. No costs.
12.1. So far as present Special Civil Application No. 6935 of 2017 is concerned, respondent GMB is directed to act as per the clause 5.5 of the Regulation 2015 and shall follow the same while considering priority among reserved category. Rule is made absolute to the aforesaid extent. No costs.
sd/ (M.R. SHAH, J) sd/ (A.Y. KOGJE, J) KAUSHIK J. RATHOD Page 21 of 21