Chattisgarh High Court
M/S Jain And Brothers vs State Of Chhattisgarh on 5 August, 2021
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
(Judgment Reserved on 28.07.2021)
(Judgment Delivered on 05.08.2021)
WPC No. 748 of 2021
M/s Jain & Brothers, A Duly Constituted Partnership Firm, Through Its
Authorised Partner, Pushpalata Surana, Wife Of Late Shri Deepak Surana,
Aged About 65 Years R/o 31/251, In Front Of C. M. House, Civil Lines, Raipur,
Chhattisgarh
---- Petitioner
Versus
1. State Of Chhattisgarh Through The Secretary, Department Of Housing And
Environment, Mantralaya, Mahanadi Bhawan, Naya Raipur, Chhattisgarh
2. Directorate Of Town And Country Planning Through Its Director, Indravati
Bhawan, Block 4, 3rd Floor, Naya Raipur, Chhattisgarh
3. Raipur Development Authority Through Its Chief Executive Officer 2nd Floor
Bhakt Mata Karma Vyavasaik Parisar, New Rajendra Nagar, Raipur,
Chhattisgarh
---- Respondents
For Petitioner : Shri Abhyuday Singh, Advocate
For Respondents No.1 & 2/State : Shri Gagan Tiwari, Dy. GA
For Respondent No.3 : Shri Ashish Shrivastava, Sr. Adv. With Ms.
Asmita Singhai, Advocate
Hon'ble Shri Justice Goutam Bhaduri
CAV JUDGMENT
1. Heard.
2. Challenge in this petition is to the order dated 28.08.2020 passed by the respondent/State whereby the prayer to review to reconsider the land use was dismissed.
3. The brief facts of the case are that:-
2
(i) The petitioner was alloted piece of land by the Raipur Development Authority respondent No.3 (hereinafter referred to as 'the RDA') by a registered lease was for a period of thirty years from 29.02.1996 to 31.01.2026. The land bearing Khasra No.117/2 and 136/1 was situated at village Pandritarai, Raipur and the plot was admeasuring 66,000/- sq. ft.
The lease further contained a clause for renewal after its terms. The petitioner came into the possession of the plot bearing No.2 in the year 1997. Subsequent to such allotment a complaint was made against the officials of the RDA that in conducting the auction certain irregularities & illegalities were committed as such a criminal case was registered. In such criminal case the partners of petitioner firm along with the officials of RDA were made accused. After trial all the accused were acquitted by holding that the auction so conducted was fair. Subsequent thereto the ground rent of Rs.8,24,160/- was paid by the petitioner firm thereafter the petitioner applied for indemnity letter to develop the plot at his own risk. The no objection was issued by the RDA vide letter dated 07.12.2015 (Annexure P-6) and it was observed that since the land was reserved for cinema by the State, therefore, permission for change of use be obtained from the Director, Town & Country Planning to carry out the development. The RDA by its resolution dated 21.03.2017 (Annexure P-10) allowed the change of use of land from cinema to commercial and send the proposal to the State i.e. the Town & Country Planning Department.
(ii) The petitioner at the same time had filed an application Annexure P-13 for change of land use to the State and the RDA too by its letter to the 3 Joint Director, Town & Country Planning forwarded the resolution of change of land use to the State to accord permission. The said applications since were not decided, a writ petition bearing WPC No.1925 of 2018 was filed. On such petition this Court by its order dated 16.07.2018 vide Annexure P-12 gave a liberty to the petitioner to make afresh representation to the State Government which were directed to be decided in accordance with law.
(iii) With respect to the allotment to the petitioner a criminal case which was registered before the Special Judge, EOW bearing No.7/1997 was dismissed and against such dismissal the State preferred an application seeking leave to appeal in CRMP No.695 of 2010. The said leave to appeal was dismissed by the High Court vide order dated 30.10.2018 (Annexure P-16). In the meanwhile the representation which was filed by the petitioner was dismissed by the respondent/State on 21.12.2018 on the ground that the WPC No.2764 of 2008 in respect of the land since is pending, therefore, the representation cannot be considered. Based on some factual error committed by the State/respondent another detailed representation was filed by the petitioner on 21.12.2018 that the criminal case is not pending but the order dated 21.12.2018 dismissing the representation remained unchanged.
(iv) Therefore, the petitioner again challenged the order before this Court in WPC No.1775 of 2019 wherein this Court quashed the order on 28.06.2019 on the ground that the representation was dismissed under 4 the misconceived fact and directed the State to reconsider the representation afresh within a stipulated time. Despite the lapse of stipulated time of 60 days no decision was arrived at by the respondent as such a contempt petition bearing No.382/2019 was filed and while the contempt was pending adjudication in the meanwhile the respondent No.1 by order dated 18.11.2019 dismissed the representation of the petitioner on the ground that at the time of approval of layout of plot canal was passing through the subject land in question as such this fact was not considered while giving the land to the petitioner in the year 1996. Therefore, it was held that land use could not be permitted to be changed as the existence of canal has not been shown. It also observed that apart from it certain discrepancy in the layout existed, therefore, the representation of petitioner was rejected vide Annexure P-23.
(v) After passing the order dated 18.11.2019 a revenue case at the instance of the petitioner to demarcate the land was carried out bearing Revenue Case No.27/A-12/2019-20. In such demarcation it was found that the land is recorded in name of respondent No.3 RDA and no canal exists and the demarcation report was filed as Annexure P-24. Furthermore, the information obtained under RTI it was revealed that no canal existed since 1996-97 and other bus stand and cloth market and commercial building have been constructed over the land. The information pertaining to RTI is dated 07.02.2020 (Annexure P-25). Thereafter, the petitioner claimed that since no canal was passing through the land which was alloted to the petitioner and on the frivlous reasons the 5 application/representation of the petitioner is rejected at the instance of the other individual, who wanted to get the land alloted in his favour. Thereafter, the order dated 18.11.2019 was again challenged by the petitioner in WPC No.708/2020. This Court on 02.03.2020 after hearing the parties vide Annexure P-27 directed respondents to take afresh decision without being influenced by the observation made in order dated 18.11.2019 keeping in mind the present geographical condition of the entire area with reference to property leased out to the petitioner as on date. The review petition was eventually again dismissed by the impugned order dated 28.08.2020 (Annexure P-1) on the ground that the initial issue of existence of canal since remains undecided, therefore, the review petition was dismissed which is under challenge in this petition.
4. Learned counsel for the petitioner would submit that the lease deed would show that only 66,000/- sq. feet area was alloted as a lease to the petitioner and the plot of the petitioner is bearing No.2. It is stated that both plot Nos.1 & 2 were reserved as cinema and the Khasra number of both the plots are 117/2 and 136/1. He would further submit that the contention of the State is that the canal passes through the land which is alloted to the petitioner is completely wrong which is evident from the fact that the canal bears Khasra No.15 and though the area in the lease deed is 200 x 350 sq. feet which comes to 70,000/- sq. feet but only 66,000/- sq. feet was given which would show that the canal was not included in the land alloted to the petitioner. He would further submit that the demarcation carried out by the revenue authorities would show that out of Khasra No.117/2 and 136/1 admeasuring 66,000/- sq. feet at Devendra Nagar, 6 the map would show that the canal do not pass through the land as the canal bears Khasra No.15 though it was adjacent to the alloted land of the petitioner. It is further submitted that as per the information received under the RTI about the existence of canal from the Water Resources Department vide Annexure P- 25, the information revealed that the canal was stopped in the year 1996-97 and the allotment of the land was given to the petitioner in the year 1996. Therefore, without the canal being included in the land, the State Government gave it to RDA. It is further submitted that the order of the Court passed in WPC No.708/2020 on 02.03.2020 has not been followed to find out the geographical situation of existence of canal but the same was deliberately avoided which is an act of contempt. It is further submitted that in respect of plot No.1 the respondent/State by its order dated 19.06.2006 allowed the change of use to ABC Builders & Construction Pvt. Ltd. and the case of the petitioner is similar which is adjacent to the plot No.1 and therefore, the petitioner cannot be subjected to discrimination of the like nature and the order dated 28.08.2020 is required to be set aside and the respondents be directed to decide the case in parity to the permission granted to the lessee of plot No.1 I.e. ABC Builders & Construction Pvt. Ltd.
5. Per contra, learned counsel for the State would refer to Annexure R-1 which is a layout and would submit that the layout would show that the canal was passing through two plots and the canal was bearing Khasra No.15 and it was not transferred to RDA. It is stated that the RDA thereafter when passed the layout as per Annexure R-2 on 06.02.1996 the canal was not shown to be existing. The canal which is over land bearing Khasra No.15 the same was not shown. 7 Further reference is made to Annexure R-3 and it is submitted that in the map of the State till date the existence of canal is shown which is of Khasra No.15. Consequently, the order dated 18.11.2019 it was observed by the State that the RDA has alloted the land including the land of canal which is faulty. The reference is also made to demarcation report of 26.07.2019 which is filed along with the reply and it is submitted that though the canal was existing but it has not been properly projected in the demarcation report of petitioner 26.07.2019 and it is also contended that while the demarcation was carried out at the behest of the petitioner without showing the existence of canal the demarcation was done. Therefore, the order of the State is well merited as without showing the canal if the layout was passed it would be ab inito wrong as land of canal was not alloted to RDA.
6. Counsel for the RDA would submit that the entire averments have been made against respondent/State and the RDA has already passed the resolution to convert the use of land for cinema to commercial and whether it is commercial or cinema it is synonym to each other. Since no relief has been claimed against RDA, therefore, no further submission can be made.
7. I have heard learned counsel for the parties at length and perused the documents.
8. The subject property situates at Devendra Nagar Scheme No.32 and it is for the commercial use according to the deed of lease. The area of the land in the lease deed is shown as 66,000/- sq. feet at village Pandritarai and the Khasra is shown as 117/2 and 136/1 which was given on a premium of Rs.19,63,500/- for 8 thirty years. The period of lease started from 29.02.1996 to 31.01.2026. In the map of the lease deed, though site for cinema of plot No.2 is shown of 350 x 200 sq feet which makes it to 70,000/- sq feet approx, however, the land is in lease in the Schedule A is shown to be of area of 66,000/- sq. feet. The surrounding of the plot is shown that in north it is surrounded by other plots, towards south plot for Cinema Plot No.1 exists & east & west by road. According to the resolution of the RDA dated 21.03.2017 (Annexure P-10) purports that along with other resolution, to convert the land from use of cinema to commercial was considered and it was resolved that since the cinema is the part & parcel of the commercial use, therefore, it could be used as a commercial one. Thereafter, it was resolved to send the proposal to the Town & Country Planning, Raipur. Thereafter, the letter was sent to the Town & Country Planning on 01.04.2017 (Annexure P-11).
9. Since it appears that the said proposal sent by the RDA was not considered as such a writ petition bearing WPC No.1925 of 2018 was filed by the petitioner, wherein this Court on 16.07.2018 has passed the following order:
"16/07/2018 (1) Learned counsel for the petitioner submits that the petitioner may be permitted to make representation to the State Government for redressal of his grievances and the same may be directed to decided expeditiously.
(2) Be that as it may, the petitioner is at liberty to make representation to the State Government, that will be considered and disposed of expeditiously in accordance with law. This Court has not expressed any opinion on the merits of the matter and the authority concerned is free to decide the petitioner's representation on its own merit in accordance with law. (3) With the aforesaid observations, the writ petition stands finally 9 disposed of."
10. After the aforesaid order was passed the petitioner made a representation before the Joint Director, Town and Country Planning. The said representation was pending and repeated representations were filed on 06.09.2018 (Annexure P-15). It is not in dispute that initially a criminal case was filed before the Lokayukt and subsequent thereto the criminal case was registered before the Special Judge, EOW which was bearing criminal case No.7/1997. The criminal case was primarily on the premise that during auction of plot illegalities were committed. The said criminal case was dismissed by the Special Judge, EOW, by a judgment dated 12.04.2007. Being aggrieved by the said judgment State preferred an application seeking leave to appeal in CRMP No.695/2010. The said appeal was dismissed by the High Court by order dated 30.10.2018 (Annexure P-16). Subsequent thereto after dismissal of the criminal case and leave to appeal by State, the representation for change of land use was decided by the State/respondent by order dated 21.12.2018 (Annexure P-17) on the ground that a WPC No.2764/2008 is pending before this Court in respect of the same subject matter.
11. The petitioner again wrote a letter to the Additional Secretary, State vide Annexure P-18 wherein it was stated that CRMP No.695/2010 preferred by the State has already been dismissed and no appeal or revision is pending against the petitioner. In the meanwhile, another communication was made by the RDA to the Town & Country Planning, wherein it was pointed out that pendency of WPC No.2764/2008 of which reference was made by State to dismiss the representation on the ground that same issue is pending, it was of some 10 another case between Ritesh Kumar Gupta Vs. R.T.O. Chhattisgarh, which had no nexus with the issue of present case. Despite disclosure of said fact the application of the petitioner remained undecided.
12. Since the representation of the petitioner was dismissed on the wrong factual matrix that WPC No.2764/2008 is pending as such the petitioner again filed a writ petition before this Court which bears WPC No.1775/2019, wherein this Court on 28.06.2019 has passed the following order:-
"3. It is contended that the petitioner was the allottee of a piece of land by the respondent/Raipur Development Authority by way of lease with a renewal clause of 30 years and the land was reserved for commercial uses under the development plan and was earmarked as cinema. However, it is contended that with the change of time and development of the city, various multiplexes came into existence as shopping malls and therefore, the cinema hall at the said locality shall not be of much commercial viability. Consequently, the permission was sought for construction of a commercial complex. Further submitted that since the land use was reserved by the State Government, as such it is contended that he was informed that he has to get permission from the State Government. So, a letter was given to the State Government on 02.04.2017.
4. Learned counsel for the petitioner submits that no progress was being taken place, as such the petitioner initially filed a writ petition, wherein this Court has directed to decide the application of the petitioner within a stipulated time. It is further contended that thereafter the State Government has kept the said application in abeyance on the ground that a criminal case bearing CRMP No.2764/2008 is pending before this Court. He would further submit that no case of the nature and number exist at present. He referred to CRMP No.695/2010 and would submit that one case for grant of leave to appeal under Section 378 (3) CRPC was filed before this Court and this Court vide order dated 30.10.2018 has refused to allow leave to appeal, thereby the leave to appeal sought by the State against acquittal 11 of Inderchand Dhadiwal and others was dismissed, consequently, the acquittal order was affirmed. Learned counsel for the petitioner would further submit that under the circumstances, instead of keeping the issue in abeyance, the State Government may be directed to reconsider the application on the ground that at present no criminal case is pending against the petitioner partner.
5. On the earlier occasion the State counsel was directed to seek instructions but till date it appears that no instructions have been sought.
6. Perusal of the documents of the decision of the State Government dated 21.12.2018 would show that the application to change the use of the land was kept in abeyance for the reason that certain criminal case bearing No.2764/2018 was pending against the petitioner. The petitioner has referred to CRMP No.695/2010 wherein the order was passed on 30.10.2018. The reading of the same would reflect that Inderchand Dhadiwal was one of the accused who is claimed to be the partner of M/s Jain & Brothers. The leave to appeal by the State against the judgment dated 12.04.2007 passed by the Special Judge/First Additional Sessions Judge, Raipur (CG) in special criminal case No.7/97 was preferred under Section 13 (1) (d) and 13 (2) of the Prevention of Corruption Act, 1988 read with Section 120 B IPC. In the said criminal trial Inderchand Dhadiwal though was an accused was acquitted.
Perusal of such order would show that leave to appeal was disallowed to the State. Consequently, it would result into that no criminal case at present is pending since the same was filed against the acquittal. In the facts of this case, since as the date no criminal case as under reference of the State is pending, the State is directed to reconsider the application of the petitioner afresh. The said observation is made keeping into the fact that CRMP No.695/2010 for leave to appeal was dismissed on 30.10.2018 which has a reference to the special criminal case No.7/97 which finds place in the Annexure P-1 of the State. The State, therefore, would be obliged to take a decision in respect of the application filed by the petitioner afresh within a further period of 60 days from the date of receipt of copy of this order.
7. It is made clear that this Court has not expressed any opinion on the merits of the application so filed.
8. With the aforesaid observation, the writ petition stands 12 disposed of."
13. It appears that thereafter the representation was not decided and contempt case was filed bearing CONT No.382 of 2019 vide Annexure P-22 and in the meanwhile the contempt petition was pending the representation of the petitioner was decided on 18.11.2019 with the following finding and the relevant part thereof is reproduced hereunder:-
^^03- izkf/kdj.k }kjk izLrqr o"kZ 1984 ds ;kstuk dzekad 032 ds ekufp= esa Hkw[k.M dzekad 02 jdck 108000 oxZQhV esa ls okf.kfT;d mi;ksx gsrq 68000 oxZQhV ,oa flusek gsrq 40000 oxZQqV j[kk x;k Fkk rFkk mDr ekufp= esa Hkw[k.M esa ugj Li"V fn[kkbZ xbZ FkhA o"kZ 1996 ds Lohd`r ekufp= esa ugj dks fn[kk;s fcuk vfHkU;kl Lohd`r fd;k x;kA Hkw[k.M dzekad 02 dks flusek gsrq vkjf{kr fd;k x;k] ftlesa flusek ,oa okf.kfT;d Hkw mi;ksx ds Hkw[k.M dh fLFkfr Li"V ugha dh xbZ Fkh rFkk 40000 oxZQhV ds LFkku ij 0-499 gsDVs;j esa ls 0-460 gsDVs;j ¼49]492 oxZQqV½ dk vfHkU;kl okf.kfT;d mi;ksx gsrq Lohd`r fd;k x;k FkkA ftlls izkf/kdj.k dh ;kstuk dzekad 032 ds vfHkU;kl ds js[kkadu ,oa {ks=Qy esa le:irk ugha ikbZ xbZA ftldh izkf/kdj.k }kjk bl laca/k esa oLrqfLFkfr Li"V ugha dh xbZ] ftlls izkf/kdj.k }kjk izLrqr izfrosnu =qfViw.kZ gSA vr% izdj.k esa mijksDr =qfV;ka ik;s tkus ds QyLo:i N-x- uxj rFkk xzke fuos'k vf/kfu;e] 1973 dh /kkjk 74 ds rgr izkIr izLrko vLohd`r fd;k tkrk gSA^^
14. Thereafter, the petitioner filed an application for demarcation of his land of 66,000/- sq. feet of Khasra No.117/2 and 136/1 at Pandritarai. The demarcation 13 was carried out and the Revenue Inspector gave a report which is on record and according to such demarcation report the lease property admeasuring 66000 sq. feet was measured wherein existence of the canal over part of the land of petitioner was not shown. The map appended to this demarcation shows that in respect of the canal it is marked as land bearing Khasra No.15 whereas the rest of the land which is earmarked and is of 66000 sq. feet is shown after the land of the canal. Therefore, in such demarcation the existence of canal over the land of petitioner is not established.
15. The respondent/State has also filed demarcation report. The reference of demarcation report is made in the order dated 18.11.2019 whereby the representation of the petitioner was dismissed. The reference in such order is of 26.07.2019, which appears to be wrongly dated and it is actually of 20.07.2019 filed with the reply. Perusal of the map of demarcation filed by the State it was found that for Khasra No.15, the entire land is shown to be below the water. During the demarcation all the representatives of State were present when the demarcation was carried out. During the demarcation the map which was prepared and tallied with the map produced by the RDA, it was found that the canal is not existing at present. The earlier canal which was shown in the map according to the Patwari Naksha and the map produced by the RDA was tallied on the spot and was marked it was found that Khasra No.15 which is of the canal, three plots bearing Nos.41, 42 & 43 were partly affected and were shown in the map. In this case, the plot number of the petitioner is 2 not 41, 42 & 43 which was affected by canal according to demarcation report relied on by State. Therefore, when the map which is filed and relied on by the petitioner is 14 tallied with the map which is produced and relied on by the State, it gives only one conclusive fact that the part of the land of Khasra No.15 is not been included in the land leased out to the petitioner which of 66000/- sq. feet.
16. A document under the RTI is also produced which is dated 07.02.2020 (Annexure P-25). The reply is filed by the Water Resources Department which purport that because of the fact that on sub-canal No.9, the bus stand, Pandri Cloth Market has been constructed as such the agreement for irrigation has come to an end in the year 1996-97 and the canal is closed since then. Apart from it the grant to the RDA would show that only the land bearing Khasra No.117/2 and 136/1, 173/1 and 174/2 was alloted by the State Government as per the RTI document Annexure P-26 which shows Khasra No.15 was not alloted. Therefore, the demarcation report filed by the petitioner Annexure P-24 and the demarcation report relied on by the State/respondent on 20.07.2019 matched with each other to show the grant of lease of 66000 sq. feet land was not inclusive of plot bearing Khasra No.15 and land of canal was not included.
17. Since the petitioner had obtained the information of non-existence of canal after the application of the petitioner was dismissed on 18.11.2019, came out with a plea that on factual wrong orders of dismissal was passed as such the petitioner had preferred a writ petition bearing WPC No.708/2020 wherein this Court on 02.03.2020 has passed the following order:-
"2. A perusal of the record would show that the application of the petitioner has been primarily rejected on the ground that in the property which was leased to the petitioner 15 there is an existing canal and this fact was not taken note of at the time of granting of lease neither it was reflected in the layout and therefore the change of use of land at this juncture cannot be permitted and the same stood rejected.
3. Counsel for the petitioner submits that in fact the authorities concerned have not taken note of the fact that in the year 1988 itself the State Govt. had handed over the said property to the Raipur Development Authority (RDA) and at that point of time itself, the canal was not in operation. Further, the petitioner referred to a document dated 07.02.2020 which the petitioner has received under the Right to Information Act from the Water Resources Department of the State Govt. wherein it has been specifically mentioned that the canal which earlier existed was no longer operational in the light of the construction of new bus stand and textile market at Pandri Bazar, Raipur and since 1996-97 the canal was in-operational the water tax was also terminated from 1996-97. Further contention of the petitioner is that even as on date, the bus stand and the entire textile market are still functional and operational without there being any sign of any canal existing in that area and for this reason also, the ground of rejection of the application of the petitioner is not justified. The petitioner further pointed out the demarcation report wherein also the 16 existence of the canal has not been reflected which according to the petitioner further substantiates the ground that there is no canal as on date existing in that entire area and the rejection of the application of the petitioner on that ground would not be justified.
4. State counsel, on the other hand, opposing the petition submits that under the provisions of law, the petitioner could have moved a review petition before the same authority raising all those grounds and the review petition could have been considered afresh. According to the State counsel, the documents which have been relied by the petitioner seems to be all those documents which are obtained subsequent to the order passed by the State authorities Annexure P-1 dated 18.11.2019.
5. Given the fact that the petitioner has a right to seek a review before the same authority and also taking note of the fact that the grounds which the petitioner has raised in the present writ petition and the documents in support of its contentions have been obtained subsequent to the impugned order dated 18.11.2019, this Court is of the opinion that it would be more appropriate if the petitioner is permitted to approach the respondent no.1 by way of a review petition.17
6. If the petitioner files a review petition along with all relevant documents in respect of the aforesaid contentions, the respondent no.1 in turn shall reconsider the same afresh without being influenced by the observations made in the order dated 18.11.2019. The respondent no.1 shall also keep in mind the present geographical condition of the entire area property leased out to the petitioner as on date.
7. Subject to the petitioner filing a review petition before the respondent no.1 within a period of 30 days from today, respondent no.1 shall decide the same at the earliest preferably within a period of 90 days from the date of receipt of the review petition of the petitioner.
8. With the aforesaid observation, the writ petition stands disposed of."
18. Thereafter, after the State has again dismissed the application to review the order dated 18.11.2019, primarily it appears that while passing the order dated 28.08.2020 the authorities completely misjudged the spirit of the order and the documents. Though the basic rule is that the rights of the parties should be determined on the basis of the date of institution of the suit or proceeding but it does not mean that the events happened after the institution of the suit/proceedings cannot be considered at all. It is the power and duty of the Court to consider changed circumstances. A Court of law may take into 18 account subsequent events when it is necessary to take notice of subsequent events in order to shorten litigation and if it is necessary to do so in order to do complete justice between the parties. The Supreme Court in the case of Ram Kumar Barnwal Vs. Ram Lakhan (DEAD) {(2007) 5 SCC 660} has observed that the Court has power to take note of subsequent events and mould the relief accordingly when taking note of such subsequent events or changed circumstances would shorten the litigation and enable complete justice being done to the parties and that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise.
19. In the instant case after the last order was passed by the co-ordinate Bench of this Court on 02.03.2020 in WPC No.708/2020. The Court particularly observed that the authorities shall consider the plea of the petitioner without being influenced by the observation made in order dated 18.11.2019 and the authorities shall also keep in mind the present geographical condition of the entire area property leased out to the petitioner as on date. The authorities should have looked into the matter when subsequent documents were also produced that the canal was not existing on the spot and it was closed long back. So far as the documents produced by the RDA (Annexure R-6) it is submitted by the RDA this is a general letter sent by the RDA for the reason that to transfer the entire land of Khasra No.15 to RDA as the canal do not exist and over other part of land the bus stand, cloth market has already come up. Therefore, by tenor of the letter dated 02.03.2021 it cannot be presumed that since over plot No.2 canal passes through, therefore, the RDA has sought for 19 transfer of land in their favour.
20. In this case the litigation is pending since long after the lease was executed in the year 1996. In the year 1997 a criminal case was registered and in 2007 the criminal case came to an end by holding that the auction made in favour of the petitioner was fair and legal and no criminality was attached. Thereafter, the ground rent was also paid by the petitioner to the tune of Rs.8,24,160/- and application was preferred for change of the land use to the State in the year 2015. The NOC having not been granted and petitioner was asked to submit the indemnity bond. Since the drawing for construction was not approved by the Raipur Municipal Corporation and also by the Town and Country Planning for commercial building, as such the representation was filed by the petitioner in the year 2016 with State. Since the proposal was pending before the State and was not decided as such a writ petition was filed wherein in 2018 wherein it was directed to consider the case of the petitioner. Thereafter, the representation was dismissed on the ground that since a case bearing WPC No.2764 of 2008 is pending in respect of subject issue whereas the leave to appeal in CRMP No.695/2010 was dismissed by the High Court on 30.10.2018. Therefore, again a writ petition was filed that on the wrong factual aspect the representation has been decided. This Court on 28.06.2019 directed to decide the representation afresh. The said order having not been complied with, the contempt petition was filed in the year 2019 and in the meanwhile, the State shifted its stand and dismissed the representation on 18.11.2019 by holding that in the original layout since the canal passes through the land in question, as such the layout itself was not correct.
20
21. Subsequently, after the demarcation being carried out and it was found that the canal is not existing, another writ petition was filed wherein this Court in March, 2020 directed to decide the representation with a direction to review the order dated 18.11.2019. Subsequent thereto the impugned order dated 28.08.2020 was passed by the State wherein it was reiterated that in the original dismissal order the issue which was raised about existence of canal over the land remains unanswered. Therefore, there was a change of stand by the State from time to time. Firstly the stand was taken to dismiss representation that the criminal case is pending and another stand was taken by the State to dismiss the representation on the ground that a canal passes through the land. Subsequently, in reply before this Court stand was taken since the canal was passing through the land, the layout was not correctly passed. Therefore, the stand of the State changed at two times and in the reply fresh defence has been advanced that the layout is not according to the master plan and the shortcomings were there in the proposal of RDA as such it was rejected under Section 74 of the Nagar Tatha Gram Nivesh Adhiniyam, 1973. The factual scenario on the ground level remains same for plot Nos.1 & 2 that is also relevant to point out that for plot No.1 on the same layout which was passed, the State has allowed the change of land use.
22. Therefore, the series of facts would show that the State over a period of time tried to improve their defense to support the dismissal of application to change the land use. The Supreme Court in the case of Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and others {(1978) 1 SCC 405} has held that when a statutory functionary makes an order 21 based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge get validated by additional grounds later brought out.
23. Most important thing in this case is that a document Annexure P-29 dated 19.06.2006 is on record. Which is in respect of plot No.1 which was also reserved for cinema. The plot Nos.1 & 2 are adjacent to each other. The owner of plot No.1 applied for change of the land use from cinema to commercial which was granted to them by the State with a permission to raise commercial superstructure by holding that cinema is also inclusive of the commercial shop, therefore, the permission can be granted. It was held that the site is reserved for commercial purpose and the cinema would fall within the ambit of commercial purpose, therefore, the purpose can be changed from cinema to commercial one. However, in respect of the petitioner when application was filed, on the various grounds from time to time different stands were taken by the State. Plot No.1 & 2 since are adjacent to each other and the rejection of the application of the petitioner clearly smacks of arbitrary action and also makes it liable to be invalidated.
24. The Supreme Court in the case of State of Orissa and another Vs. Mamata Mohanty {(2011) 3 SCC 436} has held that every action of the State or its instrumentalities should not only be fair, legitimate and above board but but should be without any affection or aversion. It should neither be 22 suggestive of discrimination nor even give an impression of bias, favourtism and nepotism. Official arbitrariness, therefore, is more subversive of the doctrine of equality than statutory discrimination. Herein in the instant case, the layout which was passed by the RDA stands for both the plots i.e. Plot No.1 & Plot No.2 and there is no statutory discrimination. Therefore, the intelligible differentia when the petitioner and the person who has been granted permission cannot be set into motion when they are grouped together as the differentia must have a reasonable nexus.
25. The Supreme Court further in the case of City Industrial Development Corporation Through Its Managing Director Vs. Platinum Entertainment and others {(2015) 1 SCC 558} has reiterated the law laid down in the case of Ramana Dayaram Shetty Vs. International Airport Authority of India {(1979) 3 SCC 489} and also in Akhil Bhartiya Upbhokta Congress Vs. State of M.P. {(2011) 5 SCC 29} and has held thus in para 37 & 38 which are reproduced hereinbelow:-
37. ........................... In the case of Raman Dayaram Shetty vs. International Airport Authority of India , (1979) 3 SCC 489, this Court observed as under:-
"11. Today the Government in a welfare State, is the regulator and dispenser of special services and provider of a large number of benefits, including jobs, contracts, licences, quotas, mineral rights, etc. The Government pours forth wealth, money, benefits, services, contracts, quotas and licences. The valuables dispensed by Government take many forms, but they all share one characteristic. They are steadily taking the place of traditional forms of wealth. These valuables which derive from relationships to the Government are of many kinds. They comprise social security benefits, cash grants for political sufferers and the whole scheme of State and local 23 welfare. Then again, thousands of people are employed in the State and the Central Governments and local authorities. Licences are required before one can engage in many kinds of businesses or work. The power of giving licences means power to withhold them and this gives control to the Government or to the agents of Government on the lives of many people. Many individuals and many more businesses enjoy largesse in the form of Government contracts. These contracts often resemble subsidies. It is virtually impossible to lose money on them and many enterprises are set up primarily to do business with Government. Government owns and controls hundreds of acres of public land valuable for mining and other purposes. These resources are available for utilisation by private corporations and individuals by way of lease or licence. All these mean growth in the Government largesse and with the increasing magnitude and range of governmental functions as we move closer to a welfare State, more and more of our wealth consists of these new forms. Some of these forms of wealth may be in the nature of legal rights but the large majority of them are in the nature of privileges. But on that account, can it be said that they do not enjoy any legal protection? Can they be regarded as gratuity furnished by the State so that the State may withhold, grant or revoke it at its pleasure?"
"12. ...........It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largesse, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norms which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largesse including award of jobs, contracts, quotas, licences, etc. must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory."
38. In the case of Akhil Bhartiya Upbhokta Congress vs. State of Madhya Pradesh (2011) 5 SCC 29, this Court while considering the question of legality of allotment of land by the State or its 24 agencies on the basis of applications made by individual, observed as follows:-
"65. What needs to be emphasised is that the State and/or its agencies/instrumentalities cannot give largesse to any person according to the sweet will and whims of the political entities and/or officers of the State. Every action/decision of the State and/or its agencies/instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well-defined policy, which shall be made known to the public by publication in the Official Gazette and other recognised modes of publicity and such policy must be implemented/executed by adopting a non- discriminatory and non-arbitrary method irrespective of the class or category of persons proposed to be benefited by the policy. The distribution of largesse like allotment of land, grant of quota, permit licence, etc. by the State and its agencies/instrumentalities should always be done in a fair and equitable manner and the element of favouritism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular functionary or officer of the State.
66. We may add that there cannot be any policy, much less, a rational policy of allotting land on the basis of applications made by individuals, bodies, organisations or institutions dehors an invitation or advertisement by the State or its agency/instrumentality. By entertaining applications made by individuals, organisations or institutions for allotment of land or for grant of any other type of largesse the State cannot exclude other eligible persons from lodging competing claim. Any allotment of land or grant of other form of largesse by the State or its agencies/instrumentalities by treating the exercise as a private venture is liable to be treated as arbitrary, discriminatory and an act of favouritism and/or nepotism violating the soul of the equality clause embodied in Article 14 of the Constitution.
26. Applying the aforesaid principles, facts and the documents which are placed by the parties, I am of the considered opinion that the order dated 18.11.2019 (Annexure P-23) which is merged into the order dated 28.08.2020 is bad in law and would suffer from discrimination as different parameters were applied in 25 respect of plot No.1 & 2. Accordingly (Annexure P-1) is set aside as it has been passed on wrong factual facts without appreciating the demarcation report and the document of the State itself. Furthermore, the order dated 28.08.2020 is suffered with the illegality as the respondents/State tried to supplement the reason of dismissal otherwise than that is shown in order dated 28.08.2020.
27. In view of such existing facts since the similarly placed lessee of plot No.1, wherein the permission was granted to change the purpose of use of land applying the aforesaid principles laid down by the Supreme Court that the action of the State should not give the smack of arbitrariness or the State and/or its agencies/instrumentalities cannot give largesse to any person according to the sweet will and whims of the officers of the State, it is directed that the State would pass an order for change of land use in parity to the order passed in favour of lessee of the plot No.1 wherein the change of use of commercial was permitted from cinema. Since the litigation in this case shows that it is a 5 th petition including three writ petitions and one contempt petition, therefore, in order to put a rest to the litigation for a lease which was granted in the year 1996, the respondents are directed to decide the grant of change of permission to the petitioner at parity with the other lessee of plot No.1 within a period of 45 days from the date of receipt of the copy of this order.
28. Accordingly, the petition stands allowed.
SDSd/-
Goutam Bhaduri Judge Ashu