Gujarat High Court
Rajkot Municipal Corporation vs District Collector & on 14 July, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/4873/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4873 of 2017
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RAJKOT MUNICIPAL CORPORATION....Petitioner(s)
Versus
DISTRICT COLLECTOR & 1....Respondent(s)
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Appearance:
MR HS MUNSHAW, ADVOCATE for the Petitioner(s) No. 1
MS. THAKORE, ASST. GOVERNMENT PLEADER for the RESPONDENT(s)
No. 1-2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 14/07/2017
ORAL ORDER
1. By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs;
"(A) Be pleased to admit the present special civil application.
(B) Be pleased to allow this special civil application by way of passing appropriate orders, writ, mandamus or writ or directions quashing and setting aside the orders dated 16.02.2016 passed by the respondent No.2 and order dated 21.12.2014 passed by respondent No.1 by way of declaring that the same are illegal, unjust, arbitrary and contrary to the facts & materials on record in the interest of justice.
(C ) Pending the admission, final hearing and disposal of the present special civil application be pleased to stay the implementation, execution and operation of stay the implementation, execution and operation of the Page 1 of 13 HC-NIC Page 1 of 13 Created On Fri Aug 18 06:21:14 IST 2017 C/SCA/4873/2017 ORDER impugned orders dated 16.02.2016 passed by the respondent no.2 and order dated 21.12.2014 passed by respondent no.1 by way of passing appropriate orders in the interest of justice.
(D) Be pleased to pass such other and further orders as the nature of the case may be required and the Honourable court may deem thought fit to pass such order."
2. The dispute pertains to allotment of 100 acres of the land in favour of the Rajkot Municipal Corporation for the purpose of developing a landfill site. It is the case of the Rajkot Municipal Corporation that it has manifold problems as regards managing the solid waste. The Corporation took up the issue with the State Government for the purpose of allotting 100 acres of part of the Government Kharaba land bearing the Revenue Survey No.222 Paiki of the village Nakrawadi. The village Nakrawadi is situated in the outskirts of the city of Rajkot. After examining the proposal in detail, the State Government thought fit to pass an order dated 18th May, 2002 allotting 4,04,680 square meters (100 acres) of the land to the Rajkot Municipal Corporation for its compost manure plant at the rate of Rs.15/- per square meter. The Corporation is in need of additional 100 acres of land for the purpose of the landfill site. It appears that on 21st December, 2004, an order relating to allotment of the additional land admeasuring 100 acres was passed. However, the Corporation was not handed over the possession of the additional 100 acres of the land. Out of 100 acres of the land allotted in the first phase, in all, 40 acres of the land has been developed by putting up a waste process plant. A compound wall has been constructed to cover up the entire 100 acres of the land and even a Green Belt has been developed in accordance with the order passed by the Page 2 of 13 HC-NIC Page 2 of 13 Created On Fri Aug 18 06:21:14 IST 2017 C/SCA/4873/2017 ORDER National Green Tribunal, Western Zone, Pune dated 20th December, 2013. The case of the Corporation is that it is in need of additional 100 acres of the land of the same revenue survey number for the future planning of the Solid Waste Management.
3. The State Government seems to be reluctant for some reason for the allotment of additional 100 acres of the land. It appears that the State wants the Corporation to, first, utilize the 100 acres of the land already allotted and then, in future, if need arises, the Government would consider allotting additional 100 acres of the land.
4. Mr. Shelat, the learned senior counsel appearing for the Corporation drew my attention to certain directions issued by the National Green Tribunal vide order dated 20th December, 2013. The directions are as under;
"(A) The affected villagers be paid Rs.20,000/- (Twenty Thousand), each as compensation, as indicated earlier.
(B) The Collector, Rajkot, shall collect such information through the Revenue Officer, not below the Rank of Tahasildar/Executive Magistrate duly supported by the documents like 7X12 village extracts, residential house tax receipts etc. (C ) HBEPL, shall deposit an amount of Rs.25,00,000/-
(Twenty Five Lacs) tentatively with the Collector, Rajkot for the purpose of disbursement of such compensation within period of four (4) weeks.
(D) The Collector, Rajkot, shall collect such information through the revenue officer not below the rank of Tahasildar/Executive Magistrate, duly supported by documents like 7X12 village extracts, residential house tax receipts etc., HBEPL (Respondent No.4), shall deposit Page 3 of 13 HC-NIC Page 3 of 13 Created On Fri Aug 18 06:21:14 IST 2017 C/SCA/4873/2017 ORDER an amount of Rs.25,00,000/-k (Twenty Five Lacs), tentatively, with the Collector, Rajkot for the purpose of disbursement of such compensation, within period of four (4) weeks.
(E) We direct that HBEPL shall complete the remaining work of construction as well as of providing the required facilities for Cell No.II, of the landfill site within period of six (6) months hereafter. In case of failure of HBEPL, to do so, RMC may forfeit the amount of security furnished by HBEPL, and may immediately give the remaining work on contract basis to some other competent agency with a condition that HBEPL will be liable to pay escalated costs or any additional expenditure, so required due to engagement of such other agency along with penalty for non-performance of terms of the contract.
(F) RMC shall provide greenbelt, as per the conditions of Authorization dated 31.12.2003, within period of six (6) months. The afforestation programme shall be undertaken without further delay and progress of such programme shall be communicated to this Tribunal at the end of each month.
(G) RMC shall ensure that compound wall is built up around the landfill site, Cell Nos.1 and II in next 6 months and no leachate is flown outside or untreated wastes is carried away by air flow.
(H) RMC shall ensure that all the Units for processing, treatment and reuse of MSW are operational on continuous basis as per the authorization and GPCB shall verify the compliance on regular basis. In case of any non-compliance, GPCB shall initiate necessary legal action as per law against both RMC & HBEPL.
(I) GPCB, shall conduct air monitoring and groundwater monitoring at the site with desired/required frequency to assess the trend, water and impact of MSW (M & H) through Cell Nos.I and II, with a view to effectively control air and water pollution in the area. GPCB may issue appropriate directions as required under the Air Act, the Water Act and Environment (Protection ) Act, 1986.
(J) GPCB shall immediately approach the Secretary, Urban Development department, Government of Gujarat Page 4 of 13 HC-NIC Page 4 of 13 Created On Fri Aug 18 06:21:14 IST 2017 C/SCA/4873/2017 ORDER and the concerned District Magistrate with a detailed report on the status of MSW facilities in the State, operated by the Municipal Corporations and Councils, as these officers have an overall responsibility for enforcement of these Rules. It is further directed that these officers shall immediately intervene and act on the status report of GPCB and take effective measures for enforcement of the MWS Rules. The Secretary, (UD), Government of Gujarat is directed to submit a report on the enforcement of MSW Rules in the state within next three (3) months.
20. The respondents shall together pay costs of Rs.1,00,000/- (Rs. One Lac) to the Applicants and shall bear their own costs."
5. It appears that the directions issued by the Tribunal came to be challenged before the Supreme Court by filing an SLP. The SLP has been filed by one of the agencies, namely, Hanjer Biotech Energies Pvt. Ltd. On 21st April, 2014, the following order was passed;
"Issue notice.
In the meanwhile, the impugned order shall remain stayed subject to the appellant depositing the amount of Rs.25 Lakhs with the Collector, Rajkot, which will not be disbursed as compensation to the villagers."
6. On behalf of the State, a reply has been filed duly affirmed by the Residential Additional Collector, Rajkot, inter alia, stating as under;
"6.1 That in the year 2002, vide order dt. 18.05.2002, the petitioner Corporation was allotted 100 acres (4,04,680 sq. mtrs) of State Government vest land of Revenue Survey No. 222 paiki of mouje Nakrawadi, Rajkot subject to payment of 25% of the value. That possession of the land was handed over to the Corporation on condition to payment of differential amount of valuation that may result pursuant to the Page 5 of 13 HC-NIC Page 5 of 13 Created On Fri Aug 18 06:21:14 IST 2017 C/SCA/4873/2017 ORDER valuation done by the State valuation committee. That initially provisional rate of Rs. 15 per sq. mrts Total Rs. 15,17,550 : 00 was fixed and accordingly vide order dt. 18.05.2002 allotment of the said land as New , impartible and restricted tenure was made in favour of the Petitioner Corporation. Here with annexed and marked as Annexure R-I is the copy of the order dt. 18.05.2002 passed by the respondent no. 1 herein. That various conditions were attached with the said order of allotment and the Petitioner Corporation was expected to comply the said conditions.
6.2 That again in the Year 2004, the Petitioner Corporation approach respondent no.1 herein for additional allotment of another 100 acres of land for disposal of solid waste management. It may kindly be appreciated that at the time of first allotment, the policy of allotment of State Government as framed vide Government resolution dt. 17.10.1947 and 07.08.1956 were in force, where the lands were allotted subject to realization of the price which were fixed by the Valuation Committee, as restricted tenure land. Subsequently, the said policy of the State Government was liberalized, more particularly, taking into the aspect the Government resolution dt. 08.12.2003, it was resolved that where the land was to be allotted for public purpose involving Government offices/ agencies, the same shall be allotted without realization of any amount but at the same time the ownership of the land shall continue as State Vest land. it may kindly be appreciated that as per section 38 of the Gujarat Land Revenue Code, the Government vest land not in lawful occupation of any person are to be utilized for such public purpose and due regard has to be given to all such special assignments. Thus , vide order dt. 21.12.2004, the respondent no.1 herein had further allotted additional 100 acres of land of Government Kharaba land of Revenue Survey no. 222 paiki of mouje Nakrawadi, Rajkot subject to certain conditions. Here with annexed and marked as Annexure R-II is the copy of the said order of allotment dt. 21.12.2004 passed by respondent no.1 herein. That as per conditions, the Petitioner Corporation was to immediately undertake exercise the measurement of the land to be allotted as well as to take over possession within 15 days and subject to use for the purpose for which it was claimed.Page 6 of 13
HC-NIC Page 6 of 13 Created On Fri Aug 18 06:21:14 IST 2017 C/SCA/4873/2017 ORDER 6.3 That even after lapse of period of 10 years, the Petitioner Corporation had not only failed to deposit the requisite amount in view of first order of allotment but had also failed to utilized the land for the purpose for which it was claimed. That it was found out of 100 acres of land first allotted, only 50 acres of land has actually being utilized for the purpose for which it was sought and another 50 acres and 100 acres of second allotment were lying idle. That vide communication dt. 07.03.2002, the Petitioner Corporation was informed about the differential amount to be paid and to submit the consent letter. That State Valuation committee had fixed rates of Rs.26 per sq. mrts in it's meeting dt. 07.02.2004, however, inspite of various communications, for some reasons the Petitioner Corporation failed to deposit the said amount. Hence, the respondent no.1 herein was constrained to initiate action by issuing show cause notice on 25.03.2009, for breach of conditions. That so far as breach of non utilization of land of additional 100 acres is concerned, a panch rojkam was carried out by Talati on 11.10.2013. That it was learnt that allotted land is still lying idle without any use at spot. It was further found that till dt. The corporation has not even bother to take over possession of additional 100 acres of land. In these circumstances, the respondent no.1 herein was constrained to pass the order dt. 30.06.2014 directing the petitioner Corporation to deposit the differential amount within 3 months and also to pay the relevant cess /tax and for second order of allotment dt. 21.12.2004 the said land was ordered to be taken back under the head of State.
6.4 That upon receipt of the said order, the petitioner Corporation was pleased to deposit the differential amount of Rs. 35,56,639/- as the same is evident from the communication dt. 26.05.2015. Here with annexed and marked as Annexure R-Ill is the copy of the communication dt. 26.05.2015 with challans forwarded by the Petitioner.
7. Now in back ground of these facts and circumstances, the respondent no.1 herein had continued with the earlier allotment of 100 acres of land in favour of the petitioner, however, the additional allotment of 100 acres Page 7 of 13 HC-NIC Page 7 of 13 Created On Fri Aug 18 06:21:14 IST 2017 C/SCA/4873/2017 ORDER of land is concerned, the same was vested under the State Government and even said order of allotment dt. 21.12.2004 stood cancelled. That being aggrieved by the said order, the petitioner had approached the respondent no.2 herein, wherein after perusal of the record as well as after hearing the respective parties, the respondent no.2 was pleased to confirm the order of the respondent no.1.
8. Now so far as legal position as regards distribution of State largesse is concerned, it is well settled position of law as laid down by the Hon'ble Supreme Court of India, it is held that the Government should not act in a manner which would benefit a private party at the cost of the State. Such an action would be both unreasonable and contrary to public interest. The Supreme Court in the case of Shri Sachidanand Pandey and another v. State of West Bengal and others, reported in (1987) 2 SCC 295, has observed that the State-owned or public-owned property is not to be dealt with at the absolute discretion of the executive. Certain precepts and principles will have to be observed. Public interest is the paramount consideration. One of the methods of securing the public interest, when it is considered necessary to dispose of the property, is to sell the property by public auction or by inviting tenders. In the words of the Supreme Court, nothing should be done which gives an appearance of bias, jobbery or nepotism. Also in the case of Public Interest Litigation and Others v. Union of India and Others reported in (2012) 3 SCC 1, the issue before the Supreme Court was whether the Government had the right to alienate, transfer or distribute natural resources/national assets otherwise than by following a fair and transparent method consistent with the fundamentals of the equity clause enshrined in the Constitution. The Supreme Court observed that the natural resources belong to the people but the State legally owns them on behalf of its people and from that point of view natural resources are considered as national assets, more so because the State benefits immensely from their value. The State is empowered to distribute natural resources. However, as they constitute public property/national asset, while distributing natural resources, the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to the public interest. The Court also observed that like any other Page 8 of 13 HC-NIC Page 8 of 13 Created On Fri Aug 18 06:21:14 IST 2017 C/SCA/4873/2017 ORDER State action, constitutionalism must be reflected at every stage of distribution of the natural resources. In the facts of that case, the Court also observed that a duly publicized auction conducted fairly and impartially was perhaps the best method for discharging such burden and the methods like first come first serve when used for alienation of natural resources/public property were likely to be misused by unscrupulous people who may only be interested in garnering maximum financial benefits and may have no respect for constitutional ethos and values. That in light of the said legal position, I humbly say and submit that Collector is consider to be custodian legis of the State property and is shoulder with statutory as well as constitutional duty to distribute the State largesse in the manner not detrimental to Public interest. That so far as additional 100 acres of land is concerned, the possession of said land has never been taken for such long period of 10 years. In fact, it is only when show cause notice was issued and impugned order came to be passed by the Collector extending the time for further 3 months for deposit of amount, it is at that stage, the Corporation became serious about the affairs and finally deposited the amount . Hence, respondent no.1 herein being conscious of the fact about requirement of 100 acres of land for public purpose has not revoked the said first order of allotment since some efforts were made in utilization of 50 acres of land, however, so far as additional 100 acres of land is concerned, no such development was seen during lapse of 10 years. In fact, the said land could have been utilized for some other public purpose. However, irrespective of the said fact, recently on 01.09.2016, the office of Collector has received a darkhast from the GlDC, seeking allotment of land of 70 hectares from the said Revenue Survey no. 222 paiki. Here with annexed and marked as Annexure R- IV is the copy of the said letter dt. 01.09.2016 submitted by the GIDC. That the Collector office of Rajkot is still considering the proposal and has not taken any final decision, however, it is worth to note that petitioner Corporation has not been able to utilized the land allotted under first order and in this peculiar facts, the respondent no.1 herein has to act taking into consideration the larger Public Interest and simultaneously to also see that the action of the parties may not be detrimental to the interest of Public at large. At present, the respondent no.1 herein is mindful of the Page 9 of 13 HC-NIC Page 9 of 13 Created On Fri Aug 18 06:21:14 IST 2017 C/SCA/4873/2017 ORDER fact of future requirement of the petitioner for solid waste management purpose but at the same time , by continuing the allotment in hope of future requirement , a huge chunk of land cannot be block when the same can be utilized in near future for development of City which is also equally important for financial growth of people of Rajkot. I further say and submit that the Collector office is duty bound to satisfy the public requirement and is ready to offer other parcel of government vest land as and when demand is raised by the petitioner corporation. In these facts and circumstances, I humbly say and submit that the impugned orders are passed in accordance with law and I strongly deny that the same are arbitrary, unjust, illegal or violative of any legal or fundamental rights of the petitioner Corporation. I, therefor, humbly say and submit that the Hon'ble Court may not entertain any of the prayers made by the petitioner and the above captioned petition may be dismissed in limine."
7. Today, an affidavit-in-rejoinder is being placed on record by the Corporation. In the rejoinder, it has been stated as under;
"2.1 I submitted that the state government had granted the land by its order dated 18.05.2002 admeasuring 100 acres at village Nakravadi for compost manure and landfill site. The said area has been developed, the photographs showing the development of the land are to be produced during the course of hearing.
2.2 The Gujarat Pollution Control Board by its authorization dated 31/12/2003 imposed special condition whereby the Rajkot Municipal Corporation was to acquire the land for waste disposal site at least for 20 years, 86 acres of land within two months, failing of which the authorization was to be cancelled. Herewith is marked as ANNEXURE: A is a copy of the said authorization dated 31/12/2003.
2.3 I submit that the State Government by its order dated 21/12/2004 prOvided additional 100 acres of land from survey No. 222 for compost manure and landfill site in response to the request of the Rajkot Municipal Page 10 of 13 HC-NIC Page 10 of 13 Created On Fri Aug 18 06:21:14 IST 2017 C/SCA/4873/2017 ORDER Corporation 2.4 I submit that though the lands were granted pursuant to the order dated 21/12/2004, the physical possession was undertaken on 11/09/2015. Annexed herewith and marked as ANNEXURE: B is a copy of Panchnama. 2.5 l submit that even during the pendency of the proceedings before the Special Secretary, there was a stay operating against the State Government. l submit that the correspondence with the GlDC is not relevant. 2.6 I submit that 100 acres of land pursuant to 2004 resolution is in addition and for future requirement of landfill site. Previously 100 acres of land was used for the said purpose.
3. In view of the above, it is submitted that the Honorable Court may set aside the order passed by the Special Secretary on the ground that we are not using the land presently. It is to submit that Rajkot Municipal Corporation has already paid Rs.65,55,816/- conditionally, under protest and Rajkot Municipal Corporation had already submitted the letter to the Government for reducing the rate from commercial rate to general rate considering the public purpose of the activity being taken up by Rajkot Municipal Corporation for cleaning the city. The Government has not yet taken any decision regarding the our applications made by Rajkot Municipal Corporation. "
8. Mr. Shelat, the learned senior counsel invited my attention to a letter of the Gujarat Pollution Control Board addressed to the Corporation dated 31st December, 2003. The letter reads as under;
"To, Rajkot Municipal Corporation, Rajkot District: Rajkot.
Ref: Your application number nil dt. 16.12.2003.Page 11 of 13
HC-NIC Page 11 of 13 Created On Fri Aug 18 06:21:14 IST 2017 C/SCA/4873/2017 ORDER The Gujarat Pollution Control Board after examining the proposal hereby authorizes Rajkot Municipal Corporation having their administrative office at Rajkot to set up and operate waste processing/waste disposal facility at Survey No.222/P village Nakaravadi on the terms and conditions Special Conditions as follows and General (including the standards to comply)
1. The validity of this authorization is till date:
31.12.2006. After the validity, renewal of authorization is to be sought.
2. The Gujarat Pollution Control Board may, at any time, revoke any of the conditions applicable under the authorization and shall communicate the same in writing.
3. Any violation of the provision of the Municipal Solid Wastes (Management and Handing) Rules, 2000 will attract the penal provision of the Environment (Protection) Act, 1986 (29 of 1986).
Special Conditions;
1. Confirmation of land allotment has to be obtained from the District Collector within 60 days from receipt of this authorization, failing which this authorization shall stand cancelled.
2. The area proposed by Municipal Corporation is insufficient to maintain disposal site for atleast 20 years. Therefore, Municipal Corporation shall acquire more 86 acres of land and inform Gujarat Pollution Control Board within 2 month time, failing which this Authorization will stand cancelled without further notice.
[Member Secretary] Gujarat Pollution Control Board"
9. I am of the view, having regard to the nature of the dispute between a corporation and the State Government, that the same should be looked into and resolved by the Chief Secretary to the State of Gujarat at the earliest. The Corporation is in need of the land for a public purpose and the Government is, otherwise, obliged to consider the public Page 12 of 13 HC-NIC Page 12 of 13 Created On Fri Aug 18 06:21:14 IST 2017 C/SCA/4873/2017 ORDER purpose, more particularly, having regard to the directions issued by the National Green Tribunal and the proceedings pending before the Supreme Court. The need of the hour is to take care of the Solid Waste generated at the end of the day in a vast city like Rajkot and the surrounding areas. Without an adequate landfill site and a management plan, it is going to be very difficult to take care of the problem. If there is no proper landfill site with a disposal plan, then it might lead to a potential health hazard. In such circumstances, I direct the Chief Secretary, State of Gujarat to take up this issue very seriously and see to it that the dispute is resolved at the earliest in the larger interest of the people at large. Let such decision be taken within a period of two months from the date of the receipt of the writ of the order. A copy of this order be provided to Ms. Thakore, the learned AGP, for its onward communication.
10. With the above, this application is disposed of.
(J.B.PARDIWALA, J.) Vahid Page 13 of 13 HC-NIC Page 13 of 13 Created On Fri Aug 18 06:21:14 IST 2017