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SETHI,J.

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L...I...T.......T.......T.......T.......T.......T.......T..J Claiming to be the champions to the cause of vegetarians, the Appellant Nos.5 and 6 along with the heirs of the erstwhile land owners, Appellant Nos.1 to 4 herein, moved the High Court by way of a writ petition, filed in public interest with prayer for the issuance of a writ in the nature of mandamus commanding the respondents to forbear from using or utilising the acquired lands for the purposes other than the one for which the acquisition was made. It was further prayed that directions be issued to give back the lands in question to the erstwhile land owners or to sell the land by public auction only for the public purpose. Prayer for the issuance of writ of prohibition was also made for restraining the respondents to use the land for slaughter house or abattoir by respondent No.5. Pending adjudication of the main petition an injunction was prayed for restraining the respondents from using or utilising any part or portion of land in question for any slaughter house/ abattoir and restraining the respondent No.4 from allowing respondent No.5 to establish or operate any slaughter house/ abattoir on the land in question. Vide order dated 25.5.1988, the learned Single Judge of the High Court dismissed the writ petition and the appeal filed against the order of the learned Single Judge was dismissed by the Division Bench of the Calcutta High Court vide the judgment impugned in this appeal.

The facts leading to the filing of the present appeal are that by notification dated 22nd August, 1961 issued under the Land Acquisition Act, the Government of West Bengal acquired land measuring 151.18 acres for a public purpose, namely, construction of Mourigram-Dankuni Link Project of South-Eastern Railways. After completion of the project, the Railways surrendered the surplus land measuring 77.36 acres to the State Government on 7.7.1972. On 12.5.1973, the State Government handed over the possession of 74.21 acres of the surplus land to Animal Husbandry & Veterinary Services, now Animal Resource Development Department. The West Bengal Livestock Processing Development Corporation was authorised to set up the Mourigram Abattoir Project on this land. In furtherance of the establishment of abattoir, a Memorandum of Understanding was signed between India and Australia by which the Australian Development Assistance Bureau agreed to provide assistance for the establishment of an abattoir, in the year 1977. The consultants of the Australian Development Assistance Bureau prepared a detailed three-volume Feasibility Report stating therein that the Mourigram Project was feasible. By that time the State Government had established another abattoir project at Durgapur which, after commissioning, was running into losses. The appellants apprehended that the State Government, in collusion with some outsiders, was negotiating to sell out and to transfer the land in fiduciary manner exclusively for a profit purpose allegedly to defraud and mislead the people of the State. The private party referred to was Al-Kabeer, a Dubai based concern for the purposes of establishing a slaughter house/abattoir. Some correspondence ensued between the appellants and the respondents 1 to 4. It was contended that the respondents were encroaching upon the Constitutional Rights of the appellants by establishing a slaughter house/abattoir on the land acquired for a specified public purpose. It was submitted that after the completion of the project, the excess land should have been transferred to the land owners or sold in public auction but could not be utilised for any private purpose particularly for the establishment of a slaughter house/abattoir. The petitioners alleged that the establishment of the slaughter house/abattoir was not in conformity with List III Entry 17 of the Seventh Schedule of the Constitution. The action was further alleged to be contrary to List III Entry 17(B) and violative of the mandate of Articles 31(2), 48, 48A, 49 and 51 of the Constitution. The delay in filing Writ Petition was sought to be explained on the ground that respondents had allegedly kept the deal a guarded secret.

"Through long-term lease for 99 years on realisation of 100% market value only.
2. Approximate market value at Mourigram has been assessed at Rs.1,92,800/- per acre for Danga/ Bastu/Bagan land, Rs.1,54,240/- per acre for 'Sali', Rs.77,120/- per acre for 'Doba', Rs.1000/- per acre for 'Khal'.
3. The market value in respect of Durgapur land will be communicated to you shortly.
4. If you do not use the land within a reasonable time for the purpose for which it is given, Govt. will reserve the light suo moto to determine the lease." The offer was accepted by the company on 18th January, 1994 with intimation that the leased property shall be utilised for development of integrated multipurpose product food processing plants. The market value of the Durgapur land, building, plant and machinery was communicated to respondent No.5 on 1.2.1994 which was accepted the same day. On 25th February, 1994, the State Government granted approval to respondent No.5 for setting up of Mourigram and Durgapur Projects. On 2nd March, 1994, the District Land & Land Reforms Officer, Howrah was requested to furnish a report as to whether the entire 46.42 acres of land was fit for settlement for the proposed project and also to furnish the details of the land which would be fit for settlement by mentioning specifically the exact extent for each class and area involved. A decision was taken on 18.4.1994 for transferring the land to the respondent No.5 on long term basis, initially for a period of 99 years on payment of Rs.71,59,820.80. On 13th June, 1994, respondent No.5 was informed that possession of the land would be handed over after payment of the lease premium. Respondent No.5 is stated to have made the payment of Rs.87,27,000/- for the purchase of building, plant and machinery of Durgapur Slaughter House and on 13th July, 1994 and sum of Rs.71,59,820/- as lease premium for Mourigram Abattoir. The lease deed was executed between the parties on 9th June, 1995 on terms and conditions which were incorporated in Part II of the Schedule attached to the said lease deed. Feeling aggrieved, the appellants are stated to have filed the writ petition on 13.4.1998 without impleading respondent No.5 as party thereto. Respondent No.5 is shown to have been impleaded as party in the writ petition on 17th August, 1998. The writ petition was dismissed on 25th September, 1998 and appeal filed against it met the same fate on 10.5.1999, vide the judgment impugned in this appeal. Dr.Abhishek Singhvi, learned Senior Counsel appearing for the appellants has challenged the action of the respondent solely on the ground of arbitrariness and violation of Article 14 of the Constitution. He has contended that the State largesse in the form of the land, the subject matter of the litigation has been bestowed upon respondent No.5 merely for a song without adhereing to the settled norms of fair play and equity. It is contended that the respondent State, without issuing any advertisement or resorting to the procedure of auction and tender, has secretly leased out the land which has resulted in huge monetary loss worth crores of rupees to the State exchequer. Elaborating the arguments, it was submitted that the State Executive is not and should not act as free as an individual in selecting the recepient for its largesse, as has been allegedly done in this case. The Government cannot lay down arbitrary and capricious standards for choice of persons for the conferment of State benefits. Referring to a host of documents, the learned Senior Counsel submitted that the arbitrary action of the respondent-State is writ large in this case. The respondents are stated to have not satisfied either the High Court or this Court about their bonafides in initiating, processing and concluding the lease agreement with respondent No.5. Inviting our attention to the lease deed, the learned Senior Counsel submitted that the said document in fact was a sale deed in cloak of a lease agreement. The consideration of the sale deed has been termed to be "on throw away price". Conceding that the appellants had not made allegations of malafides against any one of the respondents, it is contended that though not actual but legal malafides are discernible from the pleadings of the parties and the record produced by them. Per contra Shri K.K. Venugopal, Senior Counsel who was followed by Shri Altaf Ahmad, Additional Solicitor General contended that the writ petition is not a bonafide action of the appellants. Four of whom are stated to be the erstwhile owners interested only to get back the land legally acquired from them. The petition is stated to be suffering from unexplained delay and latches. The appellants are stated to have not pleaded or argued the points including the plea of arbitrary action of the respondents before the High Court. It is submitted that in the light of the pleadings and the record produced before it, the High Court was justified in dismissing the writ petition filed by the appellants. The proposed setting up of the industry is stated to have provided job opportunities to more than 300 people and is likely to earn foreign exchange to the extent of Rs.50 crores per year. It is argued that there is no defect or error of law in the decision making process of the State Government by which the land has been leased out to respondent No.5. It is conceded that though the documents executed between the parties is styled as a lease deed, yet in fact it is a sale as the whole of the then prevalent market value of the land has been paid by the respondent No.5. The lease deed is stated to have been got executed for keeping interests of the State alive in the land which in no way affects the public interest but in effect is adverse to the interests of the respondent No.5. The deed is stated to have been concluded on the basis of negotiations, a recognised method of transferring the State property. The learned Single Judge formulated the three questions for his adjudication which read as under: "(a)@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Whether the writ petitioner nos.3 to 6 can as a matter of right get back the land which was acquired from the predecessor in interest or not;
"There are enough materials placed before me which unmistakably substantiate that Mr.Pal's client has brought a promise and/or hope that at least 400 employed youths would be provided in this industry. This industry will also bring foreign exchange to the public exchequer nearly worth 40 crores per annum. It is now accepted position that one of the prime economic policies of this country is to earn foreign exchange as much as possible. So, in my view, when the State utilizes a land in furtherance of development of industry and/or earning foreign exchange the same is nothing short of public purpose, notwithstanding a statement made in clause 16 of the lease deed. The statements made in clause 16 of the lease at best operate as admission. This admission however is displaced by the above fact to prove the fact of public purpose. My view has been expressed accepting the decision of case reported in AIR 1978 Pat.136. Moreover, here the State Government instead of leaving the land being unutilised has gainfully utilized by granting long lease to Mr.Pal's client with a premium of Rs.71,59,820.80 which has gone to the State exchequer." The construction of a slaughter house was also held to be a public purpose. In appeal, while upholding the judgment of the learned Single Judge, the Division Bench dealt with the submissions of the appellants to the effect that the land should have been sold by public auction, if after acquisition it was not used for any other public purpose by the Government. The Division Bench held that the surplus land in question need not have been sold in auction when the State had declared to utilise the land by leasing out the same for 99 years in favour of Respondent No.5. Agreeing with the learned Single Judge, it was held by the Division Bench in appeal, that: