IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 5200 of 1997 For Approval and Signature: Hon'ble MR.JUSTICE H.L.GOKHALE ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? -------------------------------------------------------------- MAITRINAGAR EMPLOYEES' (KARMACHARI) COOP HSG. SOC LTD Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR CL SONI for Petitioner MR SN SHELAT, ADDL.ADVOCATE GENERAL WITH MR TH SOMPURA ASSTT. GOVERNMENT PLEADER for Respondent No.1 and 2 MR AJ PATEL with MR NITIN N PANDYA for Respondent No. 3,4 and 5. -------------------------------------------------------------- CORAM : MR.JUSTICE H.L.GOKHALE Date of decision: 20/11/97 C.A.V.JUDGEMENT This petition filed by the petitioner Housing Society under Art. 226 of the Constitution of India raises the question as to whether the decisions of the Respondent No.1 - State of Gujarat and Respondent No.2 (Additional Collector, Rajkot) to allot certain urban vacant lands in Rajkot to Respondents Nos. 3 to 5 Housing Societies ignoring the claim of the petitioner society, are unfair, unjust and illegal and violative of Article 14 of the Constitution of India and consequetly whether the said decisions should be interfered with and if so what directions are required. 2. The petitioner is a registered Co-operative Housing Society of Government employees having 50 members. It applied for allottment of land bearing Survey No. 440 in the City of Rajkot in the year 1990 under Sec.23 of the Urban Land (Ceiling and Regulations) Act, 1976. That request was not entertained since the particular survey number was under litigation. The petitioner society thereafter made another application on 19/5/1992 for the allotment of land bearing Survey No. 438 of City of Rajkot for 40 members. The respondents nos. 3,4 and 5 are proposed co-operative societies of Government employees. They also applied for allottment of land from the same survey number on 18/2/1992, 15/2/1992 and 15/6/1992 respectively for the benefit of their members. It is relevant to note that the members of the petitioner as well as Respondent Nos. 3,4 and 5 are Government employees belonging to Class III or Class IV. The respondent No.1 herein is the State of Gujarat through the Secretary, Revenue Department and the Respondent No.2 is the Additional Collector and Competent Authority under the Urban Land (Ceiling and Regulation) Act, Rajkot. 3. The Excess Land Distribution Committee for District Rajkot (District Land Committee for short) first met on 30th of June, 1992. It had in all 13 applications before it which included petitioner society and respondent nos. 3 and 4 societies. There was no application of respondent no.5 society before the Committee at that time. Amongst others, the Committee decided to recommend a parcel of land admeasuring 3000 sq.mts. for 30 members from final plot Nos. 287/1 and 285/2 (of Survey No. 438) to the petitioner society. The request of respondent no.4 society was also similarly entertained for 30 members. The application of respondent No.3 society was however kept pending. The Committee again met on 5/8/1992, since a part of the concerned land from Survey No. 438 admeasuring 8324 sq.mts. was available for effecting allotment. This time the Committee decided to recommend allottment of 6674 sq.mts. out of final Plot No. 287/1 (from Survey No. 438) for 60-61 members to the respondent no.3 society whose appication had been earlier kept pending. As far as the respondent no.5 society is concerned, its application came up before the Committee for the first time and it was decided to recommend this society for 15 members with an area of 1650 sq.mts from final Plot No. 285/3. Thus the position as per the recommendations emerges as follows :- Sr. Name of Society Total Date of Recomm- Area in No Members Demand ended Sq.Mts. Members --------------------------------------------------------------- Recommended on 30-6-1992 1. Shree Tripada Society 35 15.2.92 30 3300.00 (Respondent No.4) 2. Shree Maitrinagar 40 19.5.92 30 3300-00 Society (Petitioner) 3. Shree Vechanvera 120 19.5.92 80 9000-00 Recommended on 5-8-1992 4. Shree Vividh Society 120 18.2.92 60-61 6675-00 (Respondent No.3) 5. Shri Ankur Society 48 15.6.92 15 1650-00 (Respondent No.5) ---------- Total: 23,925-00 ---------- 4. It appears that there was some controversy about the price at which the lands were to be alloted to the Socities concerned. The Deputy Town Planning Officer, Rajkot had initially informed the Collector that for the land in question, Rs.550/- per sq.mt. would be proper price. The Collector appears to have asked him to re-examine the price whereafter the Dy. Town Planner informed the Collector that the real market price as on 28/8/1992 was in the range of Rs.850/- to Rs.1,000/depending on the location of the land. ( This is as per the reply on behalf of the State Government in this matter) . The petitionr as well as Respondent Nos. 3,4 and 5 societies made representations against that price contending that it was excessive. The respondent Nos. 4 and 5 went on making representation separately and collectively objecting to that price. It appears that in May, 1997, respondent nos. 3,4 and 5 ultimately showed readiness to take the land at Rs.1,000/- per sq.mt. It is the case of the petitioner that the petitioner society had undoubtedly a status which was not lesser than that of the respondents nos. 3,4 and 5 inasmuch as the District Land Committee had made recommendations in its favour also. It is the further case of the petitioner that on the Respondents Nos. 3,4 and 5 agreeing to accept the price of Rs.1,000/-, the Respondents Nos.1 and 2, decided to allot almost the entire land of Survey No. 438 to Respondent Nos. 3,4 and 5 including the parcel that was recommended in favour of petitioner without any notice or intimation to petitioner society. The petitioner society learnt that this decision was communicated to the Respondents Nos. 3,4 and 5 on 31/5/1997. The petitioner society therefore submitted to the Government on 7/6/1997 that it should not be excluded and it may be similarly allotted part of the land of Survey No. 438 which had been recommended to it by the District Land Committee at Rs.1,000/- per sq.mt. It also filed necessary affidvit before the Government on 25/6/1997. There was no proper response from the Respondents Nos.1 and 2. It was, therefore, constrained to file this petition on 16/7/1997. 5. As stated above, the petitioner challenges the decisions of the Respondents Nos. 1 and 2 in favour of Respondents Nos. 3,4 and 5 ignoring the claim of the petitioner society. Amongst others, the petitioner has sought interim relief in prayer clause 11(D) restraining the Respondents Nos. 1 and 2 from acting any further in the matter of granting land to Respondents Nos. 3,4 and 5. The matter came up before me on 17/7/1997 when Mr. C.L.Soni, learned Counsel appearing for the petitioner prayed for interim relief. Mr. A.J.Patel appeared with Mr. N.N.Pandya for the Respondents Nos. 3 to 5 who had filed Caveats. He tendered two affidavits on behalf of Respondents Nos. 3 to 5, both affirmed by one Jayantilal Vasoya, President of Respondent No. 3 society. After hearing both learned Counsel at length and in view of the narration of facts as stated above, I thought it necessary to grant ad-interim relief in terms of prayer Clause 11(D) until further orders and the same was accordingly granted. Notice was also directed to be issued to Respondents Nos. 1 and 2 making it returnable on 31st July, 1997. 6. The above referred Mr. Vasoya filed a further affidavit in reply on 28/7/1997 on behalf of Respondents nos. 3 to 5. One Mr. H.J.Shah, Deputy Secretary of the Revenue Department , filed an affidavit-in-reply on behalf of Respondents Nos. 1 and 2 on 30th of July, 1997. A rejoinder was filed to the affidavits of Respondents Nos. 3 to 5 by one Shri Kaladhar Arya, President of petitioner society on 31st July, 1997. Mr. Arya filed a seperate rejoinder on the same day i.e. on 31/7/1997 to the reply filed on behalf of the State. The Affidavit-in-sur-rejoinder thereto was filed by above referred Jayantilal Vasoya on behalf of Respondents Nos. 3 to 5 on 4th of August, 1997. Since the matter is concerning the allotment of land to Government employees and since all of them belong to Class III an Class IV and also since the members of Respondents Nos. 3 to 5 had in the meanwhile made their payment to the Respondent Nos. 1 and 2, I thought it fit that the matter should be heard finally at the earliest. In fact both learned Counsel appearing for the parties as well as Mr. S.H.Sompura, learned Assistant Government Pleader suggested this course of action. On 12/8/1997, the matter was therefore directed to be placed for final disposal on 26th of August, 1997, Rule was issued and service thereof was waived on behalf of the respondents.The matter was heard at length thereafter from time to time , it was directed to be treated as Part Heard on 10/9/1997 and finally on 22/10/1997, the case was adjourned for verdict to 20/11/1997 due to ensuing Diwali Vacation. As stated above, I have heard learned Counsel appearing for all the parties at length and they have assisted me ably in going through relevant provisions of the statute, the Government Circular as well as the other material on record. 7. Before I further deal with the matter, it is necessary to note the context within which the controversy has arisen. There is no dispute that the concerned land is urban surplus vacant land lying with the State Government which it wants to dispose of. The relevant provision of Sec.23 of the Urban Land (Ceiling and Regulations) Act, 1976 reads as follows :- Disposal of vacant land acquired under the Act:- (1) It shall be competent for the State Government to allot, by order, in excess of the ceiling limit any vacant land which is deemed to have been acquired by the State Government under this Act or is acquired by the State Government under any other law, to any person for any purpose ralating to, or in connection with, any industry or for providing residential accommodation of such type as may be approved by the State Government to the employees of any industry and it shall be lawful for such person to hold such land in excess of the ceiling limit. Explanation- For the purposes of this section- (a) Whether any land with a building has been acquired by the State Government under any other law such building has been subsequently demolished by the State Government, then, such land shall be deemed to be vacant land acquired under such other law. (b) "Industry" means any business, profession, trade, undertaking or manufacture. (2) In making an order of allotment under sub-section (1), the State Government may impose such conditions as may be specified therein including a condition as to the period within which the industry shall be put in operation or, as the case may be, the residential accommodation shall be provided for: Provided that if, on a representation made in this behalf by the allottee, the State Government is satisfied that the allottee could not put the industry in operation, or provide the residential accommodation, within the period specified in the order of allotment, for any good and sufficient reason, the State Government may extend such period to such further period or periods as it may deem fit. (3) Where any condition imposed in an order of allotment is not complied with by the allottee, the State Government shall, after giving an opportunity to the allottee to be heard in the matter, cancel the allotment with effect from the date of the non-compliance of such condition and the land allotted shall revest in the State Government free from all encumbrances. (4) Subject to the provisions of sub-sections (1),(2) and (3), vacant land deemed to have acquired by the State Government under this Act shall be disposed of by the State Government to subserve the common good on such terms and conditions as the State Government may deem fit to impose. (5) Notwithstanding anything contained in sub-sections (1) to (4), where the State Government is satisfied that it is necessary to retain or reserve any vacant land, deemed to have been acquired by that Government under this Act, for the benefit of the public, it shall be competent for the State Government to retain or reserve such land for the same. 8. Thus it can be seen from the above section, that the State Government is empowered to allot the excess vacant land appropriately under Sec.23(1) of the Act. Under Sec.23(2), the Government is empowered to impose such conditions as it may deem fit including the condition with respect to the period within which the residential/industrial (as the case may be) accommodation is to be provided. Sub-sec.(3) empowers the Government to cancel the allotment, if there is any breach of the conditions of the allotment. For our purpose, it is sub-sec (4) which is material. It provides that subject to the aforesaid provision of Sub-secs. (2),(3) and (4) the State Government is required under this sub-section to dispose of the vacant land "to subserve the common good" on such terms and conditions as it may deem fit to impose. 9. The respondent No.1 has issued guide-lines by its resolution dt. 30th May, 1987 of the Revenue Department with respect to the disposal of the lands under the said section. Mr. Sompura, learned Assistant Government Pleader has made a copy of the said resolution available seperately by placing it on record. The same is taken on record by consent and marked as Exhibit 'X-1'. Under clause (2) thereof, the land can be allotted to four different categories with the following equal percentage :- (1) Government Departments, Municipal 25% Corporations and Panchayats. (2) Urban Poor (EWS), LIG and MIG 25% (3) Government housing schemes and slum 25% Clearance Board. (4) Land to be developed according to the 25% commercial policy and to be disposed of by public auction. Clause 3 of the resolution deals specifically with the first category namely Government Departments, Municipal Corporations and Panchayats. Third sub-clause of this clause No.3 provides that the Government employees or the Co-operative Housing Societies formed by them will be included in this category. It further provides that it will be permissible to allot lands to them without auction, though at market price. Clause 10 of this resolution provides for formation of a Committee for each Urban agglomeration for deciding as to how much land, should be allotted for different categories as per percentage, to whom and at what rate. The members of the Committee are as follows:- (1) Collector of the concerned Urban -Chairman Agglomeration. (2) Competent Officer and Additional/ Member Deputy Collector of the concerned Secretary Agglomeration. (3) An Officer of the Backward Classes Member of the concerned Agglomerations. (4) Representative of concerned Municipal Member Corporation. (5) Representative of the concerned Urban Member Development Authority. (6) Deputy Town Planner Member 10. The Committee is empowered to invite applications at the District level and to invite offers by an advertisement also wherever necessary. It was supposed to examine the proposals received and then to make appropriate recommendations to the Government. The resolution further provided that with a view to dispose of such application expeditiously, wherever the price of the land (which was to be allotted), was less than Rs.25 Lacs, a Committee was constituted to take the final decision under the Chairmanship of the Secretary of the Finance Department. Clause 11 of the resolution provided that wherever the price of the concerned land was above Rs.25 Lacs, the permission of the cabinet will have to be obtained. Wherever the land was to be allotted at a price less than offset price or whenever any exceptions in the policy were to be made, the decision will have to be taken only after obtaining permission of the Government. 11. The writ petition annexes therewith a copy of the Minutes including recommendations of the District Land Committee of Rajkot held on 30th June, 1992 which is annexed at Annexure A to the petition. The petition also annexes therewith the Minutes of the further Meeting of the District Land Committee held on 5th August, 1992. These Minutes are annexed at Annexure C to the petition. Thereafter some other correspondence is annexed and earlier mentioned affidavit dt. 25/6/1997 made on behalf of the petitioner society showing its willingness to purchase the land at Rs.1,000/- is annexed at Annexure F. Annexure D is petitioner's notice dt. 7th June, 1997 addressed to the Deputy Secretary of the Revenue Department recording therein that petitioner society had initially been recommended for 3300 sq.mts. by the District Land Committee while making the overall recommendations for 23,924 sq.mts. In first para of that letter, it is recorded that the petitioners have however learnt that the Revenue Department by its decision dt. 31st May 1997 has decided to allot an area of 23,345 sq.mts. from the concerned Survey No. 438 of Rajkot as follows:- --------------------------------------------------------- Sr.No. Name of Society Area of land allotted. --------------------------------------------------------- 1. Shree Vividh Society 13,800 sq.mts. (Respondent No.3) 2. Shree Tripada Society 42,500 sq.mts. (Respondent No.4) 3. Shree Ankur Society 5.520 sq.mts. (Respondent No.5) ------------------------ Total: 23,345 sq.mts. ------------------------- It is further stated in that notice that these three societies have been called upon to deposit with the Government within 30 days the following amounts respectively :- (1) Rs.1,30,000-00 (2) Rs.40,25,000-00. (3) Rs.55,20,000-00. Thereafter it is stated in the notice that the aforesaid allotment made by the Government is contrary to the recommendations of the District Committee and it ignores and excludes the petitioner society completely. The notice calls upon the Deputy Secretary to reconsider the allotment orders and not to act thereon in the meanwhile. 12. At the time when this petition was filed, the petitioners were not having the copies of the particular allotment orders issued to the respondent Nos. 3 to 5 societies. They have subsequently been able to get a copy of the order issued to respondent no.5 society dt. 31/5/1997 allotting an area of 5520 sq.mts to it for the price of Rs.55,20,000-00. Mr. Soni has placed that copy on record and the same is taken on record by consent and marked as X.2. He called upon the Government Pleader to produce the orders in favour Respondent Nos. 3 and 4. They have not been produced. The allotment orders in favour of these societies are mentioned in the earlier referred notice dt. 7/6/1997 (Annexure D to the petition). This notice is also mentioned in Para 6 of the petition. A detailed reply has been filed on behalf of the respondent Nos. 1 and 2, yet there is no specific denial of the averments in Para 6 or Annexure D. On a querry from court, Mr. Sompura, AGP. on instructions, accepted that respondent nos. 3 and 4 have also been issued identical orders of allotment dt. 31/5/1997 for the area of land and the price stated in notice dt. 7/6/1997 (At Annexure D to the petition) referred to above. Mr. Vasoya in Para 3 of his reply dt. 17/7/1977 on behalf of Respondent Nos. 3 to 5 has however stated that the amount required from Respondent No.3 was Rs.1,38,000/- ( and not Rs.1,30,000/- as claimed by petitioner). Mr.Sompura has produced before the Court the following documents subsequently and they are also taken on record and marked respectively as follows :- (i) Minutes of the meeting dt. 9/7/1993 X-3. presided over by the Chief Secretary fixing the price at Rs.1000/-. (ii) Tripada Society's (Respondent No.4) X-4 letter dt. 6/2/1976 to Mr. Ashok Bhatt the then, Revenue Minister. (iii) Letter by Shri Keshubhai Patel, the X-5 then Chief Minister dt. 24/7/1996 to Shri Ashok Bhatt. (iv) Letter dt. 3/10/1996 addressed by X-6 Tripada Society (Respondent No.4) and also signed by Respondents Nos. 3 and 5 addressed to the Governor of Gujarat with copy to Secretary Revenue Department (v) Similar letter dt. 4/11/1996 by the X-7 three societies to the subsequent Chief Minister Shri Shankarsinh Vaghela. 13. The main submission of Mr. Soni, the learned Counsel appearing for the petitioner was that exclusion of the petitioner society from amongst those to whom the land was finally sought to be allotted, was arbitrary, unjustified and illegal. He submitted that Sec.23(4) of Urban Land (Ceiling and Regulation) Act, 1976 requires the State Government to dispose of the land to "sub-serve the common good". It implied non-discrimination and fair treatment to all. The Government resolution dt. 30th May, 1997 had constituted a high powered committee to make necessary recommendations and unless, there were cogent reasons, the recommendations of the Committee could not be ignored. Mr.Soni submitted that in the instant case, the petitioner society had applied for the allotment of land as early as on 20/1/1990 initially for 50 members and then on 25/5/1990 for 40 members from Survey No. 440. This is recorded in the Minutes of the District Land Committee held on 30th June, 1992. Those applications were much prior to the applications of Respondents Nos. 3,4 and 5. Since land from Survey No.440 could not be allotted, the petitioner society applied on 19/5/1992 for land from Survey No. 438. This could not be said to be much later than the application of Respondents Nos. 4 and 3 which were made on 15/2/1992 and 18/2/1992 respectively. In any event, it was prior to the application of Respondent No.5 which was made on 15/6/1992. The District Land Committee Meeting held on 30th June, 1992 recommended a parcel of 3000 sq.mts. for 30 members to the petitioner society and similar parcel for 30 members to the Respondent No.4 society. At that time, no recommendation was made in favour of the Respondent No.3 whose application was kept pending. The application of Respondent No.5 was not placed before the Committee at that time. The application of one another society namely Shri Vechanvera Society was also recommended for 9000 sq.mts in that Meeting. 14. It is in the subsequent Meeting of District Land Committee held on 5th August, 1992 that the Respondent No.3 and Respondent No.5 societies came to be recommended for 6675 sq.mts and 1650 sq.mts respectively. Mr. Soni submitted that there is nothing in the affidavit on behalf of the Respondents Nos. 1 and 2 to indicate that there was any error in the recommendations of the District Land Committee for which the recommendations were required to be interfered with or altered. 15. Mr. Soni submitted that petitioner society had also followed up their pending application with the Government. It had written to the Revenue Minister on 4/8/1994 in this behalf and it was informed on 14/11/1994 by the letter of the Additional Collector (Respondent No.2) that its application had been forwarded to the State Government in Revenue Department for its consideration as early as on 3rd August, 1992. That letter is annexed at Annexure B to the petition. The petitioner has annexed two letters dated. 20th January, 1997 and 5th June, 1997 at Annexures F-1 and F-2 respectively to their affidavit-in-rejoinder dt. 31st July, 1997. They make a very interesting reading. These letters are in Gujarati. "Letter dt. 20th January, 1997 addressed to the petitioner refers to the query of the petitioner society concerning public function held by the then Chief Minister on 18/12/96 at Rajkot. The letter states that with respect to petitioner's request for allotment of land from Survey No. 438 made to the Chief Minister in the Public Contact Programme on 18/12/1996, the same had been forwarded by a letter dt. 27/12/96 to the Land Development Commissioner, Revenue Department, Gandhinagar and that whatever decision is taken by the Government will be informed to the petitioner. The subsequent letter