Akhil Bhartiya Upbhokta Congress Vs State of Madhya Pradesh and others
J UD G M E N T
G.S. Singhvi, J.
1. Leave granted.
2. Whether the decision of the Government of Madhya Pradesh to allot 20 acres land comprised in Khasra Nos. 82/1 and 83 of village Bawadiya Kalan, Tehsil Huzur, District Bhopal to late Shri Kushabhau Thakre Memorial Trust (for short, "the Memorial Trust")/Shri Kushabhau Thakre Training Institute (respondent No. 5) without any advertisement and without inviting other similarly situated organisations/institutions to participate in the process of allotment is contrary to Article 14 of the 2Constitution and the provisions of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (for short, "the Act") and whether modification of the Bhopal Development Plan and change of land use is ultra vires the mandate of Section 23A of the Act are the questions which arise for consideration in this appeal filed against the order of the Madhya Pradesh High Court dismissing the Writ Petition filed by the appellant.
3. That facts necessary for deciding the aforementioned questions have been culled out from the pleadings of the parties and the records produced by the learned counsel for the State. The same are enumerated below:
i. On 18.6.2004, Shri Kailash Joshi made a written request to the Principal Secretary, Housing Department, Government of Madhya Pradesh (for short, "the Principal Secretary, Housing") by describing himself as a Convenor of the Memorial Trust for reservation of 30 acres land comprised in Khasra Nos.83, 85/1 and 85/2 of village Bawadiya Kalan, in favour of the Memorial Trust to enable it to establish an All India Training Institute in the memory of late Shri Kushabhau Thakre.
ii. Although, letter dated 18.6.2004 was addressed to the Principal Secretary, the same was actually handed over to Shri Babu Lal Gaur, the then Minister, Housing and Environment, Madhya Pradesh. He forwarded the same to the Principal Secretary for immediate action. The latter directed that steps be taken for placing the matter before the reservation committee. Simultaneously, letters were issued to Commissioner-cum-Director, Town and Country Planning, Bhopal (respondent No.3) and Collector, Bhopal (respondent No. 4) to send their respective reports.
iii. Respondent No.3 submitted report dated 8.7.2004 indicating therein that as per Bhopal Development Plan, land comprised in Khasra Nos.83 and 85/1 was reserved for residential and plantation purposes and Khasra No.85/2 was non government land. After going through the same, the Principal Secretary, Housing opined that land cannot be reserved for the Memorial Trust. However, Shri Rajendra Shukla, State Minister, Housing and Environment recorded a note that he had requested the Coordinator of the trust to send a revised proposal to the Government and directed that the new proposal be put up before him.
iv. In his report dated 26.7.2004, respondent No. 4 mentioned that land measuring 11.96 acres comprised in Khasra No.86 and land measuring 22.06 acres comprised in Khasra No.85/1 (total area 34.02 acres) was Nazool land and the same was recorded in the name of the State Government and Khasra No.85/2 belonged to Bhoomidar. He also mentioned that the land in question is covered by the Capital Project but there are no trees, religious structure or electricity lines, though a road was proposed by the Town and Country Planning Department.
v. While the process initiated for reservation of land was at a preliminary stage, Shri Kailash Joshi submitted an application dated 31.7.2004 to the Registrar, Public Trust, Bhopal (for short, `the Registrar') under the Madhya Pradesh Public Trusts Act, 1951 (for short `the 1951 Act') for registration of a trust in the name of respondent No. 5 by describing himself and S/Shri M. Venkaiah Naidu, Lal Krishna Advani, Balwant P. Apte and Sanjay Joshi as Trustees. In the application, Shri M. Venkaiah Naidu was shown as the first President of the trust and Shri Kailash Joshi as its Secretary and Managing Trustee.
vi. After complying with the procedure prescribed under the 1951 Act, the Registrar passed order dated 6.10.2004 for registration of the trust. The certificate of registration was issued on 24.12.2004.
vii. In the meanwhile, Shri Kailash Joshi sent letter dated 11.8.2004 to the Principal Secretary, Housing by describing himself as Managing 5 Trustee of respondent No.5 and submitted fresh proposal for reservation of 30 acres land out of Khasra Nos.82/1 and 83 of village Bawadiya Kalan in favour of respondent No.5.
viii. By letter dated 20.9.2004, respondent No. 3 informed the Secretary, Housing and Environment Department (respondent No.2) that 4665 acres land of villages Bawadiya Kalan and Salaiya had already been notified in Madhya Pradesh Gazette dated 2.5.2003 for town development scheme at Misrod. He also indicated that land in Khasra Nos.82 and 83 is included in the Scheme and notice to this effect had already been published under Section 50 of the 1973 Act.
ix. After some time, respondent No.3 sent letter dated 3.9.2004 to the Principal Secretary, Housing and pointed out that in the Bhopal Development Plan, 2005, land comprised in Khasra No.82 of Bawadiya Kalan village is earmarked for public and semi-public (health) purpose and land comprised in Khasra No.83 is earmarked for residential purpose. He also indicated that out of the total area of Khasra No.83 i.e. 11.96 acres, 24 metre wide road is proposed and 33 metres land adjacent to the bank of Kaliasot river is included in the green belt and out of 6 acres land for residential purpose, 2 acres had been reserved for office of the Madhya Pradesh Sanskrit Board and 6 thus, only 4 acres land was available. He sent another letter dated 21.9.2004 to the Principal Secretary, Housing mentioning therein that use of land comprised in Khasra No. 82/1 of village Bawadiya Kalan is shown as "health under public and semi-public" in the Bhopal Development Plan 2005 and use of the land comprised in Khasra No.83 is shown as residential and if land is to be allotted to the Memorial Trust, then the earlier land use will be required to be cancelled.
x. However, without effecting change of land use by following the procedure prescribed under the Act, the State Government issued order dated 25.9.2004 and reserved 30 acres land comprised in Khasra Nos. 82/1 and 83 of village Bawadiya Kalan in favour of the Memorial Trust in anticipation of approval by the land reservation committee, which was duly granted.
xi. As a sequel to the reservation of land, Deputy Secretary, Revenue Department vide his letter dated 30.9.2004 directed respondent No.4 to immediately send proposal to respondent No.3 for allotment of land to the Memorial Trust.
xii. In view of the directive issued by the State Government, Tehsildar, Capital Project (Nazul), Bhopal, on being instructed to do so, issued 7 advertisement dated 4.10.2004 and invited objections against the proposed allotment of 30 acres land to the Memorial Trust from Khasra Nos.82/1 and 83 of village Bawadiya Kalan. The same was published in "Dainik Pradesh Times". However just after two days, respondent No.4 vide his letter dated 8.10.2004 submitted proposal for allotment of 30 acres land to the Memorial Trust. In paragraph 6 of his letter, respondent No.4 clearly indicated that the land falls within the limits of Bhopal Municipal Corporation and, as such, in terms of Chapter IV-1 of the Madhya Pradesh Revenue Book Circular (for short, "the RBC") , the same should not be allotted at a price less than the minimum price. He also indicated that price of the land would be Rs.7,84,8000/-, of which 10 per cent should be deposited as a condition for allotment. After 2= months, respondent No. 4 sent letter dated 23.12.2004 to the Additional Secretary, Revenue Department and informed him that the Memorial Trust has not deposited 10 per cent of the premium.
xiii. On coming to know the aforesaid communications, Shri Kailash Joshi sent letters dated 19.2.20005 and 20.3.2005 to respondent No. 4 and Secretary, Revenue Department respectively and assured that the premium will be deposited immediately after the allotment of land.
xiv. After about 8 months of the submission of proposal for allotment of 30 acres land to the Memorial Trust, Shri Kailash Joshi sent letter dated 16.5.2005 to respondent No. 4 mentioning therein that the institute would require only 20 acres land. Thereupon, Nazul Officer, Capital Project, Bhopal sent letter dated 24.6.2005 to Shri Kailash Joshi and informed him that the premium of 20 acres land would be Rs.5,22,72,000/- and 10 per cent thereof i.e. Rs.52,27,200/- should be deposited as earnest money. However, the needful was not done and only Rs. 25,00,000/- were deposited on behalf of respondent No.
xv. For next about seven months, the matter remained under correspondence between different departments of the State Government. During the interregnum, Shri Babu Lal Gaur became Chief Minister of the State. On 24.10.2005, he directed that matter relating to allotment of land to respondent No.5 be put up in the next meeting of the Cabinet scheduled to be held on 26.10.2005. On the same day, Secretary, Revenue Department submitted a detailed note and suggested that keeping in view the limited resources available with the State Government, land should be auctioned so that the administration may garner maximum revenue. His suggestion was not accepted by the Council of Ministers, which decided to allot 20 acres 9 land in the name of the Memorial Trust at the rate of Rs.40 lakhs per hectare. The decision of the State Government was communicated to respondent No. 4 vide order dated 27.1.2006.
xvi. As a sequel to the allotment of land, Nazul Officer, Capital Project vide his letter dated 29.2.2006 called upon Shri Kailash Joshi (Secretary of respondent No. 5) to deposit Rs. 55,94,000/-. However, instead of depositing the amount Shri Kailash Joshi addressed letter dated 31.3.2006 to the Revenue Minister with the request that the premium may be waived because the Institute was being established in public interest and will be training the elected representatives and undertaking research on important issues and it will have no source of income. The political set up of the State Government readily obliged him inasmuch as the issue was considered in the meeting of Council of Ministers held on 9.5.2006 and it was decided that the amount of Rs. 25,00,000/- may be treated as the total premium and land be given to the Memorial Trust by charging annual lease rent of Re.1 only. This decision was communicated to respondent No. 4 vide letter dated 19.6.2006.
xvii. Subsequently, on a representation made by Shri Kailash Joshi, orders/communications dated 25.9.2004, 27.1.2006 and 19.6.2006 1 were amended and the name of respondent No. 5 was inserted in place of the Memorial Trust. Thereafter, lease agreement dated 6.1.2007 was executed between the State Government and Secretary of respondent No.5 in respect of 20 acres land for a period ending on 05.12.2037 at a premium of Rs. 25,00,000/- and an yearly rent of Re.1.
xviii. Since the use of land comprised in Khasra Nos. 82/1 and 83 of village Bawadiya Kala was shown in the Bhopal Development Plan as public and semi-public (health) and the same could not have been utilized for the purpose of respondent No. 5, the State Government issued notification dated 6.6.2008 under Section 23-A(1)(a) of the Act proposing change of land use in respect of 19.75 acres land of Khasra No.82/1(part) of Village Bawadiya Kalan from public and semi-public (health) to public and semi public and invited objections/suggestions. The notification was published in the Official Gazette and two newspapers, namely, "Dainik Bhaskar" and "Sandhya Prakash" dated 9th and 10th June, 2008. Five persons representing Bawadiya Uthaan Samiti, "Sangwari" - Society for the Resource Companion, Koshish Society, Neeraj Housing Society, Satpura Vigyan Sabha and Swadesh Developers and Colonizers filed their objections against the proposed 1 change of land use. They were given opportunity of hearing by Deputy Secretary, Housing and Environment Department, who opined that the objections were untenable. Her recommendation was approved by the Secretary, Housing and Environment Department and the concerned Minister. Thereafter, final notification dated 5.9.2008 was issued under Section 23-A(2) of the Act.
4. The appellant, who is engaged in public welfare activities in general and consumers welfare in particular and claims to have received awards for good and meritorious performance including Swami Vivekananda Award challenged the allotment of land to respondent No.5 in Writ Petition No.10617 of 2007, on the grounds of violation of Article 14 of the Constitution and arbitrary exercise of power. The Division Bench of the High Court summarily dismissed the Writ Petition by observing that land belongs to the Government and it is for the Government to decide whom the same should be allotted as per its policy and no case of violation of any legal or constitutional right has been made out by the petitioner.
5. In response to the notice issued by this Court, counter dated 23.3.2010 was filed on behalf of respondent Nos.1 to 4 with an affidavit of Shri Kishore Kanyal, Nazul Officer/SDO, T.T. Nagar, Bhopal. After the 1arguments were heard on 3.1.2011, additional affidavit dated 10.1.2011 was filed by Shri Umashankar Bhargav, Nazul Officer, Bhopal giving the details of various proceedings which culminated in the allotment of land to the Memorial Trust, subsequent change in the name of the allottee and change of land use under Section 23-A. Along with his affidavit, Shri Umashankar Bhargav enclosed list showing allotment of land to various institutions, organizations and individuals and copy of order dated 28.10.2009 passed by the Division Bench of the High Court in Writ Petition No.4088 of 2009. In paragraph 13 of his affidavit, the deponent made a categorical statement that neither the petitioner nor any member of the public submitted any objection against the proposed change of land use.
On 13.1.2011, the Court directed the State Government to file an affidavit to show as to how many allotments have been made at an yearly rent of Re. 1/-. Thereupon, Shri Anil Srivastava, Principal Secretary, Revenue Department, Government of Madhya Pradesh filed an affidavit along with list of 69 institutions and organizations to whom land was allotted at an annual rent of Re. 1 only without charging any premium. After the arguments were concluded, another affidavit of Shri Umashankar Bhargav was filed on 18.1.2011. He tendered apology for 1making a wrong statement in paragraph 13 of affidavit dated 10.1.2011 and filed copies of the following documents:
i. Application dated 18.09.2007 made by Shri Kailash Joshi for erection of building in Khasra No. 82/1, Bawadiya Kalan;
ii. Letter dated 04.02.2008 sent by respondent No.3 to the Principal Secretary, Housing, proposing change of land use of Khasra No.82/1 (part) from public and semi public (health) and road to public and semi public and road;
iii. Paper publications dated 09.06.2008 and 10.06.2008;
iv. Notice dated 04.08.2008 issued to the objectors;
v. Note-sheets dated 01.09.2009 and 02.09.2009 of the Housing and Environment Department;
vi. Letter dated 13.09.2006 sent by respondent No.4 to the Principal Secretary, Housing, letter dated 06.10.2006 issued by the State Government for amending memo dated 25.09.2004 and letter dated 02.11.2006 sent by the State Government to respondent No.4 for amendment of orders dated 27.01.2006 and 19.06.2006. Learned counsel for the appellants also placed on record xerox copy of the cover page of Writ Petition No. 933 of 2005 filed by the appellant by way of public interest litigation challenging the allotment of land, which was 1reserved for park, lawn, parking and open spaces by Madhya Pradesh Housing Board to Punjabi Samaj, Bhopal as also copy of the interim order passed by the High Court whereby the allottee was restrained from raising further construction. Arguments:
6. Shri Raju Ramchandran, learned senior counsel for the appellant, criticized the impugned order and argued that the High Court committed serious error by summarily dismissing the writ petition without examining and adjudicating the important questions of law relating to violation of Article 14 of the Constitution and the provisions of the Act and the Rules. Learned senior counsel submitted that the exercise undertaken by the State Government for reservation of land and allotment of a portion thereof to respondent No.5 without any advertisement and without adopting a procedure consistent with the doctrine of equality enshrined in Article 14 of the Constitution and waiver of a substantial portion of the premium are acts of gross favoritism and, therefore, the allotment in question should be declared as nullity. Shri Ramchandran then argued that the notifications issued by the State Government for change of land use are liable to be quashed because the same are ultra vires the provisions of Section 23A(1) 1and (2) of the Act.
Learned senior counsel referred to notification dated 06.06.2008 to show that the same did not contemplate modification of Bhopal Development Plan for any proposed project of the Government of India or the State Government and its enterprise or for any proposed project relevant to development of the State or for implementing a scheme framed by the Town and Country Development Authority (for short `the Authority') and argued that the development plan cannot be modified under Section 23A(1) for the benefit of a private individual, or group of persons or organization or institution. Learned senior counsel submitted that the notice issued under Section 23A(2) was incomplete inasmuch as the draft modified plan was not published so as to enable the members of public to effectively oppose the proposed modification of the development plan. In the end, Shri Ramchandran argued that the decision of the State Government to indirectly reserve the land in favour of Respondent No.5 with retrospective effect is liable to be quashed because as on the date of reservation the said respondent had not been registered as a trust.
7. Shri Ravi Shanker Prasad, learned senior counsel appearing for the State of Madhya Pradesh and other official respondents, challenged the locus standi of the appellant on the premise that the averments contained in the writ petition were vague to the core and the High Court rightly refused to 1entertain the same as a petition filed in public interest. Learned senior counsel then referred to the provisions of the Act, the Madhya Pradesh Government Rules of Business, the RBC and argued that the impugned allotment cannot be termed as arbitrary or vitiated due to violation of Article 14 because the State Government has a long standing policy of allotting land to social, cultural, religious, educational and other similar organizations/institutions without issuing advertisement or inviting applications from the public. In support of this argument, learned senior counsel referred to the list of the allottees annexed with affidavit dated 10.1.2011 of Shri Umashankar Bhargav.
Learned senior counsel relied upon the judgments of this Court in Ugar Sugar Works Ltd. v. Delhi Administration (2001) 3 SCC 635, State of U.P. v. Chaudhary Ram Beer Singh (2005) 8 SCC 550, State of Orissa v. Gopinath Dash (2005) 13 SCC 495 and Meerut Development Authority v. Association of Management Studies (2009) 6 SCC 171 and argued that the Court cannot exercise the power of judicial review to nullify the policy framed by the State Government to allot Nazul land without advertisement. Shri Ravi Shanker Prasad referred to paragraph 26 of the RBC and argued that the State Government is possessed with the power to make allotment without charging premium or waive the same.
Learned senior counsel then relied 1upon a passage from Chapter IV of the Law of Trusts and Charities by Atul M Setalvad, judgments of this Court in State of Uttar Pradesh v. Bansi Dhar (1974) 1 SCC 447 and Canbank Financial Services Ltd. v. Custodian (2004) 8 SCC 355 and argued that intention to create a trust was sufficient for making an application for reservation and allotment of land in favour of respondent No.5. He submitted that while making request for reservation of land in favour of the Memorial Trust, Shir Kailash Joshi had made it clear that the same will be used for establishing a training institute in the name of late Shri Khushabhau Thakre and this was a clear indication to the State Government that a trust will be created for managing the institute.
8. Shri Ranjit Kumar, learned senior counsel appearing for respondent No.5, submitted that this Court should not interfere with the impugned allotment because at every stage of the proceedings i.e. reservation of land, formation of trust and change of land use, objections were invited from public but at no stage the appellant had filed any objection. The learned counsel extensively referred to the RBC, the provisions of the Act and Madhya Pradesh Nagar Tatha Gram Nivesh Viksit Bhoomiyo, Griho, Bhavano Tatha Anya Sanrachanao Ka Vyayan Niyam, 1975 (for short `the Rules') and argued that the allotment of land to respondent No.5 and change of land use are not vitiated due to violation of any constitutional or legal principle warranting interference by the Court.
Shri Ranjit Kumar relied upon Sections 3,5 and 6 of the Indian Trusts Act, 1882 and Sections 2,4,5,6,8,11,32 and 33 of the 1951 Act and argued that intention to create trust was sufficient to enable Shri Kailash Joshi to make applications for reservation and allotment of land in the name of the institute and, in any case, the appellant cannot take advantage of non-registration of the trust up to 6.10.2004 because on the date of actual allotment i.e. 27.01.2006 the trust stood registered. Learned senior counsel also emphasized that once the trust was registered, the factum of registration will relate back to the date of application i.e. 31.07.2004, which was prior to the reservation of land by the State Government. In the end, Shri Ranjit Kumar submitted that the Court may not nullify the impugned allotment at the instance of the appellant because it did not question hundreds of similar allotments made in favour of other organizations/institutions.
Learned senior counsel also relied upon the judgment of this Court in Harsh Dhingra v. State of Haryana (2001) 9 SCC 550 and argued that the impugned allotment may not be quashed and the law which may be laid down by this Court should govern the allotments, which may be made in future.
9. We have considered the respective submissions. For deciding the questions arising in the appeal, it will be useful to notice the relevant provisions of the Act, the Rules and the RBC.
10. The Act was enacted to make provisions for planning and development and use of land; to make better provisions for the preparation of development plans and zoning plans with a view to ensure that town planning schemes are made in a proper manner and they are effectively executed. The Act also provides for constitution of Town and Development Authority for proper implementation of Town and Country Development Plan and for the development and administration of special areas through Special Area Development Authority and also to make provisions for the compulsory acquisition of land required for the purpose of the development plans and for achieving the objects of the Act. Chapter IV of the Act (Sections 13 to 19) contains provisions relating to planning areas and development plans. Under Section 13(1), the State Government is empowered to constitute planning areas for the purposes of the Act and define limits thereof.
In terms of Section 13 (2), the State Government can alter the limits of the planning area, amalgamate two or more planning areas, divide any planning area into two or more planning areas and also declare that whole or part of the area constituting the planning area shall cease to be 2so. Section 14 casts a duty on the Director of Town and Country Planning to prepare an existing land use map, a development plan and do other activities specified in clauses (d) and (e) of that section. Section 15 contains the procedure for preparation of existing land use map. Section 16 lays down that after publication of the existing land use map under Section 15 no person shall change the use of any land or carry out any development of land for any purpose other than those indicated in the existing land use map without prior permission of the Director.
It also lays down that no local authority or any officer or other authority shall grant permission for change in use of land in violation of the existing land use map. Section 17 (as amended by M.P. Act No. 8 of 1996) lays down that a development plan shall take into account any draft five-year and Annual Development plan of the district prepared under the Madhya Pradesh Zila Yojana Samiti Adhiniyam, 1995 in respect of the planning area and shall broadly indicate the land use proposed in the planning area; allocate broadly areas or zones of land, keeping in view the regulations of natural hazard prone areas, for residential, industrial, commercial or agricultural purposes; open spaces, parks and gardens, green-belts, zoological gardens and playgrounds; public institutions and offices and such special purposes as the Director may consider proper. Other factors enumerated in clauses (c) to (j) are also required to be taken into consideration while preparing a development plan. Section 17-A(1) mandates the constitution of a Committee consisting of various persons specified in clauses (a) to (i) thereof.
The role of the Committee is to hear the objections received after publication of the draft development plan under Section 18 and suggest modifications or alterations, if any. Section 18 provides for publication of the draft development plan for inviting objections and suggestions from public. The objections and suggestions, if any, received are required to be placed before the Committee constituted under Section 17-A(1) which shall, after giving opportunity of hearing to the affected persons, suggest appropriate modifications in the draft development plan. After receiving the report of the Committee, the Director is required to submit the development plan for approval of the Government. Section 19 provides for approval of the development plan with or without modifications by the State Government. In a given case the State Government can return the development plan with a direction that fresh development plan be prepared.
Where the State Government approves the development plan with modification, a notice is required to be published in the Gazette inviting objections and suggestions in respect of such modification and final plan is to be published after considering the objections and suggestions, if any, received and giving opportunity of 2hearing to those desirous of being heard. In terms of sub-section (5) of Section 19 the development plan comes into operation from the date of publication of the notice in the Gazette. Chapter V deals with zoning plan. Section 20 lays down that the local authority may, on its own motion, prepare a zoning plan after publication of the development plan. If the State Government sends a requisition for that purpose then also the local authority is required to prepare a zoning plan. Section 21 specifies the matters which are to be incorporated in the zoning plan. By virtue of Section 22, the provisions of Sections 18 and 19 have been made applicable for the purpose of preparation, publication, approval and operation of zoning plan. Section 23(1) empowers the Director to undertake a review and evaluation of the development plan either on his own motion or in terms of the directions given by the State Government. Likewise, under Section 23(4) the local authority can undertake review and evaluation of the zoning plan on its own motion or as per the direction of the State Government or the Director. Section 23-A was inserted in the Act by M.P. Act 22 of 1992 and was substituted by M.P. Act 22 of 2005.
In terms of Section 24(1), the overall control of development and use of land in the State vests in the State Government. Section 24(2) lays down that subject to the control of the State Government under sub-section (1) and the rules made under the Act, the 2overall control of development and use of land in the planning area shall vest in the Director from the date appointed by the State Government by notification. Sub-section (3) empowers the State Government to make rules to regulate control of development and use of land in planning area. Section 25(1) lays down that after coming into force of the development plan, the use and development of land shall be in accordance with the development plan. Section 26 lays down that after coming into operation of the development plan, no person shall change the use of any land or carry out any development without written permission of the Director.
Proviso to this section contains some exceptions in which works can be carried out without prior permission of the Director. Chapter VII (Sections 38 to 63A) provides for establishment of Town and Country Development Authority and its status as a body corporate, constitution of the Authority, tenure and remuneration etc. of Chairman and Vice Chairman, appointment of Chief Executive Officer and other officers and servants. Section 49 specifies the factors which may be included in a town development scheme. Section 50 regulates preparation of a town development scheme and publication thereof in the Gazette etc. Section 58 empowers the authority to make regulation for disposal of developed lands, houses, buildings and other structures.
This is subject to the rules which may be made by the State Government in this 2behalf. Section 85, which finds place in Chapter XI, confers power upon the State Government to make rules for carrying out the purposes of the Acts. For the sake of reference, Sections 14(a), (b), 15, 17(a), (b), 23-A, 25(1), 26 and 58 of the Act are reproduced below: "14. Director to prepare development plans. --Subject to the provisions of this Act and the rules made thereunder, the Director shall, -- (a) prepare an existing land use map; (b) prepare a development plan; 15. Existing land use maps –
(1) The Director shall carry out the survey and prepare an existing land use map indicating the natural hazard prone areas] and, forthwith publish the same in such manner as may be prescribed together with public notice of the preparation of the map and of place or places where the copies may be inspected, inviting objections and suggestions in writing from any person, with respect thereto within thirty days from the date of publication of such notice. (2)After the expiry of the period specified in the notice published under sub-section (1), the Director may, after allowing a reasonable opportunity of being heard to all such persons who have filed the objections or suggestions, make such modifications therein as may be considered desirable. (3)As soon as may be after the map is adopted with or without modifications the Director shall publish a public notice of the adoption of the map and the place or places where the copies of the same may be inspected. (4)A copy of the notice shall also be published in the Gazette and it shall be conclusive evidence of the fact that the map has been duly prepared and adopted. 217. Contents of development plan.—
A development plan shall take into account any draft five-year and Annual Development plan of the district prepared under the Madhya Pradesh Zila Yojana Samiti Adhiniyam, 1995 (No. 19 of 1995) in which the planning area is situated and shall, (a) indicate broadly the land use proposed in the planning area;(b) allocate broadly areas or zones of land, keeping in view the regulations for natural hazard prone areas, for- (i) residential, industrial, commercial or agricultural, purpose;(ii) open spaces, parks and gardens, green-belts, zoological gardens and playgrounds;(iii) public institutions and offices;(iv) such special purposes as the Director may deem fit;23-A. Modification of Development Plan or zoning Plan by State Government in certain circumstances. –
(1)(a) The State Government may, on its own motion or on the request of a Town and Country Development Authority, make modification in the development plan or the zoning plan for any proposed project of the Government of India or the State Government and its enterprises or for any proposed project related to development of the State or for implementing a scheme of a Town and Country Development Authority and the modification so made in the development plan or zoning plan shall be an integral part of the revised development plan or zoning plan.(b) The State Government may, on an application from any person or an association of persons for modification of development plan or zoning plan for the purpose of undertaking an activity or scheme which is considered by the State Government or the Director, on the advice of the Committee constituted by the State Government for this purpose, to be beneficial to the society, make such modification in the 2development plan or zoning plan as may be deemed necessary in the circumstances of the case and the modification so made in the development plan or zoning plan shall be an integral part of the revised development plan or zoning plan.
(2) The State Government shall publish the draft of modified plan together with a notice of the preparation of the draft modified plan and the place or places where the copies may be inspected, continuously for two days in such two daily newspapers which are in the approved list of Government for advertisement purpose having circulation in the area to which it relates and a copy thereof shall be affixed in a conspicuous place in the office of the Collector, inviting objections and suggestions in writing from any person with respect thereto within fifteen days from the date of publication of such notice. After considering all the objections and suggestions as may be received within the period specified in the notice and shall, after giving reasonable opportunity to all persons affected thereby of being heard, the State Government shall confirm the modified plan.
(3) The provisions of Sections 18, 19 and 22 shall not apply for modification made by the State Government."25. Conformity with development plan. -(1) After the coming into force of the development plan, the use and development of land shall conform to the provisions of the development plan:[Provided that the [Director] may, as its discretion, permit the continued use of land for the purpose for which it was being used at the time of the coming into operation of the development plan:]Provided further than such permission shall not be granted for a period exceeding seven years from the date of coming into operation of the development plan. 26. Prohibition of development without permission.- After the coming into operation of the development plan, no person 2shall change the use of any land or carry out any development of land without the permission in writing of the Director.
Provided that no such permission shall be necessary,-(a)for carrying out works for the maintenance, repair or alteration of any building which does not materially alter the external appearance of the building;(b)for carrying out of work for the improvement or maintenance of a highway, road or public street by the Union or State Government or an authority established under this Act or by a local authority having jurisdiction, provided that such maintenance or improvement does not change the road alignment contrary to the provisions of the development plan;(c)for the purpose of inspecting, repairing or renewing any drains, sewers, mains, pipes, cables, telephone or other apparatus including the breaking open of any street or other land for that purpose;(d) for the excavation or soil-shaping in the interest of agriculture;(e) for restoration of land to its normal use where land has been used temporarily for any other purposes;(f) for use, for any purpose incidental to the use of building for human habitation, or any other building or land attached to such building;(g) for the construction of a road intended to give access to land solely for agricultural purposes:[Provided further that in a planning area to which rules made under sub-section (3) of Section 24 are made applicable, such permission may be given by such authority as may be provided in the said rules.]58. Disposal of land, buildings and other development works.- Subject to such rules as may be made by the State Government in this behalf, the Town and Country Development Authority shall, by regulation, determine the procedure for the disposal of developed lands, houses, buildings and other structures."
11. In exercise of the powers conferred upon it under Section 58 read with Section 85, the State Government framed the Rules. Rule 3 declares that no Government land vested in or managed by the Authority shall be transferred except with the general or special sanction of the State Government. Rule 4 lays down that all other land i.e. "the Authority Land" shall be transferred in accordance with the following rules. Rule 5 prescribes four modes of transfer of the Authority land. These are: (a)By direct negotiations with the party; or (b)By public auction; or (c)By inviting tenders; or (d)Under Concessional terms." Rules 5-A to 27 enumerate the steps required to be taken for transfer of land by different modes. Rule 28 lays down that transfer of the Authority land under Rule 27 shall be made on such terms and conditions as may be fixed by the Authority. Rules 29 to 48 provide for matters ancillary to the transfer of the Authority land i.e. execution of lease, payment of rent by the transferee etc.
12. What is significant to be noted is that there is no provision in the Act or the Rules for disposal and/or transfer of land in respect of which a regional plan or development plan or zonal plan has been prepared. The only provision which has nexus with the Government land is contained in 2Rule 3 which, as mentioned above, imposes a bar against the transfer of Government land vested in or managed by the Authority except with the general or special sanction of the State Government.
13. We may now notice the relevant provisions of the RBC some of which have been relied upon by the learned senior counsel appearing for the respondents to justify the reservation and allotment of land in favour of respondent No. 5. Part IV of the RBC deals with the management and regulation of Nazul land falling within the limits of municipal corporations, municipal councils and notified areas; and transfer thereof by lease, sale etc. Paragraph 12 of this part lays down that Nazul land can be disposed of by way of permanent lease, temporary lease, on Bedawa karar, annual licence and also by transfer to the State Administration and department of any other State Government or Government of India or by vesting in any local authority.
In terms of paragraph 13(1), permanent lease can be granted either by auction or without auction. Paragraph 13(2) enumerates the contingencies in which permanent lease cannot be granted by auction. These include when the land in question is used for religious, educational, co-operative, public or social purposes. Paragraph 14 provides for reservation of the plots which are sold with the approval of the State 3Government on the conditions separately decided for each such plot. Paragraph 17 specifies the authorities who are competent to pass orders in respect of Nazul land. Under this paragraph, the power to grant lease of Nazul land for educational institutions, playgrounds, hospitals and other public purposes on concessional rate as also the power to grant lease of Nazul land for 30 years or less with a right of renewal vests with the State Government, if the mode of disposal is otherwise than auction.
The residuary power also vests with the State Government. Paragraph 18 lays down that a petition can be submitted to the higher authority against any order which may be passed by an officer subordinate to the State Government. Paragraph 19 lays down that every application for permanent lease of Nazul land should be made to the District Collector along with the relevant documents, maps etc. Under paragraph 20, the Collector is empowered to reject the application by recording reasons. If the application is not rejected then the Collector has to adopt the procedure specified in clauses (a), (b), (c), (d), (e) and (f) of this paragraph. If the plot of land is to be sold by auction then the same is required to be advertised or publicized by a recognized method. Paragraph 21 prescribes the mode of auction of lease rights. Any persons, desirous of participating in the auction is required to deposit 10 per cent of the premium.
Once the bid is approved by the competent authority, the bidder has to deposit the balance amount within 30 days. This paragraph also provides for forfeiture of the premium and recovery of the amount from the defaulter. Paragraph 23 specifies the minimum premium for different categories of plots. Paragraph 24 lays down the procedure to be followed for disposal of plot without auction. If any plot is proposed to be transferred at a concessional premium then the approval of the State Government is sine qua non. In case, the Collector is satisfied that the plot of land should be given without auction then the allottee is required to pay premium equivalent to average market price determined on the basis of the sale instances of last five years. In terms of paragraph 25, the Collector is required to submit report to the Commissioner or to the Government through the Commissioner after scrutiny of the matter at different stages. Paragraph 26 lays down that when Nazul land is allotted to non-government organisations or persons on favourable terms then the conditions specified therein should be scrupulously observed and there should be rigorous scrutiny of the proposal.
Under this paragraph, land can be allotted to educational, cultural and philanthropic institutions/organisations or Cooperative Societies, Housing Board and Special Area Authority constituted by the State Government. However, unregistered societies and private trusts are not eligible for allotment of land. 3This paragraph also contemplates allotment of land for religious purposes or to Jain Temple, Mosque, Church, Gurdwara etc. provided that there is no similar place within two kilometers of the site proposed to be allotted. Clause 1(a) and (b) of this paragraph prescribes the premium required to be paid by different types of bodies and institutions. Clause 3 prescribes the condition relating to construction of the building and Clause 5 provides for resumption of land in certain eventualities.
By Circular No.6/16/91/Sat/SA/2B, the Government prescribed the revised rates for allotment of Nazul land to caste and non-caste based social, religious and philanthropic organizations, the organizations engaged in welfare of women, educational and cultural organizations, public hospitals, co-operative societies, agriculture market committee, municipal corporation etc. By Circular No. F.6-173/96/Sat/SA/2B/Nazul dated 31.5.1996, the State Government prescribed the premium and rent to be charged for allotment of land to caste based and social institutions. By Circular No. F No. 6-140/07/SAT/Nazul dated 31.8.2007, the State Government decided to allot land without charging any premium at an annual rent of Re. 1/- for housing schemes meant for slum dwellers.
14. We shall now consider whether the State Government could allot 20 acres of land to respondent No.5 without issuing an advertisement or 3adopting a procedure consistent with the doctrine of equality so as to enable other similar organizations/institutions to participate in the process of allotment.
15. The concept of `State' has changed in recent years. In all democratic dispensations the State has assumed the role of a regulator and provider of different kinds of services and benefits to the people like jobs, contracts, licences, plots of land, mineral rights and social security benefits. In his work "The Modern State" MacIver (1964 Paperback Edition) advocated that the State should be viewed mainly as a service corporation. He highlighted difference in perception about the theory of State in the following words: "To some people State is essentially a class-structure, "an organization of one class dominating over the other classes"; others regard it as an organisation that transcends all classes and stands for the whole community. They regard it as a power- system. Some view it entirely as a legal structure, either in the old Austinian sense which made it a relationship of governors and governed, or, in the language of modern jurisprudence, as a community "organised for action under legal rules". Some regard it as no more than a mutual insurance society, others as the very texture of all our life. Some class the State as a great "corporation" and others consider it as indistinguishable from society itself."
16. When the Constitution was adopted, people of India resolved to constitute India into a Sovereign Democratic Republic. The words `Socialist' and `Secular' were added by the Constitution (Forty-second 3Amendment) Act, 1976 and also to secure to all its citizens Justice - social, economic and political, Liberty of thought, expression, belief, faith and worship; Equality of status and/or opportunity and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation. The expression `unity of the Nation' was also added by the Constitution (Forty-second Amendment) Act, 1976. The idea of welfare State is ingrained in the Preamble of the Constitution. Part III of the Constitution enumerates fundamental rights, many of which are akin to the basic rights of every human being. This part also contains various positive and negative mandates which are necessary for ensuring protection of the Fundamental Rights and making them real and meaningful. Part IV contains `Directive Principles of State Policy' which are fundamental in the governance of the country and it is the duty of the State to apply these principles in making laws. Article 39 specifies certain principles of policy which are required to be followed by the State. Clause (b) thereof provides that the State shall, in particular, direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to sub-serve the common good. Parliament and Legislatures of the States have enacted several laws and the governments have, from time to time, framed policies so that the national wealth and 3natural resources are equitably distributed among all sections of people so that have-nots of the society can aspire to compete with haves.
17. The role of the Government as provider of services and benefits to the people was noticed in R.D. Shetty v. International Airport Authority of India (1979) 3 SCC 489 in the following words: "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 Government are of many kinds. They comprise social security benefits, cash grants for political sufferers and the whole scheme of State and local 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 3 the nature of legal rights but the large majority of them are in the nature of privileges.........."
18. For achieving the goals of Justice and Equality set out in the Preamble, the State and its agencies/instrumentalities have to function through political entities and officers/officials at different levels. The laws enacted by Parliament and State Legislatures bestow upon them powers for effective implementation of the laws enacted for creation of an egalitarian society. The exercise of power by political entities and officers/officials for providing different kinds of services and benefits to the people always has an element of discretion, which is required to be used in larger public interest and for public good. In principle, no exception can be taken to the use of discretion by the political functionaries and officers of the State and/or its agencies/instrumentalities provided that this is done in a rational and judicious manner without any discrimination against anyone. In our constitutional structure, no functionary of the State or public authority has an absolute or unfettered discretion. The very idea of unfettered discretion is totally incompatible with the doctrine of equality enshrined in the Constitution and is an antithesis to the concept of rule of law.
19. In his work `Administrative Law' (6th) Edition, Prof. H.W.R. Wade, highlighted distinction between powers of public authorities and those of private persons in the following words: "... The common theme of all the authorities so far mentioned is that the notion of absolute or unfettered discretion is rejected. Statutory power conferred for public purposes is conferred as it were upon trust, no absolutely - that is to say, it can validly be used only in the right and proper way which Parliament when conferring it is presumed to have intended. Although the Crown's lawyers have argued in numerous cases that unrestricted permissive language confers unfettered discretion, the truth is that, in a system based on the rule of law, unfettered governmental discretion is a contradiction in terms."Prof. Wade went on to say: "...... The whole conception of unfettered discretion is inappropriate to a public authority, which possesses powers solely in order that it may use them for the public good. There is nothing paradoxical in the imposition of such legal limits. It would indeed be paradoxical if they were not imposed. Nor is this principle an oddity of British or American law; it is equally prominent in French law. Nor is it a special restriction which fetters only local authorities: it applies no less to ministers of the Crown. Nor is it confined to the sphere of administration: it operates wherever discretion is given for some public purpose, for example where a judge has a discretion to order jury trial. It is only where powers are given for the personal benefit of the person empowered that the discretion is absolute. Plainly this can have no application in public law. For the same reasons there should in principle be no such thing as unreviewable administrative discretion, which should be just as much a contradiction in terms as
