Vs. State of M.P. & Ors  Insc 19 (13 January 2006)
Sinha & P.P. Naolekar
(civil) 477 of 2006 [@ S.L.P. (C) No. 12442 of 2003] W I T H CIVIL APPEAL NO.
478 OF 2006 [@ SLP (C) No. 22582 of 2004] S.B. SINHA, J :
granted in S.L.Ps.
these appeals involving common questions of law and fact were taken up for
hearing together and are being disposed of by this common judgment.
Writ Petitions in the nature of public interest litigations were filed by the
Appellant herein before the High Court questioning allotment of lands measuring
20000 sq. feet and 8000 sq. feet in favour of Sh.
Dayal Aggrawal, proprietor Dainik Bhaskar Newspaper, Jabalpur and YMCA, private respondents
herein respectively by the State of Madhya Pradesh. Jabalpur Development Authority (JDA).
lands in question indisputably come within the Master Plan made in terms of the
Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (for short 'the 1973
Act") in relation to the town of Jabalpur brought about by the Jabalpur
Development Authority (for short "JDA"), a statutory authority
constituted thereunder. Prior to coming into force of the 1973 Act, the
legislature of the State of Madhya Pradesh enacted the Madhya Pradesh Town
Improvement Trusts Act, 1960 (for short "the 1960 Act") in terms
whereof Jabalpur Improvement Trust was created for the purpose of carrying out
the provisions thereof in the town of Jabalpur wherefor it was entitled to
acquire lands belonging to private parties and obtain such land from the State
and others by way of agreement, sale etc. There appears to be some dispute as
to whether the lands in question are acquired lands or nazul lands belonging to
the State of Madhya
Pradesh. However, it
is not in dispute that the town planning scheme framed by the said trust was
approved by the State and by a notification dated 20th September, 1974, the
lands stood vested in the trust in terms of sub-section (2) of Section 71 of
the 1960 Act.
lands in question are situate in the commercial area carved out of the said
Master Plan. The authority indisputably was entitled to allot plots in favour
of the applicants only in terms of the rules and regulations framed thereunder.
Allegedly, pursuant to or in furtherance of a purported policy decisions
adopted by it, the State of Madhya Pradesh
allotted land to Sh. Bishambhar Dayal Aggrawal, proprietor of 'Dainik Bhaskar',
a newspaper inter alia published from Jabalpur for establishment of an industry, i.e., for printing and publication of
a newspaper known as Dainik Bhaskar. The said newspaper is published from nine
states. Similarly, an application having been made by YMCA which is said to be
a charitable organization, 8000 sq. feet of land was allotted to it.
Appellant herein in the writ petition filed before the High Court inter alia
pleaded that a proposal was made for construction of an auditorium and a cinema
hall by the authority with the cooperation of the M.P. Films Development
Corporation wherefor foundation stone was also laid at the site which has since
been allotted in favour of Shri Bishambhar Dayal Aggrawal.
contentions of the Appellants before the High Court are as under:- Such
allotment having been made on a pick and choose method without following the
procedures laid down therefor and without issuing any advertisement was
illegal. Such allotment having moreover been made for industrial purpose, was
in contravention of the Master Plan drawn in terms of the provisions of the
1973 Act as thereby change of purpose as regard user thereof has been effected.
Even 50% rebate both in respect of the premium and ground rent was given in
utter violation of the statutory provisions.
contention of the Respondent before the High Court, on the other hand, was that
the said allotments were made in terms of a policy decision adopted by the
High Court by reason of the impugned judgments dismissed the writ petitions
filed by the Appellants herein holding that the grants in favour of the
Respondents were made for public purposes which the State was empowered to do
in terms of Rule 3 of the Madhya Pradesh Nagar Tatha Gram Nivesh Vikasit Bhoomiyo,
Griho, Bhavanotatha Anya Sanrachnaon Ka Vyayan Niyam, 1975 ( for short
"the 1975 Rules").
Sagar Tiwari, learned counsel appearing on behalf of the Appellant in Civil
Appeal arising out of SLP (C) No. 12442 of 2003, submitted that allotment of
valuable commercial land in favour of the Respondent was made in favour of the
private Respondent herein by the State in utter violation of the 1973 Act and
the 1975 Rules inasmuch as therefor no advertisement was made and by reason
thereof a commercial area has been converted into an industrial area. It was
urged that the High Court committed a manifest error in passing the impugned
judgment insofar as it failed to take into consideration that the State cannot
distribute its largess without following the provisions contained in the 1973
Act and the 1975 Rules which is violative of Article 14 of the Constitution of
commercial area, Mr. Tiwari submitted, would mean an area where shops,
restaurants, etc. are run and thus the Respondent cannot be entitled to run an
industry. It was pointed out that the State directed allotment of the said land
without fixing the quantum of the cost of the land, the market value whereof
was about Rs.2.50 crores reckoned at the rate of Rs.500/- per sq. ft.
Shrivastava, learned counsel appearing on behalf of the Appellant in Civil
Appeal arising out of SLP (C) 22582 of 2004, submitted that the High Court
committed an error in passing the impugned judgment insofar as it having held
that the land in question would come within the purview of Rule 3 of the 1975
Rules proceeded to hold that Rules 19 and 20 thereof shall apply which are applicable
only in relation to the land belonging to the authority and not to the State.
It was further submitted that even in terms of the 1975 Rules only land
measuring upto 5000 sq. feet could have been allotted in favour of YMCA but the
land allotted in its favour measures 8000 sq. feet.
K. Tankha, learned senior counsel appearing on behalf of the Respondent in
Civil Appeal arising out of SLP (C) 12442 of 2003, on the other hand, argued
that the Appellant herein did not approach the court with clean hands inasmuch
as he had not questioned similar allotments made in favour of other persons
similarly situated. It was submitted that the State passed the impugned orders
at the instance of the JDA itself in view of the fact that the lands in
question being nazul lands, the approval and/ or permission of the State therefor
was mandatorily required to be obtained..
further drew our attention to the events which took place subsequent to the
passing of the impugned order and would submit that keeping in view of the fact
that the Respondent had placed orders for printing machinery worth rupees two crores,
this is a fit case in which the court should not exercise its discretionary
jurisdiction in condoning delay of 156 days in filing the special leave
petition and/ or exercise its jurisdiction under Article 136 of the
Constitution. The allotment of land in any event having not been found to be
arbitrary or mala fide, there is no reason as to why this Court should
interfere with the judgment of the High Court.
Anoop G. Chaudari, learned senior counsel appearing on behalf of YMCA,
submitted that the Respondent being a charitable organization, it was entitled
for allotment of a piece of land having regard to the fact that other
communities similarly situated had been allotted lands. Our attention was drawn
to the fact that an application in this behalf was filed by YMCA before the JDA
whereupon the Chairman referred the matter to the State of Madhya Pradesh for passing necessary order. It is
true that no recommendation was made by the JDA for allotment of land but the
said application was not rejected either. Stand of the JDA in this behalf was
that it was for the State Government to make allotment. It was in the
aforementioned perspective the Government of Madhya Pradesh through its Under
Secretary by a letter dated 21.8.1996 communicated as under:
of the authorities land located in the civic centre, which has been sought by
Y.M.C.A. Institution, out of that 8000 sq. feet area should be allotted to the
General Secretary Y.M.C.A.
According to the
guidelines contained in the Revenue Department Circular No. M-6-
173/96/Seven/Sa/2-B/Nazul, dated 31.5.96, the said institution should be given
the land at a discount of 50% on the market rate and 50% discount should also
be given in the lease rent.
development authority should also work out the requisite terms and
conditions." It was urged that as in the instant case, the procedures
prescribed under the Rules had been followed and the discretion vested in the
State has been properly exercised, this Court should not exercise its
discretionary jurisdiction. It was urged that the JDA was bound to ask for the
sanction for such allotment in terms of Rule 3 of the 1975 Rules and as in the instant
case a direction has been issued, the same should be considered as sanctioning
the proposal of the JDA.
regard the submission that not more than 5000 sq. feet of land could be
allotted, it was urged that no such plea was taken before the High Court. It
was further pointed out that part of the land is to be utilized for commercial
Datta Makhija, learned counsel appearing on behalf of the State also supported
the impugned judgment and submitted that all actions were taken in terms of the
Rules. Legality or otherwise of the allotment of land in favour of the private
respondents herein according to the learned counsel must be judged in the
context of the law prevailing in this behalf.
adverting to the rival contentions as noticed hereinbefore, we may notice
relevant provisions of the statutes.
1960 Act was enacted to consolidate and amend the law relating to the
establishment of Improvement Trusts for the purpose of making and executing
Town Improvement Schemes in certain towns of Madhya Pradesh.
Improvement Trust was created under the said Act. Improvement Scheme framed by
the said Trust in terms of the provisions the statute was required to be
implemented. The State has the requisite power to sanction schemes in terms of
Section 51 of the 1960 Act. Section 52 postulates that upon such sanction it
shall announce, except in the case of a deferred street scheme, development
scheme or town expansion scheme that the Trust shall forthwith proceed to
execute the same by notification; and may order that any street, square, park,
open space or other land, or any other part thereof, which is the property of
the Government and managed by the Central Government or the State Government
shall, subject to such conditions as it may impose, vest in the Trust for the
purpose of the scheme. Publication of such a notification was to be treated as a
conclusive evidence that the scheme has duly been framed and sanctioned.
V of the 1960 Act provided for acquisition and disposal of land. The Trust in
terms of Section 67 was entitled to acquire, by purchase, lease or exchange any
land within the area comprised in a sanctioned scheme from any person under an
agreement which indisputably would include the State. Section 68 provided for
notice of acquisition of land.
1960 Act, however, was repealed and replaced by the 1973 Act in terms whereof
JDA was created.
1973 Act was enacted to make provisions for planning and development and use of
land; to make better provision for the preparation of development plans and
zoning plans with a view to ensuring that town planning schemes are made in a
proper manner and their execution is made effective; to constitute Town and
Country Planning Authority for proper implementation of town and country
development plan; to provide for the development and administration of special
areas through Special Area Development authority; to make provision for the
compulsory acquisition of land required for the purposes connected therewith.
use" has been defined in Section 2(e) to mean "the use of any land or
building or part thereof for the purpose of carrying on any trade, business or
profession, or sale or exchange of goods of any type whatsoever and includes
running of with a view to making profit, hospitals, nursing homes, infirmaries,
educational institutions, hotels, restaurants and and boarding houses (not
being attached to any educational institution) sarais, and also include the use
of any land or buildings for storage of goods or as an office, whether attached
to an industry or otherwise." "Development plan" has been
defined in Section 2(g) to include zoning plan and "existing land use
map" has been defined in Section 2(i) to mean a map indicating the use to
which lands in any specified area or put at the time of preparing the map and
includes the register prepared, with the map giving details of land-use.
IV of the 1973 Act provides for planning areas and development plans. The
procedures laid down for finalizing a development plan has been laid down
therein. Any person aggrieved by any order granting permission on condition or
refusing the same is entitled to prefer an appeal thereagainst before the
appellate authority in terms of Section 30 thereof. The revisional power in
this behalf is vested in the State.
49 of the 1973 Act provides for town development schemes.
on land use and land development is provided for under Section 53 thereof.
Section 58 provides for disposal of land in the following terms:
Disposal of land, buildings and other development works Subject to such rules as may be
made 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." Section 72 of
the 1973 Act envisages the State Government's power of supervision and control
over the acts and proceedings of the officers appointed under Section 3 and the
authorities constituted under the 1973 Act. Section 73 empowers the State
Government to give directions in the following terms:
Power of State Government to give directions.
In the discharge of their duties the
officers appointed under Section 3 and the authorities constituted under this
Act shall be bound by such directions on matters of policy as may be given to
them by the State Government.
If any dispute arises between the
State Government and any authority as to whether a question is or is not a
question of policy, the decision of the State Government shall be final."
Section 85 of the 1973 Act provides for rule making power.
State of Madhya Pradesh in exercise of its power conferred upon it under
Sections 58 and 85 of the 1973 Act made rules known as "Madhya Pradesh Nagar
Tatha Gram Nivesh Vikasit Bhoomiyo, Griho, Bhavanotatha Anya Sanrachnaon Ka Vyayan
3, 4, 5, 19 and 20 of the 1975 Rules which are material for our purpose read as
"No Government land vested in
or managed by the Authority shall be transferred except with the general or
special sanction of the State Government given in that behalf.
All other land (hereinafter called
the "Authority land") shall be transferred in accordance with the
Transfer of the Authority land shall
be as under:
negotiation with the party; or
The Authority may with the previous
approval of the State Government lease out on concessional terms any authority
land to any public institution or body registered under any law for the time
being in force.
Ordinarily, no lease on concessional
terms shall be allowed for the purposes of other than charitable purposes such
as for hospital educational institutions and orphanages." The State in
terms of the provisions of the 1973 Act and the 1975 Rules is a statutory
authority. Its jurisdiction to oversee functions of the authorities of the
Board as also power to issue directions are circumscribed by the provisions
contained in Sections 72 and 73 of the 1973 Act.
the lands in question was either acquired lands or nazul lands. It also stands
admitted that in terms of the provisions of Sub-section (2) of Section 71 of
the 1960 Act even the nazul lands stand admittedly vested in the authority and
having regard to the provisions contained in Section 87(1)(c)(iii) all assets
and liability of the Town Improvement Trust shall belong to and be deemed to be
the assets and liabilities of the Town and Country Development Authority
established in place of such Town Improvement Trust.
power of disposal of lands, buildings and other developmental works
indisputably vests in the Town and Country Development Authority i.e. the JDA.
We have, however, not been informed as to whether any regulation has been
framed by the authority for regulating the procedures for disposal of developed
lands, houses, buildings and other structures.
the lands in question is a developed land. The right to dispose of such lands,
therefore, vests in the JDA. Such right being subject to the rules made by the
State, we may closely examine the provisions thereof.
of the 1975 Rules puts an embargo in the power of the JDA to transfer
government land vested in or managed by it except with the general or special
sanction of the State Government given in that behalf. Rule 4 demonstrates that
all other land acquired by the authority become transferable in accordance with
the rules following. A distinction, thus, has been made between a government
land and the authority land. The rules following Rule 4 refer to the authority
lands as contradistinguished from the government land. Rule 5 again
categorically refers to the authority land in terms whereof transfer on concessional
terms is permissible. Rule 19 empowers the authority to lease out on concessional
terms any authority land to any public institution or body registered under any
law for the time being in force. Rule 20, however, provides that ordinarily no
lease of land on concessional terms shall be allowed for the purposes other
than charitable purposes such as for hospital, educational institutions and
right to transfer land on concessional terms, thus, is subject to two
approval of the
State is required therefor; and
no lease on concessional
terms shall be allowed for purposes other than charitable purposes such as
hospital, educational institutions and orphanages; which implies that in a
given situation a lease may be granted on concessional terms to any other
institution but therefor sufficient and cogent reasons must be assigned.
JDA, therefore, only had requisite authority to initiate the proceedings for
grant of lease of land on concessional terms wherefor only the previous
approval of the State was required to be taken. The State, except grant of
previous approval to the proposal of the JDA and ultimate grant of lease of its
land on concessional terms, has no other role to play.
of the authority land is, thus, within the domain of the JDA, subject only to
the previous approval of the State Government.
State and the J.D.A. being creatures of the statute were bound to act within
the four-corners thereof. Procedures for disposal of land having been laid down
in the rules, power in that behalf was required to be exercised strictly in
conformity therewith and de'hors the same.
State has formulated a purported policy decision on or about 10.8.1995. The
said policy decision is in relation to the land belonging to the State situated
in the entire State of Madhya
Pradesh. It has been
issued by the Revenue Department and not by the Town and Country Planning
Department. The said purported policy decision is not a policy decision in
terms of the 1973 Act or the rules framed thereunder. State, thus, could not
even issue any direction to J.D.A.
Respondent filed an application for allotment of land as far back as in 1986.
Further applications are said to have been filed on 4.3.1989 and 7.7.1992. The
Respondent filed an application on 7.7.1994 before the Nazul Officer for
allotment of land relying on or on the basis of the purported policy decision
adopted by the State that the land should be allotted to the said industry. It
is not in dispute that the land within Scheme No. 18 was reserved for
auditorium and cinema hall (for public and semi public purposes) at city level.
Purported policy by the State was adopted on 10.8.1995 only. Pursuant to or in
furtherance of the said policy decision, a decision was taken to allot the land
on 14.10.1995. It is only on 21st November, 1995 the State allotted the land in question in favour of the private
Respondent stating that the land is a government land.
5.18 of the writ petition, the Appellant averred:
the knowledge of the petitioner, the matter of allotment of land to respondent
No. 3 was never placed before the State Level Committee constituted vide memo,
dated 10.8.1995. There is no mention of the same in the memo of allotment dated
21.11.95. On the contrary, the said memo itself mentions that the matter of
payment of premium and ground rent would be decided subsequently by the
Committee. It is evidently clear that the State Government by passing its own
guidelines and without referring the matter to the said State Level Committee constituted
vide memo dated 18.10.95 directed allotment of the land in question to the
respondent No. 3 surreptitiously without making it public to the detriment of
other similarly situated press owners. Thus, action of the respondents No. 1
& 2 in allotting the land to the respondent No. 3 to the exclusion of
others is absolutely arbitrary illegal and discriminatory and the same is
liable to be struck down." In response to the said statements, the State
in its counter affidavit averred:
matter was referred to State Level Committee but the State Level Committee did
not entertain the matter as the land in question was not a Nazul land and
ultimately a decision was taken by the Government. There was no need or
occasion to publish public. One who needed land could always approach the State
Government and the State Government could decide the application on merits. No
publicity was needed as suggested." Thus, there appears to be some
contradiction in the said statement. If the land in question was not Nazul
land, question of exercising any jurisdiction thereover by the State in any
manner whatsoever, does not arise.
also accepted that the land was allotted for the purpose of establishing a
printing press and publication of newspaper. It is also curious to note that
despite allotment, the quantum of premium and annual rent was not fixed.
of a printing press would be an 'industry'. Even otherwise the said position
stands accepted as would appear from the letter dated 4.1.1996 of the Chairman
of the JDA addressed to the Deputy Secretary, Chief Minister Secretariat which
is in the following terms:
then Chairman (Divisional Commissioner) vide his letter No. 1173 dated 28.11.95
addressed to the Govt. in last para has mentioned that the plot in question
land use of which is public/ semi public as approved and adopted by Jabalpur
Development Scheme, on which there is a provision for construction of an
auditorium for the artist of the city level whereas the use of the press comes
under industrial use and this issue has been raised and under those
circumstances the permission for change of land use and handing over the
advance possession to Dainik Bhaskar Press.
13.12.95 you had a talk with reference to said letter with then Chairman (Divisional
Commissioner). It was said by you that the Civic Center John premises is for
commercial use and at page 246 of the Development Scheme in table No.
in column No. 5 the press-comes within the permissible use under collected
industries. In this regard, a letter from the then Chairman No. 1173 dated
28.11.95 was forwarded to you. For ready reference photocopies enclosed
herewith. The then Secretary public relations dept. Sh. Lakshmi Narayan told
the then Chairman (Divisional Commissioner) on telephone that the Hon'ble Chief
Minister has directed to send the proposal for allotment of this land to Dainik
Bhaskar Press." [Emphasis supplied] Yet again by a letter dated 13.12.1995
while directing that the quantum of premium and rent would be determined by a
permanent committee, it was stated:
lease will be executed in the name of Bishambar Dayal Aggrawal on the basis of
legal entity of Dainik Bhaskar Press, Jabalpur after the decision of the standing committee constituted by the State
Govt. This term and condition will be operative on advance possession as well.
permission for advance possession shall have to be obtained within two months
period from the Joint Director Nagar Tatha Gram Nivesh, Jabalpur. Prior to obtaining this development
permission and Govt. permission no development work will be commenced by you on
the concerned land." From the circular letter dated 1.3.1996, it is
manifest that even on 1.3.1996, the quantum of premium and rent had not been
fixed. It is only on 21st
September, 1998, the
decision of the State was communicated to JDA stating:
Govt. of Madhya Pradesh has taken decision that the assessment of the premium
for 20,000 sq. ft. land situated at Scheme No. 18 Civil Centre owned by Jabalpur
Development Authority allotted by the order dated 30.12.95 passed by the Govt.
of Madhya Pradesh to Dainik Bhaskar Press Jabalpur is to be made by extending
concession of 50% rate of the market value of the land in the area. This amount
will have to be deposited by Dainik Bhaskar Press at one time." The
authority by its letter dated 15.12.1998 fixed the value of the land at the
rate of Rs. 255/- per sq. ft. on the basis of the then guidelines treating the
rate for the allotted land for the financial year 1994-1995 treating it as
industry. It is beyond anybody's comprehension as to how the value of the land
could be fixed on the basis of the rate as was prevailing in the financial year
1994-95 although decision to allot the land was taken in the year 1998.
allotment having been made for unauthorized suffers from the vice of malice in
law. So far allotment of land in favour of YMCA is concerned, we may notice
that the Revenue Department had also issued a circular dated 31.5.1996 wherein
it was stated:
castes based, Social Institutions from time to time apply for land allotment at
concessional rate to the Government. Thus, the State Government after complete
deliberation has taken this decision that the institutions will be allotted
plots for social purposes on the following rebate and ground rent:-
Each society will only be allotted a
maximum of 5000 sq. feet of land at concessional rate." The said circular
also could not have been issued in terms of the 1973 Act. Even otherwise, not
more than 5000 sq. ft. of land could have been allotted thereunder. The
impugned order, thus, ex facie suffers from total non-application of mind on
the part of the authorities of the JDA and the State. The State moreover has
acted beyond its authority.
have noticed hereinbefore that the State itself opined that the land in
question is 'Authority Land'. It, therefore, could not do what is within the domain of
for which allotments were made may be well-meaning, but the allotments being
contrary to the provisions of the Act and the Rules were void and of no effect
as allotment of land is concerned, the purpose for which the same is allotted
would be wholly irrelevant if it contravenes the mandatory provisions of the
statute or the statutory rule.
relied on Oil and Natural Gas Commission v Association of Natural Gas Consuming
Industries of Gujarat and Others [1990 (Supp) SCC 397] wherein dictionary
meaning of 'public utility' has been stated as under:
Utility: A privately owned and operated business whose services are so
essential to the general public as to justify the grant of special franchises
for the use of public property or of the right of eminent domain, in
consideration of which the owners must serve all persons who apply, without
discrimination. It is always a virtual monopoly.", does not answer the
case of the Respondents.
of Mr. Tankha to the effect that having regard to the concept of freedom of
press, the newspaper industry should be considered to be a public utility in
view of the decision of this Court in Oil and Natural Gas Commission (supra)
cannot be accepted. Public utility has a definite connotation. Publication of a
newspaper does not come within the purview of public utility services.
be true that newspaper industry has a great role to play in spreading political
education and giving of ideas as has been held in Bennett Coleman & Co. and
Others v Union of India and Others [(1972) 2 SCC 788] (followed in Indian
Express Newspapers (Bombay Private Ltd. and Others v Union of India and Others,
(1985) 1 SCC 641), but that would not mean that it would be entitled to
allotment of land in contravention of a Town Planning Act.
preference is to be given to any public utility service, a policy decision therefor
was required to be adopted by the J.D.A. if permissible under the statute and
not otherwise. Even the State may not have a role to play in the matter under
the Act General policy decision adopted by the State in absence of a provision
of the statute, cannot ipso facto be held to be applicable to J.D.A.
aspect of the matter has recently been considered in Bangalore Development
Authority and Others v R. Hanumaiah & Others [2005 (8) SCALE 80] wherein it
Shapur Chenai & Ors. [2005 (7) SCALE 386], this Court noticed:
In Commissioner of Police, Bombay vs. Gordhandas
Bhanji [AIR 1952 SC 16], it is stated :
are clear that public orders, publicly made, in exercise of a statutory
authority cannot be construed in the light of explanations subsequently given
by the officer making the order of what he meant, or of what was in his mind;
or what he intended to do. Public orders made by public authorities are meant
to have public effect and are intended to affect the actings and conduct of
those to whom they are addressed and must be construed objectively with
reference to the language used in the order itself." Yet again in Mohinder
Singh Gill (supra), this Court observed :
second equally relevant matter is that when a statutory functionary makes an
order based on certain grounds, its validity must be judged by the reasons so
mentioned and cannot be supplemented by fresh reasons in the shape of affidavit
or otherwise. Otherwise, an order bad in the beginning may, by the time it
comes to court on account of a challenge, get validated by additional grounds
later brought out. We may here draw attention to the observations of Bose, J.
in Gordhandas Bhanji." Referring to Gordhandas Bhanji (supra), it was
further observed :
are not like old wine becoming better as they grow older." [The said
decisions have been followed by Jagdishbhai M. Kamalia and Others [(2004) 2 SCC
65]." Both the State and the JDA have been assigned specific functions
under the statute. The JDA was constituted for a specific purpose. It could not
take action contrary to the scheme framed by it nor take any action which could
defeat such purpose. The State could not have interfered with the day to day
functioning of a statutory authority. Section 72 of the 1973 Act authorizes the
State to exercise superintendence and control over the acts and proceedings of
the officers appointed under Section 3 and the authorities constituted under
the Act but thereby the State cannot usurp the jurisdiction of the Board
itself. The Act does not contemplate any independent function by the State
except as specifically provided therein.
Development Plan was prepared in terms of the 1973 Act and the rules framed thereunder.
Change of user, we have not been shown, is permissible under the Act or the
Rules. In absence of such a provision and/ or without following the statutory
requirements therefor, if any, the State in exercise of its executive power
could not have directed that lands meant for use for commercial purposes may be
used for industrial purposes.
Friends Colony Development Committee v. State of Orissa and Others [(2004) 8 SCC 733], this Court observed:
all developed and developing countries there is emphasis on planned development
of cities which is sought to be achieved by zoning, planning and regulating
building construction activity. Such planning, though highly complex, is a
matter based on scientific research, study and experience leading to rationalisation
of laws by way of legislative enactments and rules and regulations framed thereunder.
Zoning and planning do result in hardship to individual property owners as
their freedom to use their property in the way they like, is subjected to
regulation and control. The private owners are to some extent prevented from
making the most profitable use of their property. But for this reason alone the
controlling regulations cannot be termed as arbitrary or unreasonable. The
private interest stands subordinated to the public good. It can be stated in a
way that power to plan development of city and to regulate the building
activity therein flows from the police power of the State. The exercise of such
governmental power is justified on account of it being reasonably necessary for
the public health, safety, morals or general welfare and ecological
an unnecessary or unreasonable intermeddling with the private ownership of the
property may not be justified." Furthermore, in terms of Section 73 of the
1973 Act, the power of the State Government to issue direction to the officers
appended under Section 3 and the authorities constituted under the Act is
confined only to matters of policy and not any other. Such matters of policy
yet again must be in relation to discharge of duties by the officers of the
authority and not in derogation thereof.
State has no power to issue any general direction. The State has furthermore no
power to interfere with the day to day functioning of the JDA. Any such direction
by the State to the officers must be in discharge of their duties in terms of
the provisions of the Act and not otherwise. The direction of the Chief
Minister being de'hors the provisions of the Act is void and of no effect.
purported policy decision adopted by the State as regards allotment of land to
the newspaper industries or other societies was not a decision taken by the
appropriate Ministry. If a direction was to be issued by the State to the JDA,
it was necessary to be done on proper application of mind by the cabinet, the
concerned Minister or by an authority who is empowered in that behalf in terms
of the Rules of the Executive Business framed under Article 166 of the
Constitution of India. Such a direction could not have been issued at the
instance of the Chief Minister or at the instance of any other officer alone
unless it is shown that they had such authority in terms of the Rules of the
Executive Business of the State. We have not been shown that the Chief Minister
was the appropriate authority to take a decision in this behalf. We have
noticed hereinbefore that the purported policy decision is in respect of the
lands belonging to the State and not those belonging to the J.D.A. The said
policy decision applies to the entire State of Madhya Pradesh. It is not appreciable in relation to such lands which come
within the purview of any Scheme framed under the Act.
issued by the Revenue Department under Revenue Book Circular Four-1. Evidently therefor
not decision has been taken by the State in terms of the provisions of the 1960
Act or the 1973 Act. The concerned Ministry was Ministry of Housing and
Environment. The jurisdiction of the State while exercising the power to issue
direction in this behalf is extremely limited as has been noticed by this Court
in Rakesh Ranjan Verma and Others v. State of Bihar and Others [1992 Supp (2)
SCC 343 at 348], U.P.
Electricity Board v. Ram Autar and Another [(1996) 8 SCC 506], Bangalore
Development Authority (supra), para 55 and State of U.P. v. Neeraj Awasthi
[2005 (10) SCALE 286].
Private Respondents herein complain of discrimination on the ground that
persons similarly situated have been allotted land at a concessional rate but
therefore no factual foundation had been laid. When allotment is illegal,
Article 14 which carries with it a positive concept would have no application.
[See Jalandhar Improvement Trust v. Sampuran Singh (1999) 3 SCC 494, para 13
and State of Bihar and Others v. Kameshwar Prasad
Singh and another, (2000) 9 SCC 94, para 30] In the case of YMCA also,
allotment has been directed to be made by the State. It may be that ultimately
allotment was made by the JDA. But if the State had no role to play in the
matter, even advice given by it would be ultra vires.
as noticed hereinbefore, could not implement its purported policy decision as
regard allotment of land on concessional rates. Such a direction or even a
policy decision in this behalf is ultra vires being contrary to the statutory
rules framed by it. An action by way of policy decision or otherwise at the
hands of a statutory authority must be in consonance with the statutory rules
and no de'hors the same.
difficult to accept the submission of Mr. Chaudari that the orders impugned in
the writ petition were not vitiated as the same was not arbitrary or mala fide.
Malice may either be on fact or in law. Passing of an order for unauthorized
purpose constitutes malice in law.
Punjab State Electricity Board Ltd. v. Zora Singh and Others, (2005) 6 SCC 776
and U.O.I. the 422].
when the State has framed rules and adopted a procedure for disposal of the
land, both the State and the JDA were bound thereby. They could not have taken
any action contrary thereto or inconsistent therewith.
the State and the JDA had evidently been acting under some misconception. The
Board was of the opinion that in relation to nazul land, the State is the final
authority to allot land as the power of sanction lies within its domain. We
have noticed hereinbefore that the State did not have any such power. The
State, even in terms of Rule 3 of 1975 Rules has a limited role to play.
there are certain subsequent events which should be taken note of. Whereas the
impugned order in the civil appeal arising out of SLP (C) No. 12442 of 2003 was
passed on 21.8.2002, the SLP was filed on 7.5.2003. During pendency of the
matter, the JDA had issued a circular on 4.6.2003 to the Private Respondent
herein asking him to deposit a sum of Rs. 26 lakhs. The said amount is said to
have been deposited on 7.6.2003 whereupon a deed of lease has also been
stated that the Municipal Corporation granted permission for construction of
the building on or about 30.7.2004 subject to the conditions mentioned therein.
A notice was issued on 11.7.2003 by this Court. It is stated that the Private
Respondent has sent invoices for machines worth Rs. 2 crores for which a sum of
RS. 10 lakhs have been paid by way of advance.
of Mr. Tankha, in the aforementioned situation, is that the equities between
the parties should be adjusted.
have noticed hereinbefore that on 11.7.2003 notice was issued in the matter.
The counsel for Respondent was present on the said date. An order of status quo
was present on the said date. The Respondent, therefore, had notice about the pendency
o the special leave petition. It might have applied for and granted the
permission for construction of building but we find no reason as to how without
constructing any building, orders for delivery of machines should have been
issued. It is not the case of the Private Respondent that they had started
construction pursuant to or in furtherance of the permission granted in this
behalf by Municipal Corporation of Jabalpur.
Appellant has brought to the notice of the High Court that a malady has been
prevailing in the department of the State of Madhya Pradesh and the JDA. It may be true that the Appellant did not file
any application questioning similar allotments but it is well-settled if an
illegality is brought to the notice of the court, it can in certain situations
exercise its power of judicial review suo motu (See Sham Lal (dead) by Lrs. vs.
Atme Nand Jain Sabha (Regd.), Dal Bazar (1987) 1 SCC 222 , Chairman & MD,
SCC 546). It is also well-settled that the equality clause contained in Article
14 of the Constitution of India cannot be invoked for perpetrating an
the reasons aforementioned, the impugned judgments of the High Court cannot be
sustained, but, having regard to the facts and circumstances of this case, we
are of the opinion that the interest of justice would be subserved if the
question as regards allotment of land is left to the Jabalpur Development
Authority. The Authority may consider the matter afresh for grant of such
allotment in favour of the Private Respondents herein treating the applications
filed by them either before it or before the State Government as fresh
applications. Such applications must be processed strictly in terms of the
provisions of the 1973 Act and the Rules framed thereunder as also keeping in
view the Master Plan. Such a decision should be taken by the Competent
Authority of the JDA at an early date preferably within a period of two months
from the date of receipt of the copy of this order. The JDA shall return the
amount deposited by the Private Respondents, if any, within four weeks from
appeals are allowed to the aforementioned extent but in the facts and
circumstances of this case there shall be no order as to costs.