IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)
Writ Petition (PIL) No. 3252/2011
Decided On: 02.11.2012
Kailash Narayan Sharma
Vs.
State of M.P. and Ors.
Hon'ble Judges/Coram: S.K. Gangele and G.D. Saxena, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Mr. S.K. Sharma, Advocate
For Respondents/Defendant: Mr. M.P.S. Raghuvanshi, Addl. Advocate General for the Respondent Nos. 1 and 2/State, Mr. Mahesh Goyal, Advocate for the Respondent No. 3 and Mr. Pawan Dwivedi, Advocate for the Respondent No. 4
ORDER
S.K. Gangele, J.
1. The petitioner has filed this Public Interest Litigation in regard to allotment of a land Survey No. 184 situate at Village Jourakhurd in favour of respondent No. 3. The petitioner has pleaded that he is a public spirited person and he has locus standi to file the present petition. A land of survey No. 184 situate at Village Jourakhurd had been registered in the revenue record as 'pond' and it has been used by the villagers for quite a long time. Respondent No. 3 filed its return and pleaded that respondent No. 3 submitted an application to the Collector, Morena in regard to allotment of land for district office of BJP at Morena of 8,000 sq. ft. Nazul Officer, Morena, directed the Tehsildar to change the use of the land vide letter dated 7-2-2008 on the ground that the land had been registered in revenue record as 'pond' for the purpose of drinking water. The Tehsildar and Sub Divisional Officer recommended for change the nature of use of the land and consequently, the Collector declared the land as 'Nazul Abadi' and, thereafter, the land was allotted to the respondent No. 3. It is further mentioned in the return that a proclamation Ishtahar was published on 23-4-2004 and the objections were invited upto 24-6-2004. On the aforesaid date, no objection was received. Therefore, the Commissioner on 20-12-2006 forwarded the matter of allotment of the land in favour of respondent No. 3. The value of the land was assessed as ` 40,92,000/-. It is further pleaded that the land was allotted in favour of respondent No. 3, vide order dated 20-8-2007 in pursuance to the circular issued by the Revenue Department dated 2-8-2000, which prescribes that a land could be allotted to a recognised political party for the purpose of construction of office. It is further mentioned that the political party can use 25% of the constructed area for business or semi-business purpose. The area of the land, which could be allotted to a political party is of 40000 sq. ft. or 40000-10000 sq. ft.
2. In the present case, it is clear that no advertisement was issued before allotment of land in favour of respondent No. 3. Apart from this, the nature of land was also changed from 'pond' to 'abadi'.
3. Hon'ble Supreme Court in the case of Hinch Lal Tiwari Vs. Kamala Devi, reported in (2001) 6 SCC 496, has held as under in regard to change of nature of the land from 'pond' to 'abadi' and the allotment of the said land by the Revenue Authority:--
The material resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature's bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment, which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution. The Government, including the Revenue Authorities, i.e., respondent Nos. 11 to 13, having noticed that a pond is falling in disuse, should have bestowed their attention on developing the same which would, on one hand, have prevented ecological disaster and on the other provided better environment for the benefit of the public at large. Such vigil is the best protection against knavish attempts to seek allotment of non-abadi sites.
4. Hon'ble Supreme Court further in the case of Jagpal Singh Vs. State of Punjab, reported in (2011) SCC 1123, has held as under in regard to allotment of land of 'pond' for any other purpose:--
16. The present is a case of land recorded as a village pond. This Court in Hinch Lal Tiwari Vs. Kamala Devi, AIR 2001 SC 3215 [followed by the Madras High Court in L. Krishnan Vs. State of Tamil Nadu, 2005 (4) CTC 1 (Madras) : AIR 2005 Mad 311], held that land recorded as a pond must not be allowed to be allotted to anybody for construction of a house or any allied purpose. The Court ordered the respondents to vacate the land they had illegally occupied, after taking away the material of the house. We pass similar order in this case.
17. In this connection, we wish to say that our ancestors were not fools. They knew that in certain years, there may be droughts or water shortages for some other reason, and water is required for cattle to drink and bath in etc. Hence, they built a pond attached to every village, a tank attached to every temple, etc. These were their traditional rain water harvesting methods, which served them for thousands of years.
18. Over the last few decades, however, most of these ponds in our country have been filled with earth and build upon by greedy people, thus, destroying their original character. This has contributed to the water shortages in the country.
19. Also, many ponds are auctioned off at throw away prices to businessmen for fisheries in collusion with authorities/Gram Panchayat officials, and even this money collected from these so called auctions are not used for the common benefit of the villagers but misappropriated by certain individuals. The time has come when these mal-practices must stop.
20. In Uttar Pradesh, the U.P. Consolidation of Holdings Act, 1954 was widely misused to usurp Gram Sabha lands either with connivance of the Consolidation Authorities, or by forging orders purported to have been passed by Consolidation Officers in the long past so that they may not be compared with the original revenue record showing the land as Gram Sabha land, as these revenue records had been weeded out. Similar may have been the practice in other States. The times has now come to review all these orders by which the common village land has been grabbed by such fraudulent practices.
From the aforesaid judgments of the Hon'ble Supreme Court, it is clear that the land of 'pond' could not be allotted or changed for other purpose.
5. Hon'ble Supreme Court in the case of Akhil Bhartiya Upbhokta Congress Vs. State of M.P. and others, reported in (2011) 3 Sup 89, has held as under in regard to allotment of land, which is the natural resource, without advertisement:--
31. What needs to be emphasised is that the State and/or its agencies/instrumentalities cannot give largesse to any person according to the sweet will and whims of the political entities and/or officers of the State. Every action/decision of the State and/or its agencies/instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well defined policy, which shall be made known to the public by publication in the Official Gazette and other recognised modes of publicity and such policy must be implemented/executed by adopting a non-discriminatory or non-arbitrary method irrespective of the class or category of persons proposed to be benefited by the policy. The distribution of largesse like allotment of land, grant of quota, permit of licence etc. by the State and its agencies/instrumentalities should always be done in a fair and equitable manner and the element of favoritism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular functionary or officer of the State.
32. We may add that there cannot be any policy, much less, a rational policy of allotting land on the basis of applications made by individuals, bodies, organisations or institutions de hors an invitation or advertisement by the State or its agency/instrumentality. By entering applications made by individuals, organisations or institutions for allotment of land or for grant of any other type of largesse the State cannot exclude other eligible persons from lodging competing claim. Any allotment of land or grant of other form of largesse by the State or its agencies/instrumentalities by treating the exercise as a private venture is liable to be treated as arbitrary, discriminatory and an act of favoritism and nepotism violating the soul of the equality clause embodied in Article 14 of the Constitution.
33. This, however, does not mean that the State can never allot land to the institutions/organisations engaged in educational, cultural, social or philanthropic activities or are rendering service to the Society except by way of auction. Nevertheless, it is necessary to observe that once a piece of land is earmarked or identified for allotment to institutions/organisations engaged in any such activity, the actual exercise of allotment must be done in a manner consistent with the doctrine of equality. The Competent Authority should, as a matter of course, issue an advertisement incorporating therein the conditions of eligibility so as to enable all similar situated eligible persons, institutions/organisations to participate in the process of allotment, whether by way of auction or otherwise. In a given case the Government may allot land at a fixed price but in that case also allotment must be preceded by a wholesome exercise consistent with Article 14 of the Constitution.
34. The allotment of land by the State or its agencies/instrumentalities to a body/organisation/institution, which carry the tag of caste, community or religion is not only contrary to the idea of Secular Democratic Republic, but is also fraught with grave danger of dividing the society on caste or communal lines. The allotment of land to such bodies/organisations/institutions on political considerations or by way of favoritism or nepotism or with a view to nurture the vote bank for future is constitutionally impermissible.
6. The Constitution Bench of the Hon'ble Supreme Court in In Re.: Special Reference No. 1/2012 made under Article 143(1) of the Constitution of India, has held as under in regard to mode of distribution of natural resources:--
146. To summarise in the context of the present Reference, it needs to be emphasised that this Court cannot conduct a comparative study of the various methods of distribution of natural resources and suggest the most efficacious mode, if there is one universal efficacious method in the first place. It respects the mandate and wisdom of the executive for such matters. The methodology pertaining to disposal of natural resources is clearly an economic policy. It entails intricate economic choices and the Court lacks the necessary expertise to take them. As has been repeatedly said, it cannot, and shall not, be the endeavour of this Court to evaluate the efficacy of auction vis-รก-vis other methods of disposal of natural resources. The Court cannot mandate one method to be followed in all facts and circumstances. Therefore, auction, an economic choice of disposal of natural resources, is not a constitutional mandate. We may, however, hasten to add that the Court can test the legality and constitutionality of these methods. When questioned, the Courts are entitled to analyse the legal validity of different means of distribution and give a constitutional answer as to which methods are ultra vires and intra vires the provisions of the Constitution. Nevertheless, it cannot and will not compare which policy is fairer than the other, but, if a policy or law is patently unfair to the extent that it falls foul of the fairness requirement of Article 14 of the Constitution. the Court would not hesitate in striking it down.
147. Finally, market price, in economics, is an index of the value that a market prescribes to a good. However, this valuation is a function of several dynamic variables; it is a science and not a law. Auction is just one of the several price discovery mechanisms. Since, multiple variables are involved in such valuations, auction or any other form of competitive bidding, cannot constitute even an economic mandate, much less a constitutional mandate.
148. In our opinion, auction despite being a more preferable method of alienation/allotment of natural resources, cannot be held to be a constitutional requirement or limitation for alienation of all natural resources and, therefore, every method other than auction cannot be struck down as ultra vires the constitutional mandate.
149. Regard being had to the aforesaid precepts, we have opined that auction as a mode cannot be conferred the status of a constitutional principle. Alienation of natural resources is a policy decision, and the means adopted for the same are thus, executive prerogatives. However, when such a policy decision is not backed by a social or welfare purpose, and precious and scarce natural resources are alienated for commercial pursuits of profit maximizing private entrepreneurs, adoption of means other than those that are competitive and maximise revenue may be arbitrary and face the wrath of Article 14 of the Constitution. Hence, rather than prescribing or proscribing a method, we believe, a judicial scrutiny of methods of disposal of natural resources should depend on the facts and circumstances of each case, in consonance with the principles, which we have ruled out above. Failing which, the Court, in exercise of power of judicial review, shall term the executive action as arbitrary, unfair, unreasonable and capricious due to its antimony with Article 14 of the Constitution.
7. In the facts of the present case, the respondents have changed the use of the land. The land was 'pond' land and in changing the use of the land, no cogent reasons have been assigned by the Collector. Hon'ble Supreme Court has clearly held that the land of 'pond' could not be diverted for other purpose. Further, no advertisement was issued in regard to allotment of land. Apart from this, the policy adopted by the respondents in regard to allotment of land to a political party is also not in consonance with the mandate of the Constitution Bench. The land can be given in accordance with the policy to a political party and even 20% of the constructed area could be used for commercial purpose. In our opinion, the policy of the Government is not in consonance with the mandate of the Constitution Bench judgment of the Hon'ble Supreme Court quoted above. Hence, the impugned order of allotment of land in favour of respondent No. 3 is contrary to law.
8. In regard to locus standi of the petitioner, looking to the facts of the case and the fact that the land, which was marked as 'pond' land, has been allotted to a political party, in our opinion, the petitioner has locus standi to file this petition as Public Interest Litigation in view of the judgment of the Hon'ble Supreme Court in State of Uttaranchal Vs. Balwant Singh Chaufal and others, reported in (2010) 3 SCC 402. Consequently, the petition of the petitioner is allowed. Impugned order dated 20-8-2007 in regard to allotment of land in favour of respondent No. 3 (Annexure R-9) filed by the respondent Nos. 1 and 2 alongwith the return is hereby quashed. The amount deposited by the respondent No. 3 shall be returned back to the respondent No. 3. Looking to the facts of the case, the respondent Nos. 1 and 2 shall pay costs of ` 5,000/- to the petitioner.
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