9911796707
TMI Blog2015 (8) TMI 775X X X X Extracts X X X X X X X X Extracts X X X X ..... of Gujarat) Tenancy and Agricultural Lands (Vidarbha Region and Kutch Areas) Act, 1958 (Tenancy Act, 1958 for short). It was submitted that under Section 89A of this Act, agricultural land can be permitted to be sold by an agriculturist to another person for industrial purpose provided the proposed user is bona- fide. In the event, the land is not so utilised by such a person for such purpose, within the period as stipulated under the act, the Collector of the concerned district has to make an enquiry under sub-Section 5 thereof, give an opportunity to the purchaser with a view to ascertain the factual situation, and thereafter pass an order that the land shall vest in the State Government on payment of an appropriate compensation to the purchaser which the Collector may determine. It was contended that there was no provision for any further transfer of agricultural land from one industrial purchaser to any third party, once again, for industrial purpose when the first purchaser of agricultural land had defaulted in setting up the industry. Apart from being in breach of the law, the transaction was stated to be against public interest, and a mala-fide one resulting into a serious l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31.1.2003, and the Collector of Bhuj is stated to have given the requisite certificate of purchase of the lands under sub-section (3) (c) (i) of the said section. It appears that thereafter no steps were taken by respondent No.4 to put up any industry on the said land. 6. Five years later, the respondent No.4 is stated to have applied on 6.12.2008 to the Deputy Collector at Bhuj for permission to sell these lands. The Collector of Bhuj sought the guidance from the Revenue Department, and in view of the direction of the Revenue Department, the Deputy Collector granted the permission on 15.1.2010, to sell the lands to respondent No. 5 treating it as a special case, and not to be treated as a precedent. Thereafter, the respondent No.4 conveyed the concerned lands to respondent No.5 by sale deed dated 19.1.2010. Respondent No.5 also obtained permission from the Industries Commissioner on 8.3.2010 for putting up the industry. Subsequently, the Collector issued the certificate as required under Section 89A (3) (c) (i) of the Tenancy Act, 1958, on 21.5.2010, that respondent No.5 had purchased the land for a bona-fide purpose. The permission for a non-agricultural user was given to the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heat, Cotton, groundnuts etc. If the refinery work starts in this area, it will affect the agricultural work badly. There was also a fear that the blackish and toxic air of the factory will spoil the plants. 9. All this led the appellants to file the earlier mentioned writ petition, for the reliefs as prayed. The petition enclosed the above referred news reports, as also the information obtained through enquiry under the Right to Information Act, 2005 by one Shri Shashikant Mohanlal Thakker of Madhapur Village of Taluka Bhuj. This information contained the documents incorporating the file notings of the revenue department and the orders granting permission. The aforesaid writ petition was filed on 28.2.2012. An affidavit in reply to the writ petition was filed by above referred Nitin Patel on behalf of respondent No.5, and the appellants filed a rejoinder. Respondent No.5 filed a sur-rejoinder thereto. The respondent No.1 State of Gujarat filed an affidavit in reply on 16.8.2012, and the petitioner filed a rejoinder to the Government's affidavit on 10.11.2012. After the writ petition was filed on 28.2.2012 an order of status-quo was granted on 1.3.2012, and it continued till the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o any sale made under sub-section (I). 89A. Sale of land for bonafide industrial purpose permitted in certain cases:- (1) Nothing in section 89 shall prohibit the sale or the agreement for the sale of land for which no permission is required under sub-section (1) of section 65B of the Bombay Land Revenue Code, 1879 (Bom. V of 1879) in favour of any person for use of such land by such person for a bonafides industrial purpose: Provided that- a) the land is not situated within the urban agglomeration as defined in clause (n) of section 2 of the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976), b) where the area of the land proposed to be sold exceeds ten hectares, the person to whom the land is proposed to be sold in pursuance of this sub-section shall obtain previous permission of the Industries Commissioner, Gujarat State, or such other officer, as the State Government may, by an order in writing, authorise in this behalf. c) the area of the land proposed to be sold shall not exceed four times the area on which construction for a bonafide industria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Collector under sub-clause (ii) of clause (c) may file an appeal to the State Government or such officer, as it may, by an order in writing, authorise in this behalf. (ii) The State Government or the authorised officer shall, after giving the appellant an opportunity of being heard, pass such order on the appeal as it or he deems fit. 4) The purchaser to whom a certificate is issued under sub- clause (i) of clause (c) of sub-section (3), shall commence industrial activity on such land within three years from the date of such certificate and commence production of goods or providing of services within five years from such date: Provided that the period of three years or, as the case may be, five years may, on an application made by the purchaser in that behalf, be extended from time to time, by the State Government or such officer, as it may, by an order in writing authorise in this behalf, in such circumstances as may be prescribed. (5) Where the Collector, after making such inquiry as he deems fit and giving the purchaser an opportunity of being heard, comes to a conclusion that the purchaser has failed to commence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a public authority which holds the property for the public, and which has the authority to grant the largesse, has to act as a trustee of the people, and therefore to act fairly and reasonably. The holders of pubic office are ultimately accountable to the public in whom the sovereignty vests. The action of the Government is arbitrary, and therefore violative of Article 14 of the Constitution of India. 12. Respondent No.5 was the first to file a reply to this petition in the High Court which was affirmed by Mr. Nitin Patel on 11.7.2009. In this reply he principally submitted that it was not correct to say that the land was being given away at a throwaway price, causing great loss to the public exchequer to the tune of Rs. 250 crores, as alleged. The State Authorities and the Revenue Minister have not acted in violation of any mandatory provisions of law. The affidavit further narrated the various events in the matter leading to the sale deed dated 19.1.2010 by Indigold in favour of Alumina, and the permission of the Industries Commissioner dated 8.3.2010. It was also pointed out that permission had been granted by the Collector, Bhuj on 5.1.2011. Thereafter, it was contended th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government's own interest through its public sector undertaking had been involved, and therefore there has been a substantial compliance of the spirit flowing from the provisions of Section 89A(5). (iii) The price of the land in question was around Rs. 4.35 crores as per the Jantri (i.e. official list of land price) at the relevant time, and it had come down to Rs. 2.08 crores, as per the revised Jantri rated of 2011. Thus, apart from time being consumed in the process, perhaps there would have been a loss to the public exchequer. Thereafter, it was stated in paragraph 4 of the reply as follows:- "I further respectfully say that the action of the State Government was bonafide and taking into consideration all the aspects of the matter, viz. (i) the land is being used for the industrial purpose, (ii) a dire need for industrialization in the Kutch District; (iii) MoU arrived at during the Vibrant Summit, 2009, whereby, a ready and interested party was available to start the industry immediately on the land in question; and (iv) GMDC possessing 26% of the share in such interested party, i.e. M/s Alumina Refinery Pvt. Ltd." It is relevant to note that no reply wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 85 crores as on 31.3.2012 on the project, and moved in some machinery on the site. 18. The appellant No.1 has filed his rejoinder to both these counters. He has stated that he has not suppressed that he is a political activist, which is what he has already stated in the petition. He has maintained his earlier submissions in the writ petition, and denied the allegations made in the two counter affidavits. 19. As stated earlier, GMDC has applied for joining as respondent No.6. In its application it has stated that Alumina was selected through transparent evaluation. Then, it was short-listed for setting up the project in Kutch at the Vibrant Gujarat Summit in 2009. It also defended the Government's decision on the ground that it is going to have 26% equity in respondent No.5. Points for consideration before this Court: 20. It, therefore, becomes necessary for this Court to examine whether the decision taken by the Government to permit the transfer of the agricultural land from respondent No. 4 to respondent No. 5, was legal and justified. For that purpose one may have to consider the developments in this matter chronologically as disclosed from the above pleadings of the parties, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tage in form of booking any profit by sale of ownership land to M/s Alumina Refinery (P) Ltd. We, hereby request your office to kindly grant the permission to sale all the above land and allow us to execute the Sale Deed for registration with the competent authority....." (emphasis supplied) 22. The earlier letter dated 6.12.2008 mentioned in this letter of 16.6.2009, however, nowhere mentions that respondent No.4 had any financial constraints because of which it could not set up the industry and thefore it wanted to sell the particular land. This letter is seen in the file of the Collector. This letter reads as follows:- "INDIGOLD REFINERIES LIMITED 6th December 2008 To, Collector of Kutch, Bhuj, State of Gujarat Sub:- Permission for the sale of agricultural land admeasuring 39 acres 25 gunthas at Moti Reladi Kukama, Taluka Bhuj, District Kutch, State of Gujarat. Dear Sir, Reference to above, we have to respectfully inform your good self that we had purchased land as per details here below for setting up of Industrial project:- Sr.no. Name of Village Survey No.&nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16 Total 39 acres 25 gunthas The above piece of land was purchased with the permission granted by Deputy Collector, Bhuj, Kutch, wide letter no. LND/VC/1169/03 dated 2nd May 2003. We further respectfully inform yourself that we are no more interested to put any industrial project in the said land and therefore we are disposing off entire piece of land as per aforesaid details to our prospective client. We, therefore, request your good self to kindly give us your permission for sale, so as to enable us to register the sale deed with the concern competent authority. We hope you will extend your maximum corporation and assistances in this regard and oblige. Thanking you Yours faithfully Sd/- Indigold Refineries Ltd. Hanumantrao V. Kharat" (emphasis supplied) 23. As stated earlier, the File notings of the Revenue Department, were obtained through an RTI inquiry, and were placed on record alongwith the Writ Petition. The learned counsel for the State of Gujarat was good enough to produce the original files for our perusal. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... graph 4, that under the relevant law the purchaser of the land should commence the industrial activity within a period of 3 years from date of the certificate of purchase, and within 5 years start the manufacture of goods and provide the services. Where the purchaser fails to commence the industrial activity, the Collector has to initiate an enquiry as to whether the purchaser has failed to commence industrial activity or production, as mentioned in clause (b) of sub-section 4. Thereafter, if on giving the purchaser an opportunity to be heard, the Collector comes to a conclusion that the purchaser has failed to do so, he has to determine the payment of compensation, and pass an order that the land shall vest in the State Government. Thereafter the note records:- " .....Taking into consideration the above provisions, whatever action required to be taken, is to be taken by Collector, Kutch, means there is no question at all of the authority for a period of more than five years. Further vide letter dated 6.7.2009, Collector was informed to submit factual report. Instead of the same, proposal is submitted by him. Vide order dated 1.5.2003 Deputy Collector has grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "Land is of private ownership. As a special case, permission be granted for sale". 28. Thereafter, it is seen from this file that in view of this direction by the Minister, the matter was further discussed. A note was then made by the Principal Secretary, Revenue Department on 21.9.2009 - "Discussed. We may resubmit to adopt a procedure for such cases". The Principal Secretary, Land Revenue made a detailed note thereafter on 14.10.2009 referring to the amendment brought in by Gujarat Act No.7 of 1997 incorporating Section 63AA in the Bombay Tenancy and Agricultural Lands Act, 1948, and the developments in the present matter up to the noting made by the Minister, that the land may be permitted to be sold as a special case. Thereafter, he sought an opinion as to whether or not an action similar to a provision under the Land Acquisition Act on the occasion of sale of land providing for taking of 50% amount of unearned income by the State Government, be taken in the present case. The Chief Secretary made a note thereon as follows:- "It would be proper to give land to the new party provided industry department recommends as per the laid down rules. As indicated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e action of issuing the certificate can be taken only after the submission of a project report and technical recommendation letter of Industries Commissioner by respondent No.5. The above referred order dated 15.1.2010 of the Deputy Collector granting permission to sale the land reads as follows:- No. Jaman Vashi/218/09 Office of Deputy Collector Bhuj, Date-15/01/2010 To Shri Hanumantrav V. Kharat Indi Gold Refineries Limited 201-212, EMCS House 289 SBSL, Fort Mumbai-400 001 Subject:- Regarding getting the approval for sale of the agricultural land of village Kukma and Moti Reldi, Taluka Bhuj purchased for industrial purpose, under Section-89-A of the Tenancy Act. Read:- Letter No. Ganat/2809/2126/Z dated 18/12/2009 of the Revenue Department of the Government, Gandhinagar. Sir, With reference to the above subject it is to be informed that vide this office certificate No. Land/Vasi/1169/03 dated 01/05/2003 you have been granted permission under Section-89-A of the Tenancy Act for purchasing agricultural land for industrial purpose as under:- Sr.No Name of Village Survey No. Acre/Guntha 1 Kukma 94/1 4.14 2 Kukma 94/2 2.16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices has to start within five years. If that is not done, the Collector has to take over the land after holding an appropriate enquiry under sub-section (5) of 89A, and the land has to vest in the Government after paying the compensation to the purchaser which has to be determined having regard to the price paid by the purchaser. In the instant case, it is very clear that the respondent No. 4 had expressed their inability to develop the industry way back on 6.12.2008. The Collector was, therefore, expected to hold an enquiry and pass appropriate order. This was a power coupled with a duty. A judgment of this Court in Indian Council for Enviro-Legal Action Vs. Union of India & Ors. reported in 1996 (5) SCC 281, was relied upon to submit that a law is usually enacted because the legislature feels that it is so necessary. When a law is enacted containing some provisions which prohibit certain types of activities, it is of utmost importance that such legal provision are effectively enforced. In Section 89A there is no provision for a further transfer by such a party which has not developed the industry, and therefore, the Collector ought to have acted as required by Section 89A (5). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In para 20 of Shrisht Dhawan (supra) this Court has observed:- " If a statute has been passed for some one particular purpose, a court of law will not countenance any attempt which may be made to extend the operation of the Act to something else which is quite foreign to its object and beyond its scope.' Present day concept of fraud on statute has veered round abuse of power or mala fide exercise of power. It may arise due to overstepping the limits of power or defeating the provision of statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant considerations. The colour of fraud in public law or administrative law, as it is developing, is assuming different shades......" 35. The learned senior counsel for the appellants Mr. Huzefa Ahmadi submitted that the appellants' writ petition should not have been dismissed only on the ground of delay, in as much as the environmental clearance to the project was granted on 19.2.2012 and the writ petition was filed in March 2012. He submitted that similarly the appellant cannot be criticised for suppression of any information about the investment made by respondent No. 5, since the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "126. Control- In all matters connected with this Act, the State Government shall have the same authority and control over the [Mamlatdar] and the Collectors acting under this Act as [it has and exercises] over them in the general and revenue administration." 37. The learned senior counsel Mr. Andhyarujina appearing for the State, submitted that the Collector had the authority to grant such a permission to sell under Rule 45 (b) of the Bombay Tenancy and Agricultural Lands Rules, 1959. This rule reads as follows:- "45.Circumstances in which permission for sale, etc. of land under section 89 may be granted - The Collector or any other officer authorised under the proviso to sub-section (1) of section 89 may grant permission for sale, gift exchange, lease or mortgage of any land in favour of a person who is not an agriculturists or who being an agriculturists, cultivates personally land not less than three family holdings whether as tenure holder or tenant or partly as tenure holder and partly as tenant in any of the following circumstances:- a) such a person bona fide requires the land for a non- agricultural purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finery Pvt. Ltd. and GMDC which is basically like a declaration of intent to set up the plant, and it contains the assurance of support from the Government of Gujarat. The second MOU between them is dated 9.9.2009, and it records that Government of Gujarat has agreed to support this refinery, and that the GMDC had agreed to supply, on priority basis, the plant-grade bauxite to this plant. It is this document which states that GMDC will invest in the equity of Alumina Refinery to an extent not exceeding 26%. It contains the promise to supply bauxite. Mr. Krishnan Venugopal, fairly accepted that this document cannot be construed as a contract, and that it can at best be utilised as a defence to insist on a promissory estoppel. The third MOU is dated 30.11.2011 which is an agreement between Earth Refinery Pvt. Ltd. which the holding company of Respondent No. 5 and GMDC. In clause 2.1 of this agreement they have agreed to set up a joint venture Company by name Alumina Refinery Ltd. Clause 6.2 of this agreement states that equity participation of GMDC in this company shall be 26%. The obligation of GMDC has been spelt out under clause 4.2 to supply bauxite. 41. The principal submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the purpose of encouraging setting up of industries within the State, we do not think the State is bound to advertise and tell the people that it wants a particular industry to be set up within the State and invite those interested to come up with proposals for the purpose. The State may choose to do so, if it thinks fit and in a given situation, it may even turn out to be advantageous for the State to do so, but if any private party comes before the State and offers to set up an industry, the State would not be committing breach of any constitutional or legal obligation if it negotiates with such party and agrees to provide resources and other facilities for the purpose of setting up the industry....." He also referred to paragraph 146 of the judgment (Per Khehar J), therein, where the learned Judge has observed that the court cannot mandate one method to be followed in all facts and circumstances, and auction and economic choice of disposal of natural resources is not a constitutional mandate. It was therefore submitted that, it was not necessary that the Collector ought to have opted for auction of the concerned parcel of land. 43. The learned senior counsel Mr. Krishnan Ven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apply to a sale etc. in favour of an agricultural labourer or an artisan (c) Sub-section (3) similarly provides that the above restriction will not apply to a mortgage in favour of a cooperative society, to secure a loan therefrom. (d) Sub-section (4) lays down that the restriction under Section 90 with respect to the reasonable price for the land to be sold will not apply to the sale under Section 89(1). 46. Section 89A creates an exception to Section 89 for sale of land for bona-fide industrial purposes in certain cases. This section is split into five sub-sections. Sub-section (1) of Section 89A deals with those lands for which no permission is required under sub-section (1) of Section 65B of the Bombay Land Revenue Code, 1879, i.e. lands such as those in industrial zone etc. It lays down that nothing in Section 89 will prohibit the sale or the agreement of sale of such zonal land in favour of any person for use of such land by such person for a bona-fide industrial purpose. Section 89A, creates an exception to Section 89 by allowing a sale of land for bonafide industrial purpose in certain cases as contemplated under the said section. These requirements are laid down in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30 days of such purchase, and obtain a certificate that the land is purchased for a bonafide industrial purpose. He has to see to it that the industrial activity starts in three years from the date of such certificate, and the production of goods and services also starts within five years thereof, which period can be extended by the State Government, in an appropriate case. In the event the purchaser fails to commence such industrial activity, the Collector has to make an enquiry, and thereafter pass an appropriate order of resumption of the land on determining the compensation. Thus, the entire authority in this behalf is with the Collector and none other. Have the provisions of Sections 89 and 89A been complied in the present case:- 48. Now, we may examine the developments in the present matter on the backdrop of these statutory provisions. It is relevant to note that in their first letter dated 6.12.2008, the respondent No.4 has not referred to any financial constraint. The letter merely states that respondent No.4 wanted to dispose off the entire piece of land since they were no more interested in putting up any industrial project in the said land. As can be seen from Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. It is very clear that Collector has done nothing of the kind. In any case he should have taken the necessary steps in accordance with law at least after receiving the letter dated 16.6.2009. Again he did not take any such steps. 50. It has been pointed out by the respondents that the representative of respondent No.5 participated in the Vibrant Gujarat Global Investors Summit on 31.1.2009, and signed an MOU with respondent No.6 for setting up a specialty alumina plant in Kutch. The MOU stated that the Government of Gujarat was assuring all necessary permissions to respondent No.5. The respondent No.5 will be investing an amount of Rs. 30 crores in the proposed plant, and it will provide employment to 80 persons. Thereafter, the above referred letter dated 12.6.2009 was addressed by the respondent No.5 to the Deputy Collector Bhuj. The letter sought permission to purchase land belonging to Indigold. It referred to the letter of respondent No.4 dated 6.12.2008. It stated that the respondent No.5 would like to purchase the land for a bonafide industrial purpose, for setting up their upcoming project, Alumina Refinery Limited, on the land admeasuring 39 acres and 25 gunthas, situat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sections 89 and 89A contemplate a certain procedure and certain requirements, what has been done in the present matter is quite different. We may refer to Lord Bingham's work titled 'Rule of Law' where in the Chapter on exercise of power, he observes that: 'Ministers and public officers at all level must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably' . He quotes from R v. Tower Hamlets London Borough Council [1988] AC 858, which states: 'Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely, that is to say, it can validly be used only in the right and proper way which the parliament, when conferring it, is presumed to have intended.' 53. It is well settled that where the statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. This proposition of law laid down in Taylor Vs. Taylor (1875) 1 Ch D 426,431 was first adopted by the Judicial Committee in Nazir Ahmed Vs. King Emperor reported in AIR 1936 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for over five years to set up the industry. They were not expected to purchase the land, and thereafter sell it for profiteering. The Jantri price is an official price. In actual auction the State could have realised a greater amount. In permitting the sale inter-se parties, the State exchequer has positively suffered. (ii) On the other hand, in the event, the Collector was to form an opinion after receiving the bids or otherwise that it was not worth disposing of the land in that particular way, he could have divested Respondent No. 4 of the land by paying compensation, and re-allotted the same to the Respondent No 5 at an appropriate consideration. The statute required him to act in a particular manner and the land had to be dealt in that particular manner only, and in no other manner, as can be seen from the legal position, accepted in various judgments based on the proposition in Taylor vs. Taylor. 55. Thus inspite of the Secretaries repeating their advice, the Minister of Revenue Smt. Anandiben Patel has insisted on treating this case as a special case for which she has recorded no justifiable reasons whatsoever, and orders were issued accordingly. Under Section 89A(3), the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." This proposition has been quoted with approval in paragraph 8 by a Constitution Bench in Mohinder Singh Gill vs. Chief Election Commissioner reported in 1978 (1) SCC 405 wherein Krishna Iyer, J. has stated as follows:- "8. The 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." In this context it must be noted that the Revenue Minister's direction merely states that it is a private land, and the Governments letter dated 18.12.2009 speaks of the financial incapability of Inidgold. Neither the letter dated 18.12.2009 from the Government to the Collector, nor the order passed by the Deputy Collector on 15.1.2010 mention anything about: 1. the mineral policy of the Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory scheme to suggest that a second sale, inter se parties, after the failure of a purchaser to set up an industry is permissible. In such an event, the statute requires an enquiry to be conducted by the collector. If he is satisfied that there is a failure to set up the industry, the compensation to be paid to the purchaser is determined. After this stage the land vests in the Government. It is thus clear that the condition No 4 in the permission obtained by Respondent No. 4 is bad in law, not having its basis in any statutory provision. Even assuming that the Collector had that power to lay down such a condition, the authority to permit the sale as per the said condition had to be exercised by him in the manner contemplated under Section 89 A (5) viz. after holding the enquiry as prescribed. Here the enquiry itself was dispensed with. Rule 45(b) of the Bombay Tenancy and Agricultural Lands Rules, 1959 also cannot be pressed into service for the reason that, neither under Section 89 nor under Section 89A, a sale inter- se parties is contemplated or permitted. 60. Now, what is to be noted is that wherever an agriculturist is in possession of a land, either as an owner or as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 'Surrender Abdications and Dictation'. 62. The respondent No.5 had the courage to state that the notings of the Secretaries were inconsequential. As a beneficiary of the largesse of the Government, respondent No.5 could say that, but it is not possible for us to accept the same. In Trilochan Dev Sharma vs. State of Punjab reported in AIR 2001 SC 2524 what is observed by this Court is relevant for our purpose "In the system of Indian Democratic Governance, as contemplated by the constitution, senior officials occupying key positions such as Secretaries are not supposed to mortgage their own discretion, volition and decision making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politications, for carrying out commands having no sanctity in law." A higher civil servant normally has had a varied experience and the ministers ought not to treat his opinion with scant respect. If Ministers want to take a different view, there must be compelling reasons, and the same must be reflected on the record. In the present case, the Secretaries had given advice in accordance with the statute and yet the Minister has given a direction to act contrar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourse which is permissible under the law. It is not merely the end but the means which are of equal importance, particularly if they are enshrined in the legislative scheme. The minimum that was required was an enquiry at the level of the Collector who is the statutory authority. Dictating him to act in a particular manner on the assumption by the Minister that it is in the interest of the industrial development would lead to a breach of the mandate of the statute framed by the legislature. The Ministers are not expected to act in this manner and therefore, this particular route through the corridors of the Ministry, contrary to the statute, cannot be approved. The present case is clearly one of dereliction of his duties by the Collector and dictation by the Minister, showing nothing but arrogance of power. 65. The High Court has erred in overlooking the legal position. It was expected to look into all the earlier mentioned aspects. The impugned judgment does not reflect on the issues raised in the petition. It could not be said that the petition was delayed and merely because investment had been made by the respondent No.5, the court would decline to look into the important issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the same. Hence, the following decision:- 68. Having noted the legal position and the factual scenario, the impugned judgment and order passed by the High Court will have to be set aside. The prayers in the PIL will have to be entertained to hold that the direction of the State Government dated 18.12.2009 and the consequent order issued by the Collector of Kutch on 15.1.2010 is arbitrary, and bad in law for being in violation of the scheme and the provisions of Sections 89 and 89A of the Tenancy Act. The direct sale of land by Indigold to Alumina is also held to be bad in law, and inoperative. 69. (i) In normal circumstances, the order hereafter would have been to direct the Collector to proceed in accordance with Section 89A(5) viz., to hold an enquiry to decide whether the purchaser viz. Indigold had failed to commence the industrial activity and the production of goods and services within the period specified. In the instant case, there is no need of any such direction to hold an enquiry, in view of the letter of Indigold itself, dated 6.12.2008, wherein, it clearly stated that they were no more interested in putting up any industrial project in the said land. (ii) Conse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior counsel appearing for the appellants has also submitted that, as such, appellants are not against the development of Kutch area, but they do want the state to follow the law and exchequer not to suffer. In the circumstances, although we do not approve the action of the State Government, and hold it to be clearly arbitrary and untenable, we are of the view that the aforesaid order will be appropriate to do complete justice in the matter. 70. In the circumstances, we pass the following orders:- (a) The appeal is allowed in part; (b) The impugned judgment and order passed by the High Court is set- aside; (c) The PIL No.44 of 2012 filed by the appellants is allowed by holding that the order dated 18.12.2009 passed by the Government of Gujarat and by the Collector of Kutch on 15.1.2010, are held to be arbitrary and bad in law; (d) In the facts and circumstances of this case, the sale of the concerned land by Indigold to Alumina is held to be bad in law. The land involved in the present case is held to have vested in the State of Gujarat free from all encumbrances, and the amount of Rs. 1.20 crores paid by Alumina to Indigold is treated as full payment towards the compensation p ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
