TMI Blog2006 (1) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... he rules made by the State, we may closely examine the provisions thereof. The right to transfer land on concessional terms, thus, is subject to two limitations, viz., (i) approval of the State is required therefor; and (ii) 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. The 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. Disposal of the authority land is, thus, within the domain of the JDA, subject only to the previous approval of the State Government. Both 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for perpetrating an illegality. Thus, the impugned judgments of the High Court cannot be sustained, but, 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 date. These appeals are allowed to the aforementioned extent but in the facts and circumstances of this case there shall be no order as to costs. - HON'BLE S.B. SINHA AND P.P. NAOLEKAR JJ. For the Appellant : Shiv Sagar Tiwari, Amalpushp Shroti and Prakas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 6. The 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. 7. Further 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 13. Mr. Vivek 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.. 14. Mr. Tankha 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s further pointed out that part of the land is to be utilized for commercial purposes. 18. Ms. Vibha 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. 19. Before adverting to the rival contentions as noticed hereinbefore, we may notice relevant provisions of the statutes. 20. The 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. Jabalpur 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ea or put at the time of preparing the map and includes the register prepared, with the map giving details of land-use. 26. Chapter 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. 27. Section 49 of the 1973 Act provides for town development schemes. Registration on land use and land development is provided for under Section 53 thereof. Section 58 provides for disposal of land in the following terms: 58. 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. 28. Section 72 of the 1973 Act envisages the State Government's power of supervision and control over the acts and proceedings of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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. 34. The 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. However, 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. 35. Rule 3 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rules framed thereunder. State, thus, could not even issue any direction to J.D.A. 40. The 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. 41. In para 5.18 of the writ petition, the Appellant averred: To 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. On 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. 16-T-7 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] 46. 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: This lease will be executed in the name of Bishambar Dayal Aggrawal on the basis of legal entity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 51. We 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 the JDA. 52. Purpose 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 being illegal. 53. So far 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. 54. Mr. Tankha 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: Public Utility: A privately owned and operated business whose services are so essential to the general public as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder itself. Yet again in Mohinder Singh Gill (supra), this Court observed : 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. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji. Referring to Gordhandas Bhanji (supra), it was further observed : Orders are not like old wine becoming better as they grow older. [The said decisions have been followed by this Court in Bahadursinh Lakhubhai Gohil Vs. Jagdishbhai M. Kamalia and Others [(2004) 2 SCC 65]. 59. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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. 63. The 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. 64. The 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and no de'hors the same. 68. It is 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. [See Punjab State Electricity Board Ltd. v. Zora Singh and Others, (2005) 6 SCC 776 and U.O.I. the Govt. of Pondicherry Anr. Vs. V. Ramakrishna Ors., JT 2005 (9) SC 422]. 69. Furthermore, 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. 70. Both 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. 71. However, there are certain subsequent events which should be taken note of. Whereas the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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