As we have observed earlier, in case of 15 out of every 50
flats available, there is absolute discretion vesting with the Hon'ble
Chief Minister. A policy giving such an absolute discretion to the
Hon'ble Chief Minister, in our opinion, makes the policy vulnerable and
arbitrary which is hit by Article 14 of the Constitution of India. This is a
separate and independent reason which we have recorded apart from
our finding that the method is not fair and transparent.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.882 OF 2011
Mr.Chandrabhan Sukhadeo Sangle. .. Petitioner
Vs
Urban Development Department and Others. .. Respondents
WRIT PETITION NO.883 OF 2012
Citation;MANU/MH/0319/2014
Read original judgment here;click here
CORAM
: A.S. OKA & M.S. SONAK, JJ
DATE ON WHICH JUDGMENT IS PRONOUNCED: 20 th MARCH 2014
BASIC FACTS:
1. The Petitioners in these Writ Petitions are claiming that
they were allotted selfcontained
residential flats by the State
Government from the discretionary quota available to the Hon'ble Chief
Minister of the State of Maharashtra.
2. As per the terms and conditions of the schemes sanctioned
by the State Government under the provisions of the Urban Land
(Ceiling and Regulations) Act, 1976 ( for short “the ULC Act”) in
relation to various properties in the Urban Agglomerations in the State,
the State Government is entitled to receive certain residential flats.
These flats form part of the the discretionary quota available to the
Hon'ble Chief Minister of the State of Maharashtra which is popularly
known as “5% quota”. Earlier it was known as “10% quota”. Under the
Maharashtra Housing and Area Development Act, 1976 ( for short
“MHADA Act”), various boards have been established. In exercise of
powers under the MHADA Act, the Maharashtra Housing and Area
Development (Estate Managements, Sale, Transfer and Exchange Of
Tenements ) Regulations, 1981 ( for short “the said Regulations”) have
been framed. The Boards constituted under the MHADA Act are
empowered to construct buildings containing residential tenements.
In fact, one of the functions of such Boards is to provide housing
accommodation in the State. Under Clause (1) of Regulation 16 of the
said Regulations, the Boards are empowered to allot tenements in any
building according to the directions of the State Government. Clause 2
of Regulation 16 of the said Regulations provides that number of
tenements to be allotted as per the directions of the State Government
shall be restricted to the extent of 2% of the total number of tenements
in the buildings. It is provided that the tenements already advertised
for allotment of flats for the members of the public shall not be allotted
under the said 2% quota. 2% of the total number of flats form part of
the the discretionary quota available to the Hon'ble Chief Minister of
the State of Maharashtra which is popularly known as “2% quota”.
3. The State Government has been allotting the flats forming
part of 10% or 5% quota under the ULC Act and 2% quota under the
said Regulations in exercise of the discretionary powers of the Hon'ble
Chief Minister. Various Government Resolutions and orders were issued
from time to time from 18th August 1984 onwards. Lastly, a
Government Resolution was issued on 30th November 2011 providing
for allotment of flats in the discretionary quota of 5% and 2%. The
said Government Resolution dated 30th November 2011 (for short “the
impugned Government Resolution) has been challenged in some of the
Petitions. The said Government Resolution provides that existing
waiting list of Applicants for allotment against the 5% quota shall be
cancelled. It provides that the persons whose names were appearing
in the waiting list will be entitled to apply afresh as per the impugned
Government Resolution.
FACTS OF INDIVIDUAL CASES
4. Before adverting to the submissions made across the bar, it
will be necessary to make a reference to the facts of the cases in brief.
(A) WRIT PETITION NO.882 OF 2011
The Petitioner claims that under the letter of allotment
dated 15th May 1989, the State Government held him
eligible for allotment of a flat in 10% quota in category 3.6.
The letter records that there was a shortage of flats
available under the 10% quota. By the said letter, the
Petitioner was informed that as and when a flat is available,
the same will be allotted to him. The Petitioner is relying
upon the information supplied to him on 12th May 2009
under the Right to Information Act, 2005 that his name
figures at Sr. No.65 in the waiting list of eligible Applicants
as of the year 2006. It is alleged in the Petition that even
after the year 2006, 500 tenements out of 10% quota were
allotted to the persons who are closely related to the
politicians. A writ of mandamus is sought in this Writ
Petition directing the State Government to forthwith allot a
tenement to the Petitioner.
(B) WRIT PETITION NO.883 OF 2012
The Petitioner claims that under the letter dated 24th
November 1993, the State Government informed him that
he was eligible for grant of a flat under 10% quota and that
the allotment will be made as and when a flat is available.
Reliance is placed on the letter dated 18th August 1998
which records that the name of the Petitioner figures at Sr.
No.4331 in the waiting list. Reliance is placed on the
letter dated 19th November 1999 which records that the
name of the Petitioner appears at Sr. No.3843 on the
waiting list and the persons up to Sr. No.65 have been
allotted flats. The grievance in the Petition is that
notwithstanding the representations made from time to
time, a flat has not been allotted to him and in fact, the
flats were allotted to the persons who applied subsequently.
In this Petition, there is a challenge to the impugned
Government Resolution.
(C) WRIT PETITION NO.1228 OF 2011
The Petitioner is a ClassIV
employee working in the office
of the Government Pleader, High Court (Original Side),
Mumbai. He claims that on 3rd March 1993, the State
Government addressed a letter to him informing him that
he was eligible to secure an allotment of a flat under 10%
quota and as and when a flat is available, the same will be
allotted to him. The Petitioner is relying upon the
communication dated 31st July 2006 issued by the
Additional Collector informing him that his name appears
at Sr. No.3831 in the waiting list. In the said letter, it was
stated that it was not possible to allot a flat to the
Petitioner in near future considering the fact that very few
flats are available in Mumbai Urban Agglomeration.
Therefore, the Petitioner was called upon to submit a letter
of consent for allotment of a flat within the limits of other
urban agglomerations in the State. The Petitioner on 20th
December 2007 accordingly submitted a letter opting for a
tenement either in Thane or Ulhasnagar Urban
Agglomeration. Even in this Petition, by way of
amendment, a challenge has been introduced to the
impugned Government Resolution.
(D) WRIT PETITION NO.1500 of 2010
The Petitioner in this Petition has relied upon a letter dated
19th July 1989 by which he was informed that he is eligible
for allotment of a flat in 10% discretionary quota against
the category “3.10”. The Petitioner was informed that as
and when the flats are available, the actual allotment will
be made to him. Reliance is placed on various
representations made by him from time to time. Apart
from claiming relief of allotment of a flat, the Petitioner
has also prayed for setting aside the impugned
Government Resolution.
(E) WRIT PETITION NO.1697 OF 2010
The Petitioner is relying upon the letter dated 11th
December 1989 by which he was informed that he was
eligible to receive a flat in 10% quota as he falls in the
category “3.10”. The Petitioner was informed that as and
when a flat is available, the allotment will be made to him.
The Petitioner is relying upon various representations made
by him from time to time. Apart from the prayer in the
Petition directing the Authorities to allot a flat, there is a
challenge to the impugned Government Resolution dated
30th November 2011.
(F) WRIT PETITION NO.7212 OF 2013
The Petitioner claims that she belongs to the category of
Artists and she is holding a Doctorate in Music. The
Petitioner is relying upon a letter dated 2nd August 1989
addressed to her by which she was informed that she was
eligible to receive an allotment of a flat in 10% quota and
allotment will be made as and when a flat is available. The
Petitioner was informed that she falls in the category “3.6”.
The Petitioner is also relying upon a letter dated 7th October
1989 addressed to her by the Additional Collector of
Mumbai by which her entitlement was confirmed and she
was informed that she will receive allotment approximately
after two and half years. The grievance in the Petition is
that though the representations were made by her from
time to time, the Petitioner was not allotted a flat. The
prayer in the Petition is for issuing a writ of mandamus
directing the Respondents to allot a residential flat to her
admeasuring 850 sq. feet under the Chief Minister's
discretionary quota.
(G) WRIT PETITION NO.7729 OF 2011
The Petitioner claims that his deceased father applied for
an allotment of a flat in 10% discretionary quota. Reliance
is placed on a letter dated 13th December 1989 addressed
to the Petitioner's father by which he was informed that he
is eligible to receive a flat in 10% quota. The Petitioner's
father was informed that he falls in the category “3.10”.
Apart from the prayer for issuing a writ of mandamus for
allotment of a flat, there is a challenge to the impugned
Government Resolution in this Writ Petition.
(H) WRIT PETITION NO.10098 OF 2011
On the basis of the Application made by the Petitioner, the
Desk Officer of the State Government by a letter dated 30th
January 1990 informed the Petitioner that he was eligible
for allotment of a tenement. The Petitioner was called
upon to submit certain documents. It is alleged that on
31st May 2006, a letter was addressed to the Petitioner
stating that his name appears at Sr. No.2564 in the waiting
list. It is stated that as very few tenements are available
in Mumbai, the Petitioner can opt for a tenement in other
Urban Agglomerations. Accordingly, the Petitioner
exercised an option by opting for a tenement within the
limits of Thane/Ulhasnagar Urban agglomeration. The
prayer in the Petition is for directing the Respondents to
allot a tenement in 10% quota.
(I) WRIT PETITION NO.937 OF 2011
In this case, the Petitioner applied for allotment of a flat in
2% quota. On 7th March 1990, the Housing and Special
Assistance Department of the State government informed
the Petitioner that he is eligible for allotment of a flat in the
said quota. Accordingly, Shri Eknath Gaikwad, a Member
of Parliament on 2nd March 2008 recommended the case of
the Petitioner for allotment of a flat in 2% quota of the
Honorable Chief Minister. The Petitioner has pointed out
that he has filed a Writ Petition No.4110 of 2010 in this
Court for disbursement of a flat in 2% quota. The said
Petition is pending. The present Petition is filed for
challenging the Government Resolution dated 23rd February
2007 which provides that the waiting list shall not be
maintained for 2% quota. It is provided in the said
Government Resolution that as and when the tenements
falling in the category of 2% quota are available, the
Applications received for allotment will be placed before
the Honorable Chief Minister and after approval is granted
by the Hon'ble Chief Minister, the orders of allotment will
be issued. It further states that to the remaining
Applicants, a communication will be issued recording the
rejection of their Applications. The second challenge in this
Petition is to the Government Resolution dated 9th
September 2010 which provides that all the Applications
received for grant of tenements under 2% quota during a
calender year will be considered only during that particular
year and the Applications of the Applicants who do not
receive the allotments shall be treated as filed. The
Petitioner is praying for quashing of both the Resolutions.
(J) WRIT PETITION NO.4110 OF 2011
Even in this case, the Petitioner applied for allotment of a
flat in Mumbai in 2% quota in higher income group. The
Petitioner claims that by a letter dated 7th March 1990, the
Housing and Special Assistance Department informed him
that he is eligible for grant of a flat in the said quota.
Reliance is placed on the recommendations made by Shri
Eknath Gaikwad, a Member of Parliament by which his case
was recommended to the Hon'ble Chief Minister. The
Petitioner has contended that he is a handicapped person
and that he has been kept away from allotment. A
direction is sought for allotment of a flat against the said
2% quota.
(K) WRIT PETITION NO.4117 OF 2013
The Petitioner applied for allotment of a flat against 10%
quota. By a letter dated 2nd August 1989, the Additional
Collector, Mumbai informed the Petitioner that he has been
held eligible for allotment. The Petitioner made a
representation for allotment of a flat. The case of the
Petitioner was recommended by one Shri Ashok Bhau
Jadhav, a Member of Legislative Assembly. A prayer in the
Petition is for issuing a writ of mandamus directing the
Respondents to allot a flat admeasuring 800 sq. feet in the
city of Mumbai to the Petitioner.
SUBMISSIONS
5. The basic submission of the learned counsel representing
for the Petitioners is that in the case of each Petitioner, the State
Government has accepted his/her entitlement to the allotment of a flat
either against 5% or against 2% quota, as the case may be. Their
submission is that the a waiting list of the persons selected for
allotments was prepared in which the names of the Petitioners appear
and, therefore, there is a legitimate expectation that each Petitioner will
eventually get an actual allotment of a flat. The submission is that the
letters issued by the State Government to the Petitioners create a right
in them to get allotment. The learned counsel for the respective
Petitioners have criticized the subsequent Government Resolutions
including the impugned Government Resolution by which the waiting
lists were scrapped. Their contention is that there is a material on
record to show that to the persons who were below the Petitioners in
the waiting lists, allotments of flats have been made. By referring to the
affidavit in reply
of the State in one of the Petitions, it was contended
that the State Government has found that in several cases, the persons
who were not eligible to get allotment have been actually allotted the
flats. The submission is that the State should take steps to recover the
possession of the flats illegally allotted to such persons and that the
said flats be allotted to the persons on the waiting list as per their turn.
Their submission is that the impugned Government Resolution is
arbitrary as it seeks to withdraw the right conferred on the persons to
whom allotments are already made as per the earlier policy. Their
contention is that the right which was already accrued in favour of the
Petitioners cannot be taken away by the subsequent Government
Resolutions. Their contention is that the impugned Government
Resolution is even otherwise illegal as it does not provide for any fair
and transparent procedure and on the contrary, the same is arbitrary as
it takes away the rights accrued to the Petitioners. The learned
Government Pleader submitted that as per the law laid down by this
Court, the alleged allotment under the discretionary quota of the
Hon'ble Chief Minister does not create any right in favour of the
Petitioners. He submitted that by a communication dated 28th February
2014, the State Government has informed him that there is a proposal
to modify the impugned Government Resolution dated 30th November
2011 for providing for a fair and transparent procedure for allotment of
flats in the 2% and 5% quota.
CONSIDERATION OF SUBMISSIONS
6. We have carefully considered the submissions. As stated
earlier, Government Resolutions were issued from time to time
providing for allotment of flats in 10% ( subsequently 5%) and 2%
quota. One of such Government Resolution is dated 14th July 1986
regarding allotment of flats in 10% or 2% quota. It provides for ten
categories of Applicants. The first nine categories are of various persons
such as the legal representatives of historical figures in Maharashtra,
freedom fighters or spouses of freedom fighters or their legal
representatives, War heroes, past and present members of Vidhan Sabha
and Vidhan Parishad, Artists, Journalists etc. The tenth category is of
persons who do not belong to any of the nine categories, but those who
have a dire need of residential premises. The said Government
Resolution does not provide for an order of priority amongst these nine
categories. Even a specific percentage of allotment of flats from the
available flats for each category is also not provided. There is no
procedure for inviting applications for allotment by a public notice.
There is no provision for giving a public notice regarding the
availability of the flats under the quota and inviting applications for
allotment. The said Government Resolution dated 14th July 1986 was
modified from time to time by various Government Resolutions. On
30th September 1997, the State Government issued a booklet containing
the policy decision of the State Government as regards the allotment of
flats in 2% and 5% quota and the procedure and the terms and
conditions of the allotment. The said booklet shows that as far as the
flats in 5% quota are concerned, there is a formula laid down for
calculating the price of the flats. It is provided that 75% of the price is
payable in relation to the flats in 2% quota. Even in case of flats in 2%
quota, there is a formula prescribed for calculating the price. As per the
said policy decision, the allotments of flats in both categories are made
at a price which is much below the prevailing market price. The ten
categories of the Applicants are provided in the said policy as per the
categories provided in the Government Resolution dated 14th July 1986.
The 10th category is of the persons who do not fall in first nine
categories. It is the category of those who are in a “dire need” of the
premises. It is provided that the persons falling in such category will
be made allotment of flats as a “special case”.
7. It is provided that out of the flats available under 5 %
quota, 50% of the flats are to be utilized for allotment as service
quarters to the employees for the State or the employees of the State
owned Corporations and public sector undertakings. A procedure is
prescribed for allotment of the said flats. It is provided that the
remaining 50% flats will be allotted to the Applicants in ten categories
specified therein by the Hon'ble Chief Minister . Even out of such 50%
flats, 15 out of every 50 flats will be allotted purely at the discretion of
the Hon'ble the Chief Minister. As far as the flats in 2% quota are
concerned, the same will be allotted to the various categories of the
Applicants as decided by the Hon'ble Chief Minister. In case of 2%
quota, 50% flats will be allotted on the basis of the respective dates of
the Applications and remaining 50% will be allotted as provided in case
of flats in 5% quota. There is a further Government Resolution dated 6th
September 1999 which makes certain modifications in the earlier
policies. However, the modifications are of minor nature. In none of
the policies/Resolutions there is a requirement of giving a public notice
of the availability of flats and for inviting applications for allotment.
8. Lastly, it will be necessary to make a reference to the
impugned Government Resolution dated 30th November 2011. It will
be necessary to make a reference to the Clause (a) of the Resolution
which reads thus:
“(a) Guideline Principles for allotment of the
tenements
(i) Out of total number of tenements made
available for allotment under discretionary
quota in (5% and 2%) in one calender year,
50% of the tenements shall be reserved for
allotment of such tenements to the employees
of Government and SemiGovernment
offices,
Public Undertakings, Corporations etc for
allotting them as service quarters. In respect
of SemiGovernment
Institutions priority for
allotment of tenements shall be given to the
employees of local municipal Corporations,
police housing, fire brigade and electricity
distribution institutions etc.
(ii) The remaining 50% tenements under the
discretionary quota shall be allotted to the
eligible persons of various categories by the
Hon'ble Chief Minister.”
(Underline added )
9. Clause (c) provides for procedure for allotment in different
categories. Clause (c) reads thus:
“(c) Procedure for allotment of tenements under
discretionary quota to the applicants of different
categories
It is necessary that the applicant applying for allotment
of 5% and 2% tenement under the Government
discretionary quota should one be from any of the
following categories. The categories specified are as
follows:
Serial
No.
Name of the Category Category
No.
1. Family member of Martyrs of Defense
and Police personnel who died while
discharging his/her duties
1.1
2. Sitting/ExMembers
of Parliament
from Maharashtra, Sitting/ExMembers
of the Legislative or family
members of the member of
legislature who had died during his
term as legislator
1.2
3. Recipient of Best Journalism Award
of State Government or accredited
Journalist
1.3
4. Sportsperson who has received
Padma award or at least one medal in
the Olympic Games or Common
Wealth Games or Asian Games
1.4
5. Scientist who has received at least
one award from any of the following
awards Padma award/Bhatnagar
award/Maharashtra Bhushan award.
1.5
10. SubClause(
i) of Clause (d) provides that there is no
income limit for the above categories of persons who are eligible to
apply for allocation of tenements under the discretionary quota.
Clause (e) deals with the waiting list, which reads thus:
“(e) Waiting List:
The waiting list maintained under 5% discretionary
quota of the applicants under all Urban
Agglomeration is hereby cancelled. However
applicants mentioned in the said waiting list are at
liberty to make fresh applications. Henceforth, the
tenements shall b allotted to various categories of
the persons as mentioned in (C ) above. While
making such allotments applications received in one
calender year will be considered. However, if
allotment of tenement could not be made to the
applicants at the end of the year such applications
shall be deemed to be rejected and Government
shall not entertain any correspondence with such
applicants. However, the applicants whose
applications have been deemed to be rejected, shall
be at liberty to make fresh application in the next
calender year as per the above specified categories
of persons.”
11. The important features of all the Government Resolutions
which provide for allotment of flats in 2% and 5% discretionary quota
are as under:
(i) As far as flats in 5% quota is concerned, the same
are situated in various Urban Agglomerations in the
State. As far as flats in 2% quota are concerned, the
same are available in various Cities within the
jurisdiction of Boards constituted under Section 18
of the MHADA Act. Thus, the flats are available in
the prominent cities like Mumbai, Pune, Thane,
Nagpur etc.
(ii) There is no provision for giving any public notice to
the members of the public informing them that the
flats are available for allotments under 5% and 2%
quota. There is no provision for informing the public
as to how many flats are available in each
Agglomeration. There is no provision for
maintaining and displaying an exhaustive list of the
details of the available flats after periodical
intervals;
(iii) There is no provision for giving a public notice for
inviting applications for allotment of flats which are
as available under 10% and 2% quota;
(iv) In case of 2% quota, there is some provision for
display of a notice only in the offices of MHADA.
But no provision is made made for giving a public
notice for inviting applications;
(v) Thus, the members of the public who are eligible
under the policy are not at all put to notice that the
flats are available with the State Government for
allotment under 5% and 2% quota;
(vi) Hence, only those who know about the
discretionary quota apply for allotment to the State
Government;
(vii) The flats are allotted against both the quotas at a
price which is less than the prevailing market price;
(viii) Out of the flats available for allotment to the
members of the public, 50% are allotted on the
basis of the “first come first serve” principle. The
remaining 50% flats are allotted at the discretion of
the Hon'ble Chief Minister. The Hon'ble Chief
Minister decides whether there is a dire need to an
individual Applicant. There is no criteria laid down
for determining what is the dire need. Even in this
50% , in case of 15 flats out of every 50, the Hon'ble
Chief Minister has absolute discretion as far as the
allotment is concerned;
(xi) Though various categories such as legal
representatives of the historical personalities,
freedom fighters, Members of Legislature etc. are
provided, the percentage of the available flats to be
allotted to each category has not been fixed.
Moreover, interse
priority has not been fixed.
LEGAL POSITION AND FINDINGS ON FACTUAL ASPECTS
12. At this stage, it will be necessary to make a reference to the
decision of the Apex Court in the case of Akhil Bhartiya Upbhokta
Congress v. State of Madhya Pradesh and Others1. Paragraphs 65 to 67
of the said decision reads thus:
“65. 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 nondiscriminatory
and 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
licence, etc. by the State and its
agencies/instrumentalities should
always be done in a fair and equitable
manner and the element of favouritism or
nepotism shall not influence the exercise of
discretion, if any, conferred upon the
particular functionary or officer of the State.
66. 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
dehors an invitation or advertisement by
the State or its agency/instrumentality.
By entertaining 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
1 (2011)5 SCC 29
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 favouritism
and/or nepotism violating the soul of the
equality clause embodied in Article 14 of the
Constitution.
67. 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
similarly 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.”
(emphasis added)
13. We may also make a useful reference to the decision of the
Apex Court in the case of Meerut Development Authority v. Association of
Management Studies2 and in particular Paragraph 28 thereof, which
reads as under :
“28. It is so well settled in law and needs no
restatement at our hands that disposal of the
2 (2009)6 SCC 171
public property by the State or its
instrumentalities partakes the character of a
trust. The methods to be adopted for disposal
of public property must be fair and
transparent providing an opportunity to all
the interested persons to participate in the
process.”
(emphasis added)
14. In Paragraph 40 of the said case, Sachidanand Pandey v.
State of West Bengal3 the Apex Court held thus:
“40. On a consideration of the relevant cases
cited at the Bar the following propositions may
be taken as well established: State-owned or
public-owned property is not to be dealt with at
the absolute discretion of the executive. Certain
precepts and principles have to be observed.
Public interest is the paramount consideration.
One of the methods of securing the public
interest, when it is considered necessary to
dispose of a property, is to sell the property by
public auction or by inviting tenders. Though that
is the ordinary rule, it is not an invariable rule.
There may be situations where there are
compelling reasons necessitating departure from
the rule but then the reasons for the departure
must be rational and should not be suggestive of
discrimination. Appearance of public justice is as
important as doing justice. Nothing should be
done which gives an appearance of bias, jobbery
or nepotism.”
15. In the case of Humanity and Another v. State of West Bengal
and Others4, in Paragraph 23, the Apex Court held thus:
“23. It has been repeatedly held by this Court
that in the matter of granting largesse, the
Government has to act fairly and without
even any semblance of discrimination. Law on
this subject has been very clearly laid down by
3 (1987)2 SCC 29
4 (2011)6 SCC 125
this Court in Ramana Dayaram Shetty v.
International Airport Authority of India1. A three-
Judge Bench in the said decision has recognised
that the Government, in a welfare State, is in a
position of distributing largesse in a large
measure and in doing so the Government
cannot act at its pleasure. This Court perusing
the new jurisprudential theory of Professor Reich
in his article on “The New Property” accepted
the following dictum contained therein: (SCC p.
505, para 11)
“11. … That Government action be based on
standards that are not arbitrary or unauthorised.”
(emphasis added)
16. In case of alienation or allotment of natural resources, the
Apex Court in the case of Natural Resources Allocation, In Re, Special
Reference No.1 of 20125 held that the allocation has to be made by a
method which is fair and transparent. It was held that though a public
auction is more preferable method, that is not only the method
available for fair and transparent allocations.
17. Thus, the principles which emerge from various decisions
of the Apex Court can be summarized as under:
(a) A property vesting in the State can be disposed of
only on the basis of a fair and transparent policy;
(b) The methods to be adopted for disposal of the
public properties must be fair and transparent
5 (2012)10 SCC 1
providing a fair opportunity to all the
eligible/interested persons to participate in the
process;
(c) A policy of providing for allotment of the State
owned properties on the basis of the Applications
made by the individuals without a public
advertisement or invitation by the State cannot be a
rational policy. It cannot be a fair and trasparent
method;
(d) Allotment of the properties vesting in the
Government cannot be treated as a private venture;
(e) While distributing the property vesting in the State,
the Government cannot act at its pleasure;
(f) In such matters, the Government must act without
even a semblance of discrimination.
CONCLUSIONS:
18. Now coming to the Government Resolutions on the basis of
which an allotment of flats in 5% and 2% quota is made, there is no
procedure for issuing advertisement for inviting applications. There is
no procedure for advertising that a particular numbers of flats in a
particular city are available for allotment. Thus, the policy which is
reflected from all the Government Resolutions provides for allotments
of flats on the basis of the applications which are made without
invitation and without publishing any advertisement. Such a policy does
not give fair opportunity to all eligible/interested persons to apply.
Such a policy is discriminatory which is in breach of Article 14 of the
constitution of India. Moreover, as observed earlier, the allotment is at
the discretion of the Hon'ble Chief Minister. The question whether
there is a dire need of allotment of the premises is left to the absolute
discretion of the Hon'ble Chief Minister. All this is being done for
granting flats vesting in the state at a concessional price.
19. No detailed reasons are required to be recorded for coming
to the conclusion that not only that the procedure adopted by the State
is not fair and transparent but the procedure adopted by the State is
arbitrary. We are constrained to observe that the method of allotment
adopted by the State Government shows that the State Government is
treating the whole process as a private venture.
20. As far as the discretion vesting in the Hon'ble Chief
Minister is concerned, it is true that in the facts of these cases there is
no grievance made about the exercise of powers by the Hon'ble Chief
Minister. However, we are testing the method adopted by the State on
the touchstone of fairness. Hence, we cannot resist the temptation of
making a reference to a decision of the Apex Court in the case of Delhi
Transport Corporation v. D.T.C. Mazdoor Congress and Others6. We are
referring to the judgment of Hon'ble Shri Justice P.B. Sawant, J ( as he
then was). We must refer to what is observed by the Apex Court in
Paragraph 230, which reads thus:“
230. There is need to minimise the scope of the
arbitrary use of power in all walks of life. It is
inadvisable to depend on the good sense of the
individuals, however high-placed they may be. It
is all the more improper and undesirable to
expose the precious rights like the rights of life,
liberty and property to the vagaries of the
individual whims and fancies. It is trite to say
that individuals are not and do not become
wise because they occupy high seats of
power, and good sense, circumspection and
fairness does not go with the posts,
however high they may be. There is only a
complacent presumption that those who
occupy high posts have a high sense of
responsibility. The presumption is neither legal
nor rational. History does not support it and
reality does not warrant it. In particular, in a
society pledged to uphold the rule of law, it
would be both unwise and impolitic to leave
any aspect of its life to be governed by
discretion when it can conveniently and
easily be covered by the rule of law.”
(emphasis added)
6 1991 SUP (1) SCC 600
21. As we have observed earlier, in case of 15 out of every 50
flats available, there is absolute discretion vesting with the Hon'ble
Chief Minister. A policy giving such an absolute discretion to the
Hon'ble Chief Minister, in our opinion, makes the policy vulnerable and
arbitrary which is hit by Article 14 of the Constitution of India. This is a
separate and independent reason which we have recorded apart from
our finding that the method is not fair and transparent.
22. We must note here that during the course of hearing, the
learned Government Pleader has placed on record a letter dated 28th
February 2014 addressed to him by the State Government which
records that the State Government proposes to make necessary
amendments to the impugned Government Resolution dated 30th
November 2011 with a view to make the process fair and transparent.
The letter records the proposed modifications and states that the State
Government will make modifications provided the Court approves the
same. Suffice it to say that all policies of the State Government in
relation to the allotment of flats in 5% and 2% quota including the
impugned Government Resolution dated 30th November 2011 are
arbitrary and illegal. It is for the State Government to provide for a
fair and transparent procedure as per the law of the land.
::: Downloaded on - 22/05/2014 16:31:54 :::
Bombay High Court
ash 33 wp-882.11-group
23. In case of all the Petitioners, they are relying upon the
letters written either by the State Government or by the Additional
Collector holding them eligible for allotment of flats either in 5% or 2%
quota. Some of them have been a part of the waiting lists. Even
assuming that there are allotments made to the Petitioners, the
allotments are made on the basis of the policy which is not at all fair
and transparent. The Petitioners are beneficiaries of the policies of the
State Government which are arbitrary and hit by the Article 14 of the
Constitution of India. Such Petitioners cannot claim any right on the
basis of the alleged allotments. It is well settled that the concept of
legitimate expectation has no role to play where the State action is as a
public policy5. Therefore, the plea of legitimate expectation will have to
be rejected. None of the Petitioners have made out a case that the
public advertisements were published on the basis of which they made
applications for allotment of flats. Some of them have come out with
the case that their applications were recommended by the politicians.
Hence, no relief can be granted to the Petitioners on the basis of the so
called letters of allotment issued to them.
24. The contention of the Petitioners that the waiting lists
could not have been scrapped has again no merit inasmuch as the
waiting lists have been prepared by following a peculiar procedure
which is not at all fair and transparent.
5 Sethi Auto Service Station and Anr. v. Delhi Development Authority & Ors. (2009)1 SCC 180
::: Downloaded on - 22/05/2014 16:31:54 :::
Bombay High Court
ash 34 wp-882.11-group
25. In some of the Petitions, there is a challenge to the
impugned Government Resolution dated 30th November 2011. There is
also a challenge to the Government Resolutions dated 27th February
2007 and 9th September 2010. Even these Resolutions do not provide
for a lawful method. We have held that the Government Resolutions
are completely illegal on the grounds which we have set out earlier. It
is, therefore, obvious that no allotments can be made on the basis of the
Government Resolutions dealing with 2% or 5% quota and in particular
the impugned Government Resolutions dated 30th November 2011.
Hence, we propose to restrain the State Government from making any
allotments hereafter as per the Resolutions. We are not dealing with the
allotments which have been given effect by placing the persons in
possession of the flats allotted. It is always open for the State
Government to come out with a fair and transparent policy for
allotment of the flats vesting in the State Government. We have a
serious doubt whether the flats vesting in the State Government could
be allotted at the concessional rate without fixing any income criteria.
However, it is for the State Government to decide. We must clarify that
the restraint order will not apply to allocation of the flats as service
quarters to the employees of the State Government or the employees of
the State controlled Corporations/public sector undertakings.
::: Downloaded on - 22/05/2014 16:31:54 :::
Bombay High Court
ash 35 wp-882.11-group
26. Hence, we dispose of the Petition by passing the following
order:
ORDER :
(a) The prayers made by the Petitioners for allotment of
flats stand rejected;
(b) We declare that the impugned Government
Resolution dated 30th November 2011 (which
supersedes all earlier Government Resolutions on
the subject) is arbitrary, irrational and illegal. The
State Government is hereby restrained from making
any further allotments on the basis of the impugned
Government Resolution dated 30th November 2011.
We clarify that this restraint will not apply to
allotment of the flats as service quarters as observed
in Paragraph 25 above;
(c) We make it clear that it will be open for the State
Government to come out with a fair and transparent
policy for allotment of flats under 5% and 2%
quota;
::: Downloaded on - 22/05/2014 16:31:54 :::
Bombay High Court
ash 36 wp-882.11-group
(d) The Petitions are disposed of on above terms.
(e) Civil Application No.1157 of 2010 in Writ Petition
No.1697 of 2010 and Civil Application No.211 of
2011 and Civil Application No.3009 of 2013 in Writ
Petition No.937 of 2011 do not survive and the
same is disposed of.
(M. S. SONAK, J) ( A.S. OKA, J )
::: Downloaded on - 22/05/2014 16:31:54 :::
Print Page
flats available, there is absolute discretion vesting with the Hon'ble
Chief Minister. A policy giving such an absolute discretion to the
Hon'ble Chief Minister, in our opinion, makes the policy vulnerable and
arbitrary which is hit by Article 14 of the Constitution of India. This is a
separate and independent reason which we have recorded apart from
our finding that the method is not fair and transparent.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.882 OF 2011
Mr.Chandrabhan Sukhadeo Sangle. .. Petitioner
Vs
Urban Development Department and Others. .. Respondents
WRIT PETITION NO.883 OF 2012
Citation;
Read original judgment here;click here
CORAM
: A.S. OKA & M.S. SONAK, JJ
DATE ON WHICH JUDGMENT IS PRONOUNCED: 20 th MARCH 2014
BASIC FACTS:
1. The Petitioners in these Writ Petitions are claiming that
they were allotted selfcontained
residential flats by the State
Government from the discretionary quota available to the Hon'ble Chief
Minister of the State of Maharashtra.
2. As per the terms and conditions of the schemes sanctioned
by the State Government under the provisions of the Urban Land
(Ceiling and Regulations) Act, 1976 ( for short “the ULC Act”) in
relation to various properties in the Urban Agglomerations in the State,
the State Government is entitled to receive certain residential flats.
These flats form part of the the discretionary quota available to the
Hon'ble Chief Minister of the State of Maharashtra which is popularly
known as “5% quota”. Earlier it was known as “10% quota”. Under the
Maharashtra Housing and Area Development Act, 1976 ( for short
“MHADA Act”), various boards have been established. In exercise of
powers under the MHADA Act, the Maharashtra Housing and Area
Development (Estate Managements, Sale, Transfer and Exchange Of
Tenements ) Regulations, 1981 ( for short “the said Regulations”) have
been framed. The Boards constituted under the MHADA Act are
empowered to construct buildings containing residential tenements.
In fact, one of the functions of such Boards is to provide housing
accommodation in the State. Under Clause (1) of Regulation 16 of the
said Regulations, the Boards are empowered to allot tenements in any
building according to the directions of the State Government. Clause 2
of Regulation 16 of the said Regulations provides that number of
tenements to be allotted as per the directions of the State Government
shall be restricted to the extent of 2% of the total number of tenements
in the buildings. It is provided that the tenements already advertised
for allotment of flats for the members of the public shall not be allotted
under the said 2% quota. 2% of the total number of flats form part of
the the discretionary quota available to the Hon'ble Chief Minister of
the State of Maharashtra which is popularly known as “2% quota”.
3. The State Government has been allotting the flats forming
part of 10% or 5% quota under the ULC Act and 2% quota under the
said Regulations in exercise of the discretionary powers of the Hon'ble
Chief Minister. Various Government Resolutions and orders were issued
from time to time from 18th August 1984 onwards. Lastly, a
Government Resolution was issued on 30th November 2011 providing
for allotment of flats in the discretionary quota of 5% and 2%. The
said Government Resolution dated 30th November 2011 (for short “the
impugned Government Resolution) has been challenged in some of the
Petitions. The said Government Resolution provides that existing
waiting list of Applicants for allotment against the 5% quota shall be
cancelled. It provides that the persons whose names were appearing
in the waiting list will be entitled to apply afresh as per the impugned
Government Resolution.
FACTS OF INDIVIDUAL CASES
4. Before adverting to the submissions made across the bar, it
will be necessary to make a reference to the facts of the cases in brief.
(A) WRIT PETITION NO.882 OF 2011
The Petitioner claims that under the letter of allotment
dated 15th May 1989, the State Government held him
eligible for allotment of a flat in 10% quota in category 3.6.
The letter records that there was a shortage of flats
available under the 10% quota. By the said letter, the
Petitioner was informed that as and when a flat is available,
the same will be allotted to him. The Petitioner is relying
upon the information supplied to him on 12th May 2009
under the Right to Information Act, 2005 that his name
figures at Sr. No.65 in the waiting list of eligible Applicants
as of the year 2006. It is alleged in the Petition that even
after the year 2006, 500 tenements out of 10% quota were
allotted to the persons who are closely related to the
politicians. A writ of mandamus is sought in this Writ
Petition directing the State Government to forthwith allot a
tenement to the Petitioner.
(B) WRIT PETITION NO.883 OF 2012
The Petitioner claims that under the letter dated 24th
November 1993, the State Government informed him that
he was eligible for grant of a flat under 10% quota and that
the allotment will be made as and when a flat is available.
Reliance is placed on the letter dated 18th August 1998
which records that the name of the Petitioner figures at Sr.
No.4331 in the waiting list. Reliance is placed on the
letter dated 19th November 1999 which records that the
name of the Petitioner appears at Sr. No.3843 on the
waiting list and the persons up to Sr. No.65 have been
allotted flats. The grievance in the Petition is that
notwithstanding the representations made from time to
time, a flat has not been allotted to him and in fact, the
flats were allotted to the persons who applied subsequently.
In this Petition, there is a challenge to the impugned
Government Resolution.
(C) WRIT PETITION NO.1228 OF 2011
The Petitioner is a ClassIV
employee working in the office
of the Government Pleader, High Court (Original Side),
Mumbai. He claims that on 3rd March 1993, the State
Government addressed a letter to him informing him that
he was eligible to secure an allotment of a flat under 10%
quota and as and when a flat is available, the same will be
allotted to him. The Petitioner is relying upon the
communication dated 31st July 2006 issued by the
Additional Collector informing him that his name appears
at Sr. No.3831 in the waiting list. In the said letter, it was
stated that it was not possible to allot a flat to the
Petitioner in near future considering the fact that very few
flats are available in Mumbai Urban Agglomeration.
Therefore, the Petitioner was called upon to submit a letter
of consent for allotment of a flat within the limits of other
urban agglomerations in the State. The Petitioner on 20th
December 2007 accordingly submitted a letter opting for a
tenement either in Thane or Ulhasnagar Urban
Agglomeration. Even in this Petition, by way of
amendment, a challenge has been introduced to the
impugned Government Resolution.
(D) WRIT PETITION NO.1500 of 2010
The Petitioner in this Petition has relied upon a letter dated
19th July 1989 by which he was informed that he is eligible
for allotment of a flat in 10% discretionary quota against
the category “3.10”. The Petitioner was informed that as
and when the flats are available, the actual allotment will
be made to him. Reliance is placed on various
representations made by him from time to time. Apart
from claiming relief of allotment of a flat, the Petitioner
has also prayed for setting aside the impugned
Government Resolution.
(E) WRIT PETITION NO.1697 OF 2010
The Petitioner is relying upon the letter dated 11th
December 1989 by which he was informed that he was
eligible to receive a flat in 10% quota as he falls in the
category “3.10”. The Petitioner was informed that as and
when a flat is available, the allotment will be made to him.
The Petitioner is relying upon various representations made
by him from time to time. Apart from the prayer in the
Petition directing the Authorities to allot a flat, there is a
challenge to the impugned Government Resolution dated
30th November 2011.
(F) WRIT PETITION NO.7212 OF 2013
The Petitioner claims that she belongs to the category of
Artists and she is holding a Doctorate in Music. The
Petitioner is relying upon a letter dated 2nd August 1989
addressed to her by which she was informed that she was
eligible to receive an allotment of a flat in 10% quota and
allotment will be made as and when a flat is available. The
Petitioner was informed that she falls in the category “3.6”.
The Petitioner is also relying upon a letter dated 7th October
1989 addressed to her by the Additional Collector of
Mumbai by which her entitlement was confirmed and she
was informed that she will receive allotment approximately
after two and half years. The grievance in the Petition is
that though the representations were made by her from
time to time, the Petitioner was not allotted a flat. The
prayer in the Petition is for issuing a writ of mandamus
directing the Respondents to allot a residential flat to her
admeasuring 850 sq. feet under the Chief Minister's
discretionary quota.
(G) WRIT PETITION NO.7729 OF 2011
The Petitioner claims that his deceased father applied for
an allotment of a flat in 10% discretionary quota. Reliance
is placed on a letter dated 13th December 1989 addressed
to the Petitioner's father by which he was informed that he
is eligible to receive a flat in 10% quota. The Petitioner's
father was informed that he falls in the category “3.10”.
Apart from the prayer for issuing a writ of mandamus for
allotment of a flat, there is a challenge to the impugned
Government Resolution in this Writ Petition.
(H) WRIT PETITION NO.10098 OF 2011
On the basis of the Application made by the Petitioner, the
Desk Officer of the State Government by a letter dated 30th
January 1990 informed the Petitioner that he was eligible
for allotment of a tenement. The Petitioner was called
upon to submit certain documents. It is alleged that on
31st May 2006, a letter was addressed to the Petitioner
stating that his name appears at Sr. No.2564 in the waiting
list. It is stated that as very few tenements are available
in Mumbai, the Petitioner can opt for a tenement in other
Urban Agglomerations. Accordingly, the Petitioner
exercised an option by opting for a tenement within the
limits of Thane/Ulhasnagar Urban agglomeration. The
prayer in the Petition is for directing the Respondents to
allot a tenement in 10% quota.
(I) WRIT PETITION NO.937 OF 2011
In this case, the Petitioner applied for allotment of a flat in
2% quota. On 7th March 1990, the Housing and Special
Assistance Department of the State government informed
the Petitioner that he is eligible for allotment of a flat in the
said quota. Accordingly, Shri Eknath Gaikwad, a Member
of Parliament on 2nd March 2008 recommended the case of
the Petitioner for allotment of a flat in 2% quota of the
Honorable Chief Minister. The Petitioner has pointed out
that he has filed a Writ Petition No.4110 of 2010 in this
Court for disbursement of a flat in 2% quota. The said
Petition is pending. The present Petition is filed for
challenging the Government Resolution dated 23rd February
2007 which provides that the waiting list shall not be
maintained for 2% quota. It is provided in the said
Government Resolution that as and when the tenements
falling in the category of 2% quota are available, the
Applications received for allotment will be placed before
the Honorable Chief Minister and after approval is granted
by the Hon'ble Chief Minister, the orders of allotment will
be issued. It further states that to the remaining
Applicants, a communication will be issued recording the
rejection of their Applications. The second challenge in this
Petition is to the Government Resolution dated 9th
September 2010 which provides that all the Applications
received for grant of tenements under 2% quota during a
calender year will be considered only during that particular
year and the Applications of the Applicants who do not
receive the allotments shall be treated as filed. The
Petitioner is praying for quashing of both the Resolutions.
(J) WRIT PETITION NO.4110 OF 2011
Even in this case, the Petitioner applied for allotment of a
flat in Mumbai in 2% quota in higher income group. The
Petitioner claims that by a letter dated 7th March 1990, the
Housing and Special Assistance Department informed him
that he is eligible for grant of a flat in the said quota.
Reliance is placed on the recommendations made by Shri
Eknath Gaikwad, a Member of Parliament by which his case
was recommended to the Hon'ble Chief Minister. The
Petitioner has contended that he is a handicapped person
and that he has been kept away from allotment. A
direction is sought for allotment of a flat against the said
2% quota.
(K) WRIT PETITION NO.4117 OF 2013
The Petitioner applied for allotment of a flat against 10%
quota. By a letter dated 2nd August 1989, the Additional
Collector, Mumbai informed the Petitioner that he has been
held eligible for allotment. The Petitioner made a
representation for allotment of a flat. The case of the
Petitioner was recommended by one Shri Ashok Bhau
Jadhav, a Member of Legislative Assembly. A prayer in the
Petition is for issuing a writ of mandamus directing the
Respondents to allot a flat admeasuring 800 sq. feet in the
city of Mumbai to the Petitioner.
SUBMISSIONS
5. The basic submission of the learned counsel representing
for the Petitioners is that in the case of each Petitioner, the State
Government has accepted his/her entitlement to the allotment of a flat
either against 5% or against 2% quota, as the case may be. Their
submission is that the a waiting list of the persons selected for
allotments was prepared in which the names of the Petitioners appear
and, therefore, there is a legitimate expectation that each Petitioner will
eventually get an actual allotment of a flat. The submission is that the
letters issued by the State Government to the Petitioners create a right
in them to get allotment. The learned counsel for the respective
Petitioners have criticized the subsequent Government Resolutions
including the impugned Government Resolution by which the waiting
lists were scrapped. Their contention is that there is a material on
record to show that to the persons who were below the Petitioners in
the waiting lists, allotments of flats have been made. By referring to the
affidavit in reply
of the State in one of the Petitions, it was contended
that the State Government has found that in several cases, the persons
who were not eligible to get allotment have been actually allotted the
flats. The submission is that the State should take steps to recover the
possession of the flats illegally allotted to such persons and that the
said flats be allotted to the persons on the waiting list as per their turn.
Their submission is that the impugned Government Resolution is
arbitrary as it seeks to withdraw the right conferred on the persons to
whom allotments are already made as per the earlier policy. Their
contention is that the right which was already accrued in favour of the
Petitioners cannot be taken away by the subsequent Government
Resolutions. Their contention is that the impugned Government
Resolution is even otherwise illegal as it does not provide for any fair
and transparent procedure and on the contrary, the same is arbitrary as
it takes away the rights accrued to the Petitioners. The learned
Government Pleader submitted that as per the law laid down by this
Court, the alleged allotment under the discretionary quota of the
Hon'ble Chief Minister does not create any right in favour of the
Petitioners. He submitted that by a communication dated 28th February
2014, the State Government has informed him that there is a proposal
to modify the impugned Government Resolution dated 30th November
2011 for providing for a fair and transparent procedure for allotment of
flats in the 2% and 5% quota.
CONSIDERATION OF SUBMISSIONS
6. We have carefully considered the submissions. As stated
earlier, Government Resolutions were issued from time to time
providing for allotment of flats in 10% ( subsequently 5%) and 2%
quota. One of such Government Resolution is dated 14th July 1986
regarding allotment of flats in 10% or 2% quota. It provides for ten
categories of Applicants. The first nine categories are of various persons
such as the legal representatives of historical figures in Maharashtra,
freedom fighters or spouses of freedom fighters or their legal
representatives, War heroes, past and present members of Vidhan Sabha
and Vidhan Parishad, Artists, Journalists etc. The tenth category is of
persons who do not belong to any of the nine categories, but those who
have a dire need of residential premises. The said Government
Resolution does not provide for an order of priority amongst these nine
categories. Even a specific percentage of allotment of flats from the
available flats for each category is also not provided. There is no
procedure for inviting applications for allotment by a public notice.
There is no provision for giving a public notice regarding the
availability of the flats under the quota and inviting applications for
allotment. The said Government Resolution dated 14th July 1986 was
modified from time to time by various Government Resolutions. On
30th September 1997, the State Government issued a booklet containing
the policy decision of the State Government as regards the allotment of
flats in 2% and 5% quota and the procedure and the terms and
conditions of the allotment. The said booklet shows that as far as the
flats in 5% quota are concerned, there is a formula laid down for
calculating the price of the flats. It is provided that 75% of the price is
payable in relation to the flats in 2% quota. Even in case of flats in 2%
quota, there is a formula prescribed for calculating the price. As per the
said policy decision, the allotments of flats in both categories are made
at a price which is much below the prevailing market price. The ten
categories of the Applicants are provided in the said policy as per the
categories provided in the Government Resolution dated 14th July 1986.
The 10th category is of the persons who do not fall in first nine
categories. It is the category of those who are in a “dire need” of the
premises. It is provided that the persons falling in such category will
be made allotment of flats as a “special case”.
7. It is provided that out of the flats available under 5 %
quota, 50% of the flats are to be utilized for allotment as service
quarters to the employees for the State or the employees of the State
owned Corporations and public sector undertakings. A procedure is
prescribed for allotment of the said flats. It is provided that the
remaining 50% flats will be allotted to the Applicants in ten categories
specified therein by the Hon'ble Chief Minister . Even out of such 50%
flats, 15 out of every 50 flats will be allotted purely at the discretion of
the Hon'ble the Chief Minister. As far as the flats in 2% quota are
concerned, the same will be allotted to the various categories of the
Applicants as decided by the Hon'ble Chief Minister. In case of 2%
quota, 50% flats will be allotted on the basis of the respective dates of
the Applications and remaining 50% will be allotted as provided in case
of flats in 5% quota. There is a further Government Resolution dated 6th
September 1999 which makes certain modifications in the earlier
policies. However, the modifications are of minor nature. In none of
the policies/Resolutions there is a requirement of giving a public notice
of the availability of flats and for inviting applications for allotment.
8. Lastly, it will be necessary to make a reference to the
impugned Government Resolution dated 30th November 2011. It will
be necessary to make a reference to the Clause (a) of the Resolution
which reads thus:
“(a) Guideline Principles for allotment of the
tenements
(i) Out of total number of tenements made
available for allotment under discretionary
quota in (5% and 2%) in one calender year,
50% of the tenements shall be reserved for
allotment of such tenements to the employees
of Government and SemiGovernment
offices,
Public Undertakings, Corporations etc for
allotting them as service quarters. In respect
of SemiGovernment
Institutions priority for
allotment of tenements shall be given to the
employees of local municipal Corporations,
police housing, fire brigade and electricity
distribution institutions etc.
(ii) The remaining 50% tenements under the
discretionary quota shall be allotted to the
eligible persons of various categories by the
Hon'ble Chief Minister.”
(Underline added )
9. Clause (c) provides for procedure for allotment in different
categories. Clause (c) reads thus:
“(c) Procedure for allotment of tenements under
discretionary quota to the applicants of different
categories
It is necessary that the applicant applying for allotment
of 5% and 2% tenement under the Government
discretionary quota should one be from any of the
following categories. The categories specified are as
follows:
Serial
No.
Name of the Category Category
No.
1. Family member of Martyrs of Defense
and Police personnel who died while
discharging his/her duties
1.1
2. Sitting/ExMembers
of Parliament
from Maharashtra, Sitting/ExMembers
of the Legislative or family
members of the member of
legislature who had died during his
term as legislator
1.2
3. Recipient of Best Journalism Award
of State Government or accredited
Journalist
1.3
4. Sportsperson who has received
Padma award or at least one medal in
the Olympic Games or Common
Wealth Games or Asian Games
1.4
5. Scientist who has received at least
one award from any of the following
awards Padma award/Bhatnagar
award/Maharashtra Bhushan award.
1.5
10. SubClause(
i) of Clause (d) provides that there is no
income limit for the above categories of persons who are eligible to
apply for allocation of tenements under the discretionary quota.
Clause (e) deals with the waiting list, which reads thus:
“(e) Waiting List:
The waiting list maintained under 5% discretionary
quota of the applicants under all Urban
Agglomeration is hereby cancelled. However
applicants mentioned in the said waiting list are at
liberty to make fresh applications. Henceforth, the
tenements shall b allotted to various categories of
the persons as mentioned in (C ) above. While
making such allotments applications received in one
calender year will be considered. However, if
allotment of tenement could not be made to the
applicants at the end of the year such applications
shall be deemed to be rejected and Government
shall not entertain any correspondence with such
applicants. However, the applicants whose
applications have been deemed to be rejected, shall
be at liberty to make fresh application in the next
calender year as per the above specified categories
of persons.”
11. The important features of all the Government Resolutions
which provide for allotment of flats in 2% and 5% discretionary quota
are as under:
(i) As far as flats in 5% quota is concerned, the same
are situated in various Urban Agglomerations in the
State. As far as flats in 2% quota are concerned, the
same are available in various Cities within the
jurisdiction of Boards constituted under Section 18
of the MHADA Act. Thus, the flats are available in
the prominent cities like Mumbai, Pune, Thane,
Nagpur etc.
(ii) There is no provision for giving any public notice to
the members of the public informing them that the
flats are available for allotments under 5% and 2%
quota. There is no provision for informing the public
as to how many flats are available in each
Agglomeration. There is no provision for
maintaining and displaying an exhaustive list of the
details of the available flats after periodical
intervals;
(iii) There is no provision for giving a public notice for
inviting applications for allotment of flats which are
as available under 10% and 2% quota;
(iv) In case of 2% quota, there is some provision for
display of a notice only in the offices of MHADA.
But no provision is made made for giving a public
notice for inviting applications;
(v) Thus, the members of the public who are eligible
under the policy are not at all put to notice that the
flats are available with the State Government for
allotment under 5% and 2% quota;
(vi) Hence, only those who know about the
discretionary quota apply for allotment to the State
Government;
(vii) The flats are allotted against both the quotas at a
price which is less than the prevailing market price;
(viii) Out of the flats available for allotment to the
members of the public, 50% are allotted on the
basis of the “first come first serve” principle. The
remaining 50% flats are allotted at the discretion of
the Hon'ble Chief Minister. The Hon'ble Chief
Minister decides whether there is a dire need to an
individual Applicant. There is no criteria laid down
for determining what is the dire need. Even in this
50% , in case of 15 flats out of every 50, the Hon'ble
Chief Minister has absolute discretion as far as the
allotment is concerned;
(xi) Though various categories such as legal
representatives of the historical personalities,
freedom fighters, Members of Legislature etc. are
provided, the percentage of the available flats to be
allotted to each category has not been fixed.
Moreover, interse
priority has not been fixed.
LEGAL POSITION AND FINDINGS ON FACTUAL ASPECTS
12. At this stage, it will be necessary to make a reference to the
decision of the Apex Court in the case of Akhil Bhartiya Upbhokta
Congress v. State of Madhya Pradesh and Others1. Paragraphs 65 to 67
of the said decision reads thus:
“65. 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 nondiscriminatory
and 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
licence, etc. by the State and its
agencies/instrumentalities should
always be done in a fair and equitable
manner and the element of favouritism or
nepotism shall not influence the exercise of
discretion, if any, conferred upon the
particular functionary or officer of the State.
66. 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
dehors an invitation or advertisement by
the State or its agency/instrumentality.
By entertaining 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
1 (2011)5 SCC 29
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 favouritism
and/or nepotism violating the soul of the
equality clause embodied in Article 14 of the
Constitution.
67. 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
similarly 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.”
(emphasis added)
13. We may also make a useful reference to the decision of the
Apex Court in the case of Meerut Development Authority v. Association of
Management Studies2 and in particular Paragraph 28 thereof, which
reads as under :
“28. It is so well settled in law and needs no
restatement at our hands that disposal of the
2 (2009)6 SCC 171
public property by the State or its
instrumentalities partakes the character of a
trust. The methods to be adopted for disposal
of public property must be fair and
transparent providing an opportunity to all
the interested persons to participate in the
process.”
(emphasis added)
14. In Paragraph 40 of the said case, Sachidanand Pandey v.
State of West Bengal3 the Apex Court held thus:
“40. On a consideration of the relevant cases
cited at the Bar the following propositions may
be taken as well established: State-owned or
public-owned property is not to be dealt with at
the absolute discretion of the executive. Certain
precepts and principles have to be observed.
Public interest is the paramount consideration.
One of the methods of securing the public
interest, when it is considered necessary to
dispose of a property, is to sell the property by
public auction or by inviting tenders. Though that
is the ordinary rule, it is not an invariable rule.
There may be situations where there are
compelling reasons necessitating departure from
the rule but then the reasons for the departure
must be rational and should not be suggestive of
discrimination. Appearance of public justice is as
important as doing justice. Nothing should be
done which gives an appearance of bias, jobbery
or nepotism.”
15. In the case of Humanity and Another v. State of West Bengal
and Others4, in Paragraph 23, the Apex Court held thus:
“23. It has been repeatedly held by this Court
that in the matter of granting largesse, the
Government has to act fairly and without
even any semblance of discrimination. Law on
this subject has been very clearly laid down by
3 (1987)2 SCC 29
4 (2011)6 SCC 125
this Court in Ramana Dayaram Shetty v.
International Airport Authority of India1. A three-
Judge Bench in the said decision has recognised
that the Government, in a welfare State, is in a
position of distributing largesse in a large
measure and in doing so the Government
cannot act at its pleasure. This Court perusing
the new jurisprudential theory of Professor Reich
in his article on “The New Property” accepted
the following dictum contained therein: (SCC p.
505, para 11)
“11. … That Government action be based on
standards that are not arbitrary or unauthorised.”
(emphasis added)
16. In case of alienation or allotment of natural resources, the
Apex Court in the case of Natural Resources Allocation, In Re, Special
Reference No.1 of 20125 held that the allocation has to be made by a
method which is fair and transparent. It was held that though a public
auction is more preferable method, that is not only the method
available for fair and transparent allocations.
17. Thus, the principles which emerge from various decisions
of the Apex Court can be summarized as under:
(a) A property vesting in the State can be disposed of
only on the basis of a fair and transparent policy;
(b) The methods to be adopted for disposal of the
public properties must be fair and transparent
5 (2012)10 SCC 1
providing a fair opportunity to all the
eligible/interested persons to participate in the
process;
(c) A policy of providing for allotment of the State
owned properties on the basis of the Applications
made by the individuals without a public
advertisement or invitation by the State cannot be a
rational policy. It cannot be a fair and trasparent
method;
(d) Allotment of the properties vesting in the
Government cannot be treated as a private venture;
(e) While distributing the property vesting in the State,
the Government cannot act at its pleasure;
(f) In such matters, the Government must act without
even a semblance of discrimination.
CONCLUSIONS:
18. Now coming to the Government Resolutions on the basis of
which an allotment of flats in 5% and 2% quota is made, there is no
procedure for issuing advertisement for inviting applications. There is
no procedure for advertising that a particular numbers of flats in a
particular city are available for allotment. Thus, the policy which is
reflected from all the Government Resolutions provides for allotments
of flats on the basis of the applications which are made without
invitation and without publishing any advertisement. Such a policy does
not give fair opportunity to all eligible/interested persons to apply.
Such a policy is discriminatory which is in breach of Article 14 of the
constitution of India. Moreover, as observed earlier, the allotment is at
the discretion of the Hon'ble Chief Minister. The question whether
there is a dire need of allotment of the premises is left to the absolute
discretion of the Hon'ble Chief Minister. All this is being done for
granting flats vesting in the state at a concessional price.
19. No detailed reasons are required to be recorded for coming
to the conclusion that not only that the procedure adopted by the State
is not fair and transparent but the procedure adopted by the State is
arbitrary. We are constrained to observe that the method of allotment
adopted by the State Government shows that the State Government is
treating the whole process as a private venture.
20. As far as the discretion vesting in the Hon'ble Chief
Minister is concerned, it is true that in the facts of these cases there is
no grievance made about the exercise of powers by the Hon'ble Chief
Minister. However, we are testing the method adopted by the State on
the touchstone of fairness. Hence, we cannot resist the temptation of
making a reference to a decision of the Apex Court in the case of Delhi
Transport Corporation v. D.T.C. Mazdoor Congress and Others6. We are
referring to the judgment of Hon'ble Shri Justice P.B. Sawant, J ( as he
then was). We must refer to what is observed by the Apex Court in
Paragraph 230, which reads thus:“
230. There is need to minimise the scope of the
arbitrary use of power in all walks of life. It is
inadvisable to depend on the good sense of the
individuals, however high-placed they may be. It
is all the more improper and undesirable to
expose the precious rights like the rights of life,
liberty and property to the vagaries of the
individual whims and fancies. It is trite to say
that individuals are not and do not become
wise because they occupy high seats of
power, and good sense, circumspection and
fairness does not go with the posts,
however high they may be. There is only a
complacent presumption that those who
occupy high posts have a high sense of
responsibility. The presumption is neither legal
nor rational. History does not support it and
reality does not warrant it. In particular, in a
society pledged to uphold the rule of law, it
would be both unwise and impolitic to leave
any aspect of its life to be governed by
discretion when it can conveniently and
easily be covered by the rule of law.”
(emphasis added)
6 1991 SUP (1) SCC 600
21. As we have observed earlier, in case of 15 out of every 50
flats available, there is absolute discretion vesting with the Hon'ble
Chief Minister. A policy giving such an absolute discretion to the
Hon'ble Chief Minister, in our opinion, makes the policy vulnerable and
arbitrary which is hit by Article 14 of the Constitution of India. This is a
separate and independent reason which we have recorded apart from
our finding that the method is not fair and transparent.
22. We must note here that during the course of hearing, the
learned Government Pleader has placed on record a letter dated 28th
February 2014 addressed to him by the State Government which
records that the State Government proposes to make necessary
amendments to the impugned Government Resolution dated 30th
November 2011 with a view to make the process fair and transparent.
The letter records the proposed modifications and states that the State
Government will make modifications provided the Court approves the
same. Suffice it to say that all policies of the State Government in
relation to the allotment of flats in 5% and 2% quota including the
impugned Government Resolution dated 30th November 2011 are
arbitrary and illegal. It is for the State Government to provide for a
fair and transparent procedure as per the law of the land.
::: Downloaded on - 22/05/2014 16:31:54 :::
Bombay High Court
ash 33 wp-882.11-group
23. In case of all the Petitioners, they are relying upon the
letters written either by the State Government or by the Additional
Collector holding them eligible for allotment of flats either in 5% or 2%
quota. Some of them have been a part of the waiting lists. Even
assuming that there are allotments made to the Petitioners, the
allotments are made on the basis of the policy which is not at all fair
and transparent. The Petitioners are beneficiaries of the policies of the
State Government which are arbitrary and hit by the Article 14 of the
Constitution of India. Such Petitioners cannot claim any right on the
basis of the alleged allotments. It is well settled that the concept of
legitimate expectation has no role to play where the State action is as a
public policy5. Therefore, the plea of legitimate expectation will have to
be rejected. None of the Petitioners have made out a case that the
public advertisements were published on the basis of which they made
applications for allotment of flats. Some of them have come out with
the case that their applications were recommended by the politicians.
Hence, no relief can be granted to the Petitioners on the basis of the so
called letters of allotment issued to them.
24. The contention of the Petitioners that the waiting lists
could not have been scrapped has again no merit inasmuch as the
waiting lists have been prepared by following a peculiar procedure
which is not at all fair and transparent.
5 Sethi Auto Service Station and Anr. v. Delhi Development Authority & Ors. (2009)1 SCC 180
::: Downloaded on - 22/05/2014 16:31:54 :::
Bombay High Court
ash 34 wp-882.11-group
25. In some of the Petitions, there is a challenge to the
impugned Government Resolution dated 30th November 2011. There is
also a challenge to the Government Resolutions dated 27th February
2007 and 9th September 2010. Even these Resolutions do not provide
for a lawful method. We have held that the Government Resolutions
are completely illegal on the grounds which we have set out earlier. It
is, therefore, obvious that no allotments can be made on the basis of the
Government Resolutions dealing with 2% or 5% quota and in particular
the impugned Government Resolutions dated 30th November 2011.
Hence, we propose to restrain the State Government from making any
allotments hereafter as per the Resolutions. We are not dealing with the
allotments which have been given effect by placing the persons in
possession of the flats allotted. It is always open for the State
Government to come out with a fair and transparent policy for
allotment of the flats vesting in the State Government. We have a
serious doubt whether the flats vesting in the State Government could
be allotted at the concessional rate without fixing any income criteria.
However, it is for the State Government to decide. We must clarify that
the restraint order will not apply to allocation of the flats as service
quarters to the employees of the State Government or the employees of
the State controlled Corporations/public sector undertakings.
::: Downloaded on - 22/05/2014 16:31:54 :::
Bombay High Court
ash 35 wp-882.11-group
26. Hence, we dispose of the Petition by passing the following
order:
ORDER :
(a) The prayers made by the Petitioners for allotment of
flats stand rejected;
(b) We declare that the impugned Government
Resolution dated 30th November 2011 (which
supersedes all earlier Government Resolutions on
the subject) is arbitrary, irrational and illegal. The
State Government is hereby restrained from making
any further allotments on the basis of the impugned
Government Resolution dated 30th November 2011.
We clarify that this restraint will not apply to
allotment of the flats as service quarters as observed
in Paragraph 25 above;
(c) We make it clear that it will be open for the State
Government to come out with a fair and transparent
policy for allotment of flats under 5% and 2%
quota;
::: Downloaded on - 22/05/2014 16:31:54 :::
Bombay High Court
ash 36 wp-882.11-group
(d) The Petitions are disposed of on above terms.
(e) Civil Application No.1157 of 2010 in Writ Petition
No.1697 of 2010 and Civil Application No.211 of
2011 and Civil Application No.3009 of 2013 in Writ
Petition No.937 of 2011 do not survive and the
same is disposed of.
(M. S. SONAK, J) ( A.S. OKA, J )
::: Downloaded on - 22/05/2014 16:31:54 :::
No comments:
Post a Comment