Disposed

Chandrabhan Sukhadeo Sangle v. Urban Development Department of State of Maharashtra and Ors.

Bombay HC20 Mar 2014WP/882/2011

Case brief

AI extract

What is this about?

Discretionary housing quota applicants sought flats and challenged revised allotment policies. The Court rejected their allotment claims, declared the impugned Government Resolution arbitrary, irrational and illegal, and restrained further allotments under it, except service quarters. It permitted a fresh, fair and transparent policy.

What did the court decide?

Impugned Government Resolution declared arbitrary, irrational and illegal; further allotments under it restrained, except allotments as service quarters.

Chandrabhan Sukhadeo Sangle Vs Urban… — Constitutional and Fundamental Rights | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.882 OF 2011

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Mr.Chandrabhan Sukhadeo Sangle. .. Petitioner Vs Urban Development Department and Others. .. Respondents –

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Shri Sandesh D. Patil for the Petitioner.

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Shri S.K. Shinde, Government Pleader along with Mrs. M.P. Thakur, AGP for the Respondents.

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WRIT PETITION NO.883 OF 2012

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Shri Rahiman Rasul Shaikh. .. Petitioner Vs The Additional Collector and Competent Authority (Urban Land Ceiling Act) for Greater Mumbai and Others. .. Respondents

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Shri Raj Yamgar for the Petitioner. Shri S.K. Shinde, Government Pleader along with Mrs. M.P. Thakur, AGP for the Respondents.

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WRIT PETITION NO.1228 OF 2011

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Shri Ramesh Vithal Karande. .. Petitioner Vs The State of Maharashtra and Others. .. Respondents

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Shri Abhay L. Patki for the Petitioner.

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Shri S.K. Shinde, Government Pleader along with Mrs. M.P. Thakur, AGP for the Respondents.

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WRIT PETITION NO.1500 OF 2010

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Mr. Manohar Shankar Bait. Vs	..	Petitioner
The Chief Minister of State of Maharashtra
and Others.	..	Respondents

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Shri Uday P. Warunjikar for the Petitioner. Shri S.K. Shinde, Government Pleader along with Mrs. M.P. Thakur, AGP for the Respondents.

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WRIT PETITION NO.1697 OF 2010

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Mr. Shivaji Babu Kamble. .. Petitioner Vs The Chief Minister of State of Maharashtra and Others. .. Respondents –

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Shri Uday P. Warunjikar for the Petitioner. Shri S.K. Shinde, Government Pleader along with Mrs. M.P. Thakur, AGP for the Respondents.

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WRIT PETITION NO.7212 OF 2013

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Dr. Sou. Deepa Sudhir Karlekar nee Vasanti Yeshwant Ranade .. Petitioner Vs The Chief Minister, the State of Maharashtra and Others. .. Respondents

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Shri Akshay Shinde i/by Shri A.M.Kulkarni for the Petitioner. Shri S.K. Shinde, Government Pleader along with Mrs. M.P. Thakur, AGP for the Respondents.

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WRIT PETITION NO.7729 OF 2011

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Mr. Prakash Dattaram Dalvi. .. Petitioner Vs The Chief Minister, the State of Maharashtra and Others. .. Respondents

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Shri Nitesh Bhutekar for the Petitioner.

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Shri S.K. Shinde, Government Pleader along with Mrs. M.P. Thakur, AGP for the Respondents.

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WRIT PETITION NO.10098 OF 2011

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Shri Pandurang Tukaram Patil. .. Petitioner Vs The Chief Minister, the State of Maharashtra and Others. .. Respondents

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Shri Manoj Shirsat i/by Shri Nitin B. Patil for the Petitioner. Shri S.K. Shinde, Government Pleader along with Mrs. M.P. Thakur, AGP for the Respondents.

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WRIT PETITION NO.937 OF 2011

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Sahebrao Shankarrao Ranpise.	.. Petitioner
Vs
The State of Maharashtra and Another.	.. Respondents

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None for the Petitioner.

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Shri S.K. Shinde, Government Pleader along with Mrs. M.P. Thakur, AGP for the Respondents.

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WRIT PETITION NO.4110 OF 2010

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Shri Sahebrao S/o. Shankarrao Ranpise.	.. Petitioner
Vs
The State of Maharashtra and Another.	.. Respondents

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None for the Petitioner.

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Shri S.K. Shinde, Government Pleader along with Mrs. M.P. Thakur, AGP for the Respondents.

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WRIT PETITION NO.4117 OF 2013

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Satyavan Shivram Juvekar. .. Petitioner Vs The State of Maharashtra and Others. .. Respondents

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Shri Tushar Pimple i/by Shri P.D. Dalvi for the Petitioner. Shri S.K. Shinde, Government Pleader along with Mrs. M.P. Thakur, AGP for the Respondents.

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CORAM : A.S. OKA & M.S. SONAK, JJ

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DATE ON WHICH SUBMISSIONS WERE HEARD : 28th FEBRUARY 2014 DATE ON WHICH JUDGMENT IS PRONOUNCED: 20th MARCH 2014

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JUDGMENT ( PER A.S. OKA, J )

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BASIC FACTS :

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The Petitioners in these Writ Petitions are claiming that they were allotted self-contained residential flats by the State Government from the discretionary quota available to the Hon'ble Chief Minister of the State of Maharashtra.

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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.

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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”.

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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 18^th August 1984 onwards. Lastly, a Government Resolution was issued on 30^th November 2011 providing for allotment of flats in the discretionary quota of 5% and 2%. The said Government Resolution dated 30^th 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.

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FACTS OF INDIVIDUAL CASES

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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.

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(A) WRIT PETITION NO.882 OF 2011

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The Petitioner claims that under the letter of allotment dated 15^th May 1989, the State Government held him

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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 12^th 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.

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(B) WRIT PETITION NO.883 OF 2012

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The Petitioner claims that under the letter dated 24^th 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 18^th August 1998 which records that the name of the Petitioner figures at Sr.

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No.4331 in the waiting list. Reliance is placed on the letter dated 19^th 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.

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The Petitioner is a Class-IV employee working in the office of the Government Pleader, High Court (Original Side), Mumbai. He claims that on 3^rd 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 31^st 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

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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 20^th 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.

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(D) WRIT PETITION NO.1500 of 2010

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The Petitioner in this Petition has relied upon a letter dated 19^th 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.

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(E) WRIT PETITION NO.1697 OF 2010

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The Petitioner is relying upon the letter dated 11^th 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 30^th November 2011.

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(F) WRIT PETITION NO.7212 OF 2013

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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 2^nd 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”.

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The Petitioner is also relying upon a letter dated 7^th 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.

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(G) WRIT PETITION NO.7729 OF 2011

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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 13^th 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.

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(H) WRIT PETITION NO.10098 OF 2011

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On the basis of the Application made by the Petitioner, the Desk Officer of the State Government by a letter dated 30^th 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 31^st 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.

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(I)

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WRIT PETITION NO.937 OF 2011

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In this case, the Petitioner applied for allotment of a flat in 2% quota. On 7^th March 1990, the Housing and Special Assistance Department of the State government informed

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the Petitioner that he is eligible for allotment of a flat in the said quota. Accordingly, Shri Eknath Gaikwad, a Member of Parliament on 2^nd 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 23^rd 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 9^th 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

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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.

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(J)

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WRIT PETITION NO.4110 OF 2011

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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 7^th 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.

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(K)

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WRIT PETITION NO.4117 OF 2013

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The Petitioner applied for allotment of a flat against 10% quota. By a letter dated 2^nd August 1989, the Additional Collector, Mumbai informed the Petitioner that he has been held eligible for allotment. The Petitioner made a

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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.

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SUBMISSIONS

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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

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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 28^th February 2014, the State Government has informed him that there is a proposal to modify the impugned Government Resolution dated 30^th November 2011 for providing for a fair and transparent procedure for allotment of flats in the 2% and 5% quota.

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CONSIDERATION OF SUBMISSIONS

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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 14^th 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 14^th July 1986 was modified from time to time by various Government Resolutions. On 30^th September 1997, the State Government issued a booklet containing the policy decision of the State Government as regards the allotment of

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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 14^th July 1986. The 10^th 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”.

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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

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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 6^th 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.

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Lastly, it will be necessary to make a reference to the impugned Government Resolution dated 30^th November 2011. It will be necessary to make a reference to the Clause (a) of the Resolution which reads thus:

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“(a) Guideline Principles for allotment of the tenements

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(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 Semi-Government offices, Public Undertakings, Corporations etc for allotting them as service quarters. In respect of Semi-Government Institutions priority for allotment of tenements shall be given to the employees of local municipal Corporations,

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police housing, fire brigade and electricity distribution institutions etc.

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(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.”

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(Underline added )

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Clause (c) provides for procedure for allotment in different categories. Clause (c) reads thus:

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“(c) Procedure for allotment of tenements under discretionary quota to the applicants of different categories

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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:

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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/Ex-Members of Parliament from Maharashtra, Sitting/Ex- Members of the Legislative or family members of the member of legislature who had died during his term as legislator	1.2

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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

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Sub-Clause(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:

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“(e) Waiting List:

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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.”

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The important features of all the Government Resolutions which provide for allotment of flats in 2% and 5% discretionary quota are as under:

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(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.

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(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;

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(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;

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(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;

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(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;

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(vi) Hence, only those who know about the discretionary quota apply for allotment to the State Government;

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(vii) The flats are allotted against both the quotas at a price which is less than the prevailing market price;

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(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;

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(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, inter-se priority has not been fixed.

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LEGAL POSITION AND FINDINGS ON FACTUAL ASPECTS

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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

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Congress v. State of Madhya Pradesh and Others¹ . Paragraphs 65 to 67

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of the said decision reads thus:

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“ 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.

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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

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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.

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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.”

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(emphasis added)

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We may also make a useful reference to the decision of the

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Apex Court in the case of Meerut Development Authority v. Association of Management Studies² and in particular Paragraph 28 thereof, which reads as under :

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“ 28. It is so well settled in law and needs no restatement at our hands that disposal of the

2 (2009)6 SCC 171

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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 .”

¶201

(emphasis added)

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In Paragraph 40 of the said case, Sachidanand Pandey v.

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State of West Bengal³ the Apex Court held thus:

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“ 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.”

¶205

In the case of Humanity and Another v. State of West Bengal

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and Others⁴ , in Paragraph 23, the Apex Court held thus:

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“ 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

¶208

3 (1987)2 SCC 29 4 (2011)6 SCC 125

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this Court in Ramana Dayaram Shetty v. International Airport Authority of India¹ . A threeJudge 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)

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“ 11 . … That Government action be based on standards that are not arbitrary or unauthorised.”

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(emphasis added)

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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.

¶216

Thus, the principles which emerge from various decisions

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of the Apex Court can be summarized as under:

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(a) A property vesting in the State can be disposed of only on the basis of a fair and transparent policy;

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(b) The methods to be adopted for disposal of the public properties must be fair and transparent

5 (2012)10 SCC 1

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providing a fair opportunity to all the eligible/interested persons to participate in the process;

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(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;

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(d) Allotment of the properties vesting in the Government cannot be treated as a private venture;

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(e) While distributing the property vesting in the State, the Government cannot act at its pleasure;

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(f) In such matters, the Government must act without even a semblance of discrimination.

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CONCLUSIONS:

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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

¶230

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¶231

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¶232

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.

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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.

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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

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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:-

¶239

“ 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 .”

¶240

(emphasis added)

¶241

6 1991 SUP (1) SCC 600

¶242

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¶243

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.

¶244

We must note here that during the course of hearing, the learned Government Pleader has placed on record a letter dated 28^th 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 30^th 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 30^th 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.

¶245

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¶246

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.

¶247

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.

¶248

5 Sethi Auto Service Station and Anr. v. Delhi Development Authority & Ors. (2009)1 SCC 180

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In some of the Petitions, there is a challenge to the impugned Government Resolution dated 30^th November 2011. There is also a challenge to the Government Resolutions dated 27^th February 2007 and 9^th 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 30^th 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.

¶253

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¶255

Hence, we dispose of the Petition by passing the following

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order:

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ORDER :

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(a) The prayers made by the Petitioners for allotment of flats stand rejected;

¶259

(b) We declare that the impugned Government Resolution dated 30^th 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 30^th November 2011. We clarify that this restraint will not apply to allotment of the flats as service quarters as observed in Paragraph 25 above;

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(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;

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(d) The Petitions are disposed of on above terms.

¶265

(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.

Chandrabhan Sukhadeo Sangle v. Urban Development Department of State of Maharashtra and Ors.

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Chandrabhan Sukhadeo Sangle v. Urban Development Department of State of Maharashtra and Ors.

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