JUDGMENT
1. This Writ Petition is filed in the nature of probono publico by a practising Advocate of this Court. Government of Andhra Pradesh – 1st respondent herein – issued G.O.Ms.Nos. 455 and 456, Revenue (UC.I) Department, dated 29-7-2002 wherein taking into account all the ground realities, practical aspects of the problem and the difficulties encountered in the strict enforcement of the law and also bearing in mind the fact that the Urban Land (Ceiling and Regulation) Act, 1976 (for short ‘the Act’) is an expropriatory law, decided to allot the excess lands to such third parties in occupation, under Section 23 of the Act, subject to certain conditions. These Governmental Orders are challenged in this Writ Petition on the ground that the same are not only contrary to the provisions of the Act, but also against the public policy.
2. According to the petitioner, as per Section 23 of the Act, the excess vacant land shall be disposed of by the State Government to subserve the common good on such terms and conditions as it may deem fit to impose. Further, under Section 5(3) of the Act, certain transactions are declared as illegal and void, but the same are overlooked and the excess vacant land is being exempted or allotted by collecting the market value. The impugned G.O.Ms.No. 456, dt. 29-7-2002 says at para-4 that in Hyderabad Urban Agglomeration the area permitted to be retained is 3,000 square metres, in Vijayawada and Visakhapatnam 4,500 sq. metres and in Guntur and Warangal 6,000 sq. metres. This extent of land is over and above the ceiling limit and as a matter of policy, the exemption is sought to be given under Section 20(1)(a) of the Act. Further, the amount fixed for such retention is as per the rates per square metre mentioned in the Schedule. The 1st respondent has no power to grant exemption to all the persons at a time. It can be done only in some cases and that too in public interest. The blanket exemption given under the impugned G.Os. is defeating the very purpose of the enactment. The State Government on one hand cannot withhold repealing of the Act and on the other hand, cannot act contrary to the provisions of the Act. Wherever the surplus land is taken over by the Government and utilized, the owner of the land should be paid the amount that is being collected from the persons, who are holding the surplus land illegally. Earlier G.O.Ms.No. 136 issued in the year 1981 was as per the guidelines framed by the Central Government and some concessions were given pursuant to the policy of the Central Government. But, now under the impugned G.Os the State Government is seeking to utilize the provisions of the Act for commercial and profiteering purposes, which is not permissible under the Act. Once land is vested with the Government under Section 10(3) of the Act, the provisions under Section 24 come into play and the Government cannot dispose of the same as it likes. Section 24 of the Act prescribes a procedure for disposal of the vacant lands and under Sub-section (2) thereof, the amount that is to be collected from a person to whom surplus land is assigned or allotted can be an amount equal to the amount, which is paid by the State Government for acquisition of the surplus land. Thus, the action of the State Government in fixing the amount in the Schedule to the G.Os., which is upto a maximum sum of Rs. 3,600/- per square metre is impermissible under law since no such amount was paid by the Government to the land owner. The impugned G.Os. are not only contrary to the provisions of the Act as narrated above, but also against the objects of the Act and, therefore, the same are liable to be struck down.
3. Government of Andhra Pradesh represented by its Principal Secretary, Revenue Department had filed a detailed counter-affidavit denying all the allegations made by the petitioner. It is stated that impugned G.Os. are policy decisions issued by the State to serve its real interests and no Writ Petition is maintainable against a policy decision of the Government unless it is unconstitutional. The spirit of Section 23 of the Act is to subserve the common good. The Government has full discretion to determine how common good should be served. The said provision is in reality an enabling provision and should be given a liberal interpretation. It is not intended to restrict the State Government’s powers to dispose of its property. In any case, the restrictions, if any, should be regarded as directory and not mandatory. The present policy directives do not conflict with Section 23 or the decision of the apex Court in Bhim Singhji v. Union of India, , which was relied upon by the petitioner. However, it was not disputed that some extents of land, which have been declared as surplus, are not in the effective possession of the Government due to variety of reasons. Number of alienations have occurred over the years and number of people have innocently purchased land, which was subsequently declared surplus. The State is also involved in a fairly large amount of litigation in regard to claims under the Act as also the general civil law involving disputes regarding title to the property declared as surplus. These policy decisions, which are now under challenge are inter alia intended to settle the controversies in a manner, which would subserve the common good. The Government in its counter filed before the Supreme Court mentioned its intention to regularize on the terms indicated therein. These observations of the Court inter alia have been considered while formulating the policy reflected in the impugned G.Os. The orders issued to regularize the structures that have come up on surplus land vested in Government and the payments as set out in the said order and the amounts realized in the process of regularization would serve the interests of Weaker Sections Housing etc. It cannot be said that the said policy decisions do not subserve the common good. There is no principle in law that the Government should not take a policy decision to mitigate the hardship, which may flow from strict enforcement of legal provisions. In fact, the parameters in the impugned orders do not alter the statutory ceiling fixed under the Act. The power of exemption, be it noted, is couched in comprehensive terms and authorizes the Government to issue orders contemplated in the impugned G.Os. When the Government can totally exempt the lands from the operation of the statute, it stands to reason that they can grant relaxations or exemptions to a lesser degree controlled by appropriate conditions. Nobody has found fault with the earlier order-G.O.Ms.No. 733, Revenue Department, dated 31-10-1988 exempting surplus lands in peripheral areas upto a limit of Acs.5.00 per person. A person’s entitlement to hold vacant land in excess of the ceiling limit in territories to which the Act applies is regulated by the terms of the statute itself. Petitioner seeks to canvas the case of the surplus landholders, who have surrendered their land for being paid extra compensation. This analogy is inappropriate. The situation, which is sought to be corrected in some equitable fashion, through these policy decisions, has partly been caused by these very surplus landholders selling portions of their surplus land to innocent purchasers. They are part of the problem. The allegation that Government is seeking to utilize the provisions of the Act for commercial and profiteering purposes is uncharitable and baseless. The amounts now required to be paid are relatively modest and bear no relation to the current market value of the property. The present policy is a general policy. The impugned G.Os are valid pronouncements of State policy, which do not violate any provisions of law or the objects of the Act or the Constitution of India.
4. Respondent No. 3 – HMT Officers’ Cooperative House Building Society Limited, Hyderabad, which got itself impleaded as a party respondent in the Writ Petition, has filed a counter-affidavit denying the allegations made by the petitioner. It is stated that the society was registered under the A.P. Co-operative Societies Act, 1964 on 24-2-1982 with an object to provide house plots for construction of houses for HMT employees. The society entered into an agreement with the owners of land in Sy.Nos.588 and 591 for sale of Acs.25.00 of land to it vide agreements dated 20-3-1982 and 18-11-1983. The owners of the land were paid through various cheques and Demand drafts an amount of Rs. 23.20 lakhs between 20-3-1982 to 8-11-1983. The land owners have obtained final lay Out permission No. 3609/MPU/HUDA/81 from Hyderabad Urban Development Authority on 10-1-1984. The land is earmarked as ‘residential area’ in the Master Plan as per HUDA letter No. 1445/MPU/HUDA/83, dated 17-2-1983. Further, HUDA also indicated that it had no proposal to acquire this land vide their letter No. B2/2308/83, dated 3-8-1983. The society and vendors, in terms of G.O.Ms.No. 136, Revenue, dated 28-1-1981 submitted applications seeking exemption under Section 20(1) of the Act strictly adhering to all the requirements contained in the said G.O. The State Government was pleased to consider their cases under G.O.Ms.No. 964 and directed the Convener to allot plots to the members of the society through Govt. Memo No. 82/ UCIII/85-2, dated 14-5-1984. The entire land of Acs.25.00 was developed as per the norms of HUDA and taken possession incurring huge amount of Rs. 23.20 lakhs from 1982. The land owners have executed irrevocable Power of Attorney in favour of the committee members of the society. Further, they have received the entire sale consideration of the respective plots from its members and in turn having paid the entire sale consideration to the land owners, the letters of allotment were issued to the individual members through GPA on 29-3-1992. The competent authority, ULC, Hyderabad recommended the case of the members of the society for exemption under Section 20(1)(a) of the Act on 18-9-1992 and 31-10-1992. Even in the revenue records, these Acs.25.00 was entered in the name of the society in 1994-95 itself. The society has been in possession of the land since 1982 and paid land revenue. The possession of the society was confirmed by Mandal Revenue Officer, Malkajgiri vide Proceedings dated 27-2-1997. In fact, the owner Sri B. Ramachandra Rao, who is also a GPA on behalf of his son B. Narasinga Rao gave an affidavit on 4-4-1984 before the concerned authority stating that he had received the full consideration from the purchasers (society), he has no claim whatsoever and he will not raise any dispute with the Government in this regard. After struggling for 20 years, the Government has issued G.O.Ms.No. 455, dated 29-7-2002 regularizing the possession of the members of the society. In fact, members of the society have already remitted the amounts between Rs. 10,000/- and 15,000/- per plot to the Government in pursuance to the impugned G.O. and subsequent to G.O.Ms.No. 1069, dated 7-12-2002. It is further stated that the Government has got ample power to issue impugned G.Os and issued the same after considering the matter in depth and having regard to the difficulties encountered in implementation of the Act. The impugned G.Os. are pragmatic and practical and issued to meet the exigencies of the situation.
5. Learned counsel for the petitioner had taken us through various provisions of the Act, i.e., Sections 5, 6, 20, 22 and 23 and submitted that a cumulative reading of these would clearly indicate that the impugned G.Os. are contrary to the provisions of the Act. He had also submitted that there is no common good in issuing the impugned G.Os. since they contemplate allotment of the excess land in favour of the persons, those who are illegally in possession of the property and/or those who are innocently purchased. Government has not exempted the individual cases. In fact, this is an extreme case where the entire land declared to be excess of a particular individual is sought to be regularized in the guise of subserving the common good. This is nothing but an illegal act. He had drawn our attention to the decision in Bhim Singhji’s case (1 supra) and submitted that if the decision to dispose of the excess vacant land does not satisfy the criterion of subserving the common good, it is liable to be struck down being contrary to the scheme and intendment of the Act and that the exemption granted under the impugned G.Os. is nothing but favouring a private association of individuals and does not subserve the common good.
6. Paragraph-4 of the said decision, which is relevant for our purpose, reads as under:
“Section 23 of the Act is in our opinion valid and does not suffer from any constitutional infirmity. The definition of the word ‘industry’ in CI. (b) of the Explanation to that section is undoubtedly unduly wide since it includes “any business, profession, trade, undertaking or manufacture”. If Sub-section (1) of Section 23 were to stand alone, no doubt could have arisen that the Urban Land Ceiling Act is a facade of a social welfare legislation and that its true, though concealed, purpose is to benefit favoured private individuals or associations of individuals. But the preponderating provision governing the disposal of excess vacant land acquired under the Act is the one contained in Sub-section (4) of Section 23 whereby, all vacant lands deemed to have been acquired by the State Government under the Act “shall be disposed of….. to subserve the common good”. The provisions of Subsection (4) are “subject to the provisions of Sub-sections (1), (2) and (3)’ but the provisions of Sub-section (1) are enabling and not compulsive and those of Sub-section (2) and (3) are incidental to the visions of Sub-section (1). The disposal of excess vacant lands must therefore be made strictly in accordance with the mandate of Subsection (4) of Section 23, subject to this, that in a given case such land may be allotted to any person, for any purpose relating to, or in connection with, any ‘industry’ or for the other purposes mentioned in Sub-section (1), provided that by such allotment, common good will be subserved. The governing test of disposal of excess land being ‘social good’, any disposal in any particular case or cases which does not subserve that purpose will be liable to be struck down as being contrary to the scheme and intendment of the Act. The Preamble to the Act ought to resolve interpretational doubts arising out of the defective drafting of Section 23. It shows that the Act was passed with the object of preventing concentration of urban land in the hands of a few persons and with a view to bringing about an equitable distribution of land in urban agglomerations to subserve the common good. ‘Common good’ being the writing on the wall, any disposal which does not serve that purpose will be outside the scope of the Act and therefore lacking in competence in diverse senses, Private property cannot under our Constitution be acquired or allotted for private purposes though an enabling power like that contained in Subsection (1) of Section 23 may be exercised in cases where the common good dictates the distribution of excess vacant land to an industry, as defined in CI.(b) of the Explanation to Section 23.”
7. Further, Krishna Iyer, J (as His Lordship then was) delivered a separate judgment in the said case, wherein it was observed as follows:
“I wholly agree with the perspective of my learned brother Sen, J. that Part IV which seeks to build a Social Justice Society, is basic to out constitutional order. Any transgression of Article 39(b) and (c) is beyond the scope of Section 23 (1) and disposal of land thereunder must subserve the common good and not the reverse. This limitation on the wide words of Section 23 (1) is a matter of semantics and reading down meanings of words with loose lexical amplitude is permissible as part of the judicial process. To sustain a law by interpretation is the rule. To be trigger-happy in shooting at sight every suspect law is judicial legicide. Courts can and must interpret words and read their meanings so that public good is promoted and power misuse is interdicted. As Lord Denning said: “A Judge should not be a servant of the words used. He should not be a mere mechanic in the powerhouse of semantics”. May Lord Denning live long, and his shadow never grow less” “Lawyer” October 1980 Silver Jubilee Issue p. 172.
………..
I have no doubt that even the crude drafting of Section 23 (4) by the unwanted ‘subject to’ will not whittle down the power, why, the obligation, to distribute vacant land, not according to personal, political or official fancy but strictly geared to the good set down in Article 39 (b) and (c).”
8. The said decision was followed in toto in Bhim Singhji v. Union of India, .
9. Learned Advocate General representing the Government argued that the impugned G.Os are nothing but an off-suit of the various factors considered by the Government, which are explicitly mentioned in them. The subserving of the common good has to be carved out from the situation encountered by the policy makers. There cannot be any straightjacket formula when the Act empowers the Government to dispose of the excess vacant land to subserve the common good on certain terms and conditions. The policy decision taken by the Government is perfectly in consonance with the objectives and the provisions of Section 23(4) of the Act. The Courts cannot interfere with the policy decision of the Government unless it is unconstitutional. In fact, in this case, no such plea was taken even. The main thrust of the petitioner seems to be advance the cause of the landlords. The tenor and temper of the language imported into the affidavit that instead of repelling the Act, the State Government entertained the applications and granted exemption in the guise of a policy, itself shows that the owner, who entered into the agreement with the society is behind this litigation. Learned Advocate General relied upon the decisions rendered in Tata Iron and Steel Company Limited v. Union of India, , in which it was held as follows:
“At his juncture, we think it fit to make a few observations about our general approach to the entire case. This is a case of the type where legal issues are intertwined with those involving determination of policy and a plethora of technical issues. In such a situation, courts of law have to be very way and must exercise their jurisdiction with circumspection for they must not transgress into the realm of policy making, unless the policy is inconsistent with the Constitution and the laws. In the present matter, in its impugned judgment, the High Court had directed the Central Government to set up a Committee to analyse the entire gamut of issues thrown up by the present controversy. The Central Government had consequently constituted a Committee comprising high level functionaries drawn from various Governmental/Institutional agencies who were equipped to deal with the entire range of technical and long term consideration involved. This committee, in reaching its decision, consulted a number of policy documents and approached the issue from a holistic perspective. We have sought to give our opinion on the legal issues that arise for our consideration. From the scheme of the Act it is clear that the Central Government is vested with discretion to determine the policy regarding the grant or renewal of leases. On matters affecting policy and those that require technical expertise, we have shown deference to, and followed the recommendations of, the ‘Committee which is more qualified to address these issues.”
10. Learned Advocate General further relied upon the decision of the apex Court in Krishnan Kakkanth v. Government of Kerala, in which it was held as follows:
“To ascertain unreasonableness and arbitrariness in the context of Article 14 of the Constitution, it is not necessary to enter upon any exercise for finding out the wisdom in the policy decision of the State Government. It is immaterial if a better or more comprehensive policy decision should have been taken. It is equally immaterial if it can be demonstrated that the policy decision is unwise and is likely to defeat the purpose for which such decision has been taken. Unless the policy decision is demonstrably capricious or arbitrary and not informed by any reason whatsoever or it suffers from the vice of discrimination or infringes any statute or provisions of the Constitution, the policy decision cannot be struck down. It should be borne in mind that except for the limited purpose of testing a public policy in the context of illegality and unconstitutionality, Court should avoid “embarking on uncharted ocean of public policy.”
11. Learned Advocate General further relied upon the decision in B. Prasad Rao v. Depot Manager, APSRTC, Kurnool, in which, a Division Bench of this Court relying upon various decisions of the Apex Court held that every policy decision cannot be allowed to be questioned in a proceeding under Article 226 of the Constitution of India.
12. For the purpose of the case on hand, examining Section 23 of the Act may be necessary. The said provision reads as under:
“23. Disposal of vacant land acquired under the Act:-
(1) It shall be competent for the State Government to allot, by order, in excess of the ceiling limit any vacant land which is deemed to have been acquired by the State Government under this Act or is acquired by the State Government under any other law, to any person for any purpose relating to, or in connection with, any industry or for providing residential accommodation of such type as may be approved by the State Government to the employees of any industry and it shall be lawful for such person to hold such land in excess of the ceiling limit.
Explanation:- For the purposes of this section-
(a) whether any land with a building has been acquired by the State Government under any other law and such building has been subsequently demolished by the State Government, then, such land shall be deemed to be vacant land acquired under such other law;
(b) ‘industry’ means any business, profession, trade, undertaking or manufacture.
(2) In making an order of allotment under Sub-section (1), the State Government may impose such conditions as may be specified therein including a condition as to the period within which the industry shall be put in operation or, as the case may be, the residential accommodation shall be provided for: Provided that if, on a representation made in this behalf by the allottee, the State Government is satisfied that the allottee could not put the industry in operation, or provide the residential accommodation, within the period specified in the order of allotment, for any good and sufficient reason, the State Government may extend such period to such further period or periods as it may deem fit.
(3) Where any condition imposed in an order of allotment is not complied with by the allottee, the State Government shall, after giving an opportunity to the allottee to be heard in the matter, cancel the allotment with effect from the date of the non-compliance of such condition and the land allotted shall revest in the State Government free from all encumbrances.
(4) Subject to the provisions of Subsections (1), (2) and (3), all vacant lands deemed to have been acquired by the State Government under this Act shall be disposed of by the State Government to subserve the common good on such terms and conditions as the State Government may deem fit to impose. (emphasis is ours).
(5) Notwithstanding anything contained in Sub-sections (1) to (4), where the State Government is satisfied that it is necessary to retain or reserve any vacant land, deemed to have been acquired by that Government under this Act, for the benefit, of the public, it shall be competent for the State Government to etain or reserve such land for the same.”
13. What all the above provision contemplates is that once a vacant land vests in the Government, the State Government shall dispose of the same to subserve the common good on such terms and conditions as it may deem fit and proper.
14. While issuing the impugned G.Os., the State Government has taken various factors into consideration, such as, public interest and when the possession of the excess land was taken over physically, either with structures or by demolishing structures raised thereon, a fresh round of litigation commenced. It is also stated in G.O.Ms.No. 455, dated 29-7-2002 that this Court has dealt with these aspects in detail in its Orders dated 3-2-1997 in Writ Petition No. 19344 of 1995. After taking into consideration the said Order and the ground realities, such as, dispossessing and demolishing a person, who had already came into possession or purchased in good faith or holding a small extent and the Government again instead of involving into second and third round of litigations has decided to evolve a policy under Section 23 of the Act and allotted excess land to the third parties, who are in occupation, subject to certain conditions.
15. From a close scrutiny of the Governmental Orders under challenge, it is seen that the State Government had taken various difficulties into consideration and took a policy decision to subserve the common good as contemplated under Section 23 (4) of the Act. Further, as seen from the above, the land under the impugned G.Os. has been in possession and enjoyment of the members of the 3rd respondent-society for more than two decades and the society has applied for exemption under Section 20(1) (a) of the Act as early as in 1981. HUDA has approved the plan. General Power of Attorney holder/of the landlord had allotted plots to each member and they are in possession. It is also stated that all the members of the society are senior citizens and parted with their monies to the owner and also paid amounts as fixed by the Government. Thus, looking from any angle, the policy decision taken by the Government purportedly to be under Section 23 (4) of the Act cannot be said to be arbitrary, illegal or contrary to the objects and provisions of the Act. In this context we are in total agreement with the argument of the learned Advocate General. The Government had taken the ground realities, such as, pendency of the application of a society of employees, who had parted with their money, HUDA has approved the plan, plots were allotted to them and the long litigation and further the guidelines of the Apex Court, into consideration and issued the impugned G.Os. allotting the excess lands to such respective third parties in occupation, subject to certain conditions, particularly, collecting some amounts towards the cost of the plots. The same can either be said to be illegal or arbitrary. In fact, the petitioner had no bona fides in approaching this Court as a public spirited person, since his whole grievance is that either the Act could have been repealed or no exemption could have been granted by the Government. The contention of the petitioner that wherever the surplus was taken over by the Government and utilized, the owner of the land should be paid the amount that is being collected from the persons who are holding the surplus land seems to be advancing the cause of the land owners and not the public cause. The petitioner could not satisfy this Court as to why the G.Os. are not in tune with the provisions of the Act and its objectives. The petitioner also failed to explain as to how the policy decision taken by the Government does not serve the common good as contemplated under Section 23(4) of the Act. Probably, the intention of the petitioner seems to be that the land owner should be paid the amounts collected under the impugned Governmental Orders or else the Act itself should be repealed, or otherwise, the exemption shall not be given.
16. There cannot be any hard and fast rule to define ‘subserving the common good’. No straight-jacket formula could be evolved for this purpose. What all it needs to be looked into is whether the matter relates to and arises out of a particular Act and whether the consideration was under the same Act and for the same purpose as contemplated under the aims and objects of the Act read with various provisions thereof. Looking from any angle, the exemption, granted under Section 20(1)(a) read with Section 23(4) of the Act squarely fits into the object sought to be achieved by the Act. The Government had enumerated various difficulties faced by it and also the practical, pragmatic and ground realties and had taken a comprehensive decision as a matter of policy within the framework of law for subserving the common good. As such, the impugned G.Os. cannot be said to be either contrary to the provisions of the Act or against the public policy and they cannot be faulted with. The petitioner has not approached this Court with clean hands and in the name of public interest, sought to achieve his own personal agenda, seems to be at the behest of the owners of the land. The Writ Petition is devoid of merits and liable to be dismissed.
17. Accordingly, the Writ Petition is dismissed. No order as to costs.