JUDGMENT
S.B. Wad, J.
(1) Our task in these writ petitions is rendered easier by Union of India admitting through its counter-affidavit that no norms or guidelines were followed while making the impugned allotments. In these days of rumors and alleged scandals the forth night stand taken by Union of India is singularly welcome. Admission of a mistake creates hope for future. It has freshness of Rajnigandha as the name of one of the petitioner societies suggests.
(2) There is prime land, about 70 acres, in the heart of South Delhi,covering part of Andrews Ganj and Sadiq Nagar. About 27 acres of land are allotted by the Union of India to nine respondent Cooperative Group Housing Societies on 31.3.1986. Within short period of about eight-ten days the allotment letters were sent, the premium amount was paid and physical possession was given to the Societies. These petitions, filed by the other Cooperative Societies challenge legality and propriety of the allotments of the nine societies.Apart from Union of India, the then Minister of Works and Housing and some senior officials of the said Ministry have been joined personally as respondents in the writ petitions. Broadly, the complaint of the petitioners is that the allotment in question is a case of mala fides, favortism and abuse of authority in favor of Ministers. ex-Ministers, M.Ps., their relatives and high Government officials belonging to the concerned Ministry. The other ground of their challenge is that no norms or guidelines were followed in the said allotment regarding the allotments arbitrary, illegal and violative of Article 14 of theConstitution.
(3) Grabbing of material benefits and lands is now so widespread that it has paralysed all legal processes and norms of private and public morality.No section of society is free from it. Mr. Bhandare, Advocate, was quite right in referring to the discretionary allotment of plots to Judges and its abuse in some States. The reason is not always poverty or struggle for the roof over the head. Otherwise, how do we explain large scale sales of the jhuggi jhonpriplots, allotted by the Government, and putting of new jhuggis at new sites by the allottees. Some is the case of commercialisation and profit making of houses in walled city (to which the Slum Area Act applies), leases of nazul land in the prestigious area of New Delhi and illegal construction of ‘farm houses’on elite farms around Delhi. The legal process is further subverted by flooding the courts with petitions for protections of illegal gains and acquisitions.Lawful effort of the Lt. Governor at demolitions is thwarted every time by political interference and by court stays. The real question to be answered by every petitioner is whether he would decline an allotment unsupported by any more and which is an act of favoritism to him. It may sound as a paradox,but is all the same true. The courts are effective only if the deviations are marginal. But if they are wide spread and if there is no social reprobation, the judicial control becomes empty and loses teeth. This enormous and pervading malignency,in the moral and political life of this country, is out of reach of thecourts, inspite of our boast that arms of law are very long.
(4) But, this is not an excuse for ignoring the legitimate grievances. A solution has to be attempted within the confines of law. We have a duty to prevent arbitrariness in Executive actions and transgression of law. Since the Union of India has partially conceded the petitioners’ claim on thiscount, we need not go to the other pleas of the petitioners. But Mr. Bhandare,Advocate, and Mr. K.N. Bhatt, Advocate, have submitted that no reliance can be placed on Government’s affidavit dated 4th December, 1986 (partially conceding the petitioners’ claim) because earlier the Government had filed an affidavit, on 29.4.1986, justifying the allotment in question. We had called for the original record in regard to these allotments. In view of the said submissions for the counsel for respondents we have decided to take the facts from the original Government files in this case.
(5) Large scale acquisition of land around Delhi was initiated by the Central Government in 1959 for the purposes of planned development ofDelhi. To achieve this object, the Delhi Development Act was passed and the Delhi Development Authority was created. On 2.5.1961 the then Minister for works and Housing took a policy decision that all the acquired lands should be entrusted to the D.D.A. Along with the responsibility of allotment of residential and commercial plots. It was decided that the Nazul lands which were being looked after by the land and Development Department of the Central Government should not be allotted for the residential or commercial purposes to individuals or cooperative societies. In 1972 a decision was taken at the Ministerial level imposing ban on allotment of any land in South Delhi.There was also a ban on allotment to cooperative societies in South Delhi imposed in 1981. One petitioner society and one respondent society requested the Central Government in 1981 for allotment of land in South Delhi. They were informed of the ban and were directed to approach Dda for allotment of land elsewhere. The Registrar of Cooperative Societies issued a notification in 1983 inviting applications for registration from cooperative societies for allotment of land. Two thousand and nine cooperative societies applied and about 1500 societies were registered by the Registrar in 1983.
(6) Around the same time, some cooperative societies were formed with Ministers and M.Ps. as its members. They made direct applications to the then Works and Housing Minister for allotment of land in South Delhi.On 15.10.1984 the Land and Development Office informed the Works and Housing Ministry that there was no land available in South Delhi and whatever chunks of land were available were to be utilised for the general pool requirement of the Central Government employees. It was also clarified that the Land and Development Department allots lands only to institutions and not to any individuals or cooperative societies. On 13.11.1984 the DDA also informed the Ministry that no land was available in South Delhi. They also informed that about 2000 acres of land would be available in West Delhi by March, 1985.
(7) The Central Government had leased out about 70 acres of land between Andrews Ganj and Sadiq Nagar in south Delhi Pinjra Pole Society.Their lease was terminated and eviction order under the Public Premises Act was passed against the Society on 23.9.83. The order was challenged by the Society in Delhi High Court. The learned Single Judge of this Court dismissed the writ petition. The Society filed a special leave petition in supreme Court(SLP No. 9103/1984). In the said special leave petition a counter-affidavit was filed on behalf of the Union of India in October, 1984. The Government of India pleaded before the Supreme Court that : “THE Union of India is in urgent need of this land which is situated in the midst of the city behind Andrews Ganj for construction of General Pool Staff Qaaters and other public buildings.”
The Supreme Court dismissed the Special Leave Petition and directed that the land in question be handed over to the Central Government on or before 30/05/1985. The Central Government took the possession of the land on 30/05/1985.
(8) After the Supreme Court dismissed the Special Leave Petition of Pinjra PoleSociety, the then Minister for Works and Housing (Urban Development),took the decision to allot the said land in South Delhi principally to the Cooperative Societies of which the Ministers and M.Ps. were the members.On 9.3.1985 the said Minister made allotment of land to five such Cooperative Societies. Four of them are the respondents in the present writ petition.Originally the proposal was to hand over the said land to the Dda so that the DDA makes the allotment according to its norms, but it was decided not to entrust the land to the Dda but that the L&D.O. should itself make the allotment. The allotment to five cooperative societies was made on 9.3.1985without formally superseding the Ministerial decision taken in 1961 and the ban on allotment imposed in 1972 and 1981. As regards the price of land a reference was made to the Finance Ministry. The Finance Ministry pointed out that the prices of land in South Delhi were fixed between Rs. 1200.00tors. 2000.00 per square yard in 1981 and considering the steep increase of prices of land in Delhi it was necessary to re-determine market rates of land all overDelhi. The Finance Ministry also suggested that rates of land to be allotted to cooperative societies should also be revised in view of the wide gap between such rates and the market value. The Ministry also suggested that the unearned income on the sale of the land by the allottees should be collected at the beginning itself. The Ministry was, however persuaded by reference to the Dda prices that the proper rate for the said cooperative societies would be Rs. 474.00 per sq. yard. The Works and Housing Ministry, thereafter, fixedRs. 474.00 per sq. yard as the rate for allotment to the said societies.
(9) After the initial allotment to five societies, allotment was made to five more societies. Three of them were the societies of which the M.Ps. were themembers. One society was a Society formed by officers and employees of the Works and Housing Ministry itself.
(10) The final notification for allotment of land to nine respondent cooperative societies was issued on 31.3.1986. The lay-out plan of the 70 acres land bears the same date, viz. 31.3.1986. The allotment was communicated to individual societies on 2.4.1986. On 4.4.1986 the 1972 ban on allotment of land in South Delhi was withdrawn by a formal order. Between 8 to 10 days the societies made the payments for the land and by 15/04/1986,possession of land was given to almost all Societies.
(11) In his affidavit dated 4.12.1986 filed by Shri A.K.Goyal.Dy. Land and Development Officer. Ministry of Urban Development, it was stated, :
” 1.That for the purpose of allotment of land to the societies,there had to be certain accepted norms such as ‘first come first served basis’, ‘completion of formalities such as collection of affidavits etc.’.
2.That from a perusal of the records it appears that the societies were not informed as to what norm is being followed for the purpose of allotment of the land in question.
3.That. from the records, it appears that it was intended to follow the principle of ‘first come first served’. The said norm was not disclosed to the public at large so that they could know that the land will be allotted on the basis of said criteria.
4.That it has also been observed that in allotment of the land, to the societies, the principle of first come first served was not universally applied to all the societies who have been allotted land.XX Xx XX
5.That it was not known to the Government as to who were the members of these cooperative societies while making allotment but it was known to the Government that the membership of some of the societies comprised of Members of Parliament.After the land was allotted to the societies, the Land and Development Officer was directed to obtain the lists of members of the various cooperative societies to whom the land was allotted as verified by the Registrar. It was also made clear under the terms of the allotment that it was mandatory for the societies to furnish lists of the members duly certified by the Registrar, Cooperative Societies. The up to date lists containing names of members of six cooperative societies which are available with Land and Development Office are filed herewith.”
(12) In view of this affidavit, the counsel for the Union of India hardly had any argument to advance. The petitions were mostly argued by various counsel appearing on behalf of respondent cooperative societies, justifying the allotment in their favor.
(13) Apart from the facts admitted by Union of India in the affidavit dated 4.12.1986, there are many other facts and decisions disclosed in the original file, perused by us. for which there is no rational explanation. They tend to show that the public interest was relegated to a secondary position in the decision making.
(14) The first question is as to how the land ear-marked for general pool housing was allotted to the cooperative societies of M.Ps. and the cooperative society of the officials of the Urban Development Ministry. The Union of India filed a solemn affidavit before the Supreme Court in SLP. No 9103/1984that they urgently needed the land for construction of general pool staff quarters and other public buildings. How could a representation (in the form of a decision) made to the Supreme Court be side-lined between the dismissal of the Special Leave Petition by the Supreme Court and getting the actual possession of the land from the Pinjra Pole Society ? How could the utilisation of land for public purpose be converted to private purpose of the residential requirements of few cooperative societies ? The allotments in question are thus hit by the principle of estoppel and detriment to public interest. It was submitted on behalf of the Union of India that only 27 acres of land was allotted to the respondent societies, and about 43 acres of land was being utilised for the purposes of general pool housing. The lay-out plan, however, speaks differently.After excluding community centre, neighborhood parks, roads, etc. the general pool housing will not have more than 17 to 18 acres. This fact aggravates the situation further.
(15) The price of the land is fixed at Rs. 474.00 per sq. yard. This is justified by the Union of India and the respondents on the ground that the low price-on no profit no loss basis-is charged for encouraging cooperative group housing societies. In the first counter affidavit the Union of India has claimed that this is a subsidised price. Mr. V.P. Singh, Advocate, appearing for one of the respondent societies has submitted that cooperative societies is a well-recognised classification and even the directive principles of the Constitution enjoin the State to encourage cooperative movement. The Finance Ministry had stated that the unofficial figure of the market price in South Delhi is about Rs. 6thousand per sq. yard. The initial object of large scale acquisition of land in Delhi was to arrest speculation in the land-prices. But, over the years the DDA as the Government agency itself has largely contributed to rocketing prices through its method of selective auctioning of land in Delhi. The Dda has also fixed rates of lands in different areas for the purposes of mopping up unearned income on the sales of land. In South Delhi areas, with which we are concerned, Rs. 4,000.00yer sq. yard is fixed by the Dda as the notional price of land.In the face of these hard facts what is the rational justification for giving land to cooperative societies at 1/15th price of the market value? With the addition of about lacs of population in Delhi every year, scarcity of land is being aggravated year to year. As a policy, Dda is not allotting plots of land to a single holder, but only to group housing societies. As between an ordinaryresident, who could not become a member of any society and a resident who is a member of the society, why should there be such high discrimination of one to fifteen in the prince of land. Is there any rational principle in subsidizing the cooperative societies as a class, when it results into such a heavy loss to the public exchequer? The Directive Principles (Article 43) speaks of only promotion of industries run on the cooperative basis in rural areas and not the housing cooperative societies. On the contrary Articles 15, 29(2) and 46 enjoin the State to promote with special care economic interest of weaker sections of society and, in particular, scheduled castes and scheduled tribes.The State is also enjoined by Article 39 to distribute material resources of the community so as to best subserve the common good. A cooperative housing society of weaker sections of the society can be given plots free or at a low subsidized rate, but not each and every, cooperative society. Suppose if 50 big industrialists come together and form a cooperative housing society would it be justified to give them land on subsidized price on no profit no loss basis ? Merely being a cooperative society is not a rational criterion for classification forgiving valuable lands in South Delhi, almost for a song. One of the reasons for giving land to respondent cooperative societies and not using it for general pool housing, stated in the first affidavit of the Union of India, is shortage of funds for general pool construction with the Government. It this is aconsideration, then an effort should have been made by the Union of India to augment its resources by selling the land at market price which would have generated several crores of rupees for being utilised for general pool and housing for weaker sections. The Finance Ministry had, in fact, made the suggestion on these lines but caved in at a subsequent stage. There is no rational explanation visible on the file. In a recent decision Sachidanand Pandey v. State of West Bengal the Supreme Court has considered the earlier decisions in respect of arbitrariness in pricing of Government properties and has laid down the following conclusion :
“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 percepts and principles have to be observed. Public interest is the paramountconsideration. 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 rules, it is not an invariable rule. There maybe 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.”
(16) The allotment of the lands in question to respondent Cooperative Societies at price of Rs. 474.00 per sq. yard is arbitrary and cannot be sustained.
(17) The nothings on the file disclose that the erstwhile Minister had only the cooperative societies of M.Ps. in his mind for making allotments of this prime land in South Delhi. In the fact, the Minister had asked all the cooperative societies, who had directly applied to give the break-up of membership and in particular, of the number of M.Ps. The officials of the Ministry had, however, cautioned that if the allotment was made wholly to the cooperative societies of M.Ps. that would be discriminatory. Thereafter,the membership number was increased in some societies to include non-MPs.In some societies, relatives of M.Ps. were also made members so as to look that the society is not only a society for M.Ps. Even assuming that the Society of M.Ps. can be treated at par with societies of professionals, like lawyers and journalists, in the working out of the scheme some rational principles must be followed. For example, how could the land be allotted at subsidized rates to six or seven cooperative societies of M.Ps., while there are only one or two societies of one class of professionals ? How could relatives of the M.Ps. be clubbed with the M.Ps.? Why should the relatives of theM.Ps. be treated favorably as against the other residents of Delhi ? So also,way should the non-resident M.Ps. be preferred over the permanent residents of Delhi who are in dire need of housing sites ? Mr. Bhandare, SeniorAdvocate, appearing for some respondents argued that Article 19(l)(e) gives every citizen right tv reside and settle in any part of the territory of India and,therefore, allotment to M.Ps.is justified. But, this right is available to every citizen and not only to M.Ps. Then, why should there be a special treatment forM.Ps. as against other citizens ? Further, should it not be ascertained from the M.Ps. whether they are going to permanently settle in Delhi or not ?Otherwise the M.Ps. who do not want to settle in Delhi cannot be given a special treatment at the cost of other citizens who are or wish to be permanent residents of Delhi. But, it is clear from the file that even in the class of cooperative societies of M.Ps. there is no equal treatment. One of such cooperative society to whom the land was allotted Along with four othersocieties, initially, is not in the final list of allotment. The said society has complained that different criteria were adopted by the Registrar of Cooperative Societies while issuing registration certificates. For some, the certificate was issued without final verification of membership and other formalities and the names were forwarded to Central Government and DDA. while in case of others,registration certificates were delayed for want of verification of membership and completion of other formalities. There are two societies of GovernmentServants. One, of the officials of Urban Development Ministry proper and the other of officials of the Land & Development Office. Both had applied for allotment in 1981 in South Delhi. They were directed to make applications to Dda because there was a ban of allotment in South Delhi ? Both societies were allotted lands by the Dda in other parts of Delhi and took the possession of the land. When they found that lands were being allotted to Cooperative Societies in South Delhi both the societies again applied for land in South Delhi in lieu of land allotted to them. The cooperative society of the officials of Urban Development Ministry proper, got the allotment in South Delhi while the other could not. That is how one society is the petitioner society and the other society is the respondent society in the writ petition. While resisting the claim of the cooperative society of the officials of L&DO. in these writ petitions, the Union of India took a stand that the petitioner society has no locus standi to file a writ petition because the land is already allotted to it in other parts of Delhi.
(18) The counsel for the petitioner has submitted that all other terms of allotment to Respondents are same as of the allotments made by the DDA to cooperative group housing societies, except two. In the normal Dda lease,the lessee is prohibited from transferring the land for the first 10 years, while there is no such restraint or bar in the terms and conditions of allotment to respondent societies. It is submitted that the non-resident M.Ps. are permitted to make huge profit by selling the land/flats. There is no effective answer to this submission either from the Government or the respondent societies.Neither it is clear from the file as to whether the Government had applied its mind to this aspect of the matter. If the land in question was entrusted to the DDA and if Dda was to make the allotment, this normal condition of lease would have been applicable to the respondent societies also.
(19) Counsel turn some of the respondent societies argued that even if the norm of seniority is to be followed, their allotment cannot be challenged because of their seniority. We were not impressed by this argument for the reason that there is no objective material before us to show that the Registrar of Cooperative Societies has prepared the seniority list correctly. Evenotherwise, the allotments suffer from many infirmities and, therefore, we are not inclined to give exclusive relief to some societies.
(20) Dr. Chitley, appearing for one of the respondent societies raised a general question as to whether existence of pre-determined norms is a (legal)condition precedent for discretionary allotment of Government lands. He has tried to draw support from section 22 of the Delhi Development Act relating to Nazul lands. The Union of India has itself admitted that norms are necessary in matters of allotment of land and that they had not followed suchnorms. The decision of the Supreme Court, cited above, makes it very clear that in matters of disposal of public lands, if no norms are followed, it will suffer from the vice of arbitrariness.
(21) Dr. Chitley and, thereafter, Mr. Bhandare, Advocate, submitted that in case we are inclined to accept the writ petitions, we should direct the Government to lay down the norms, but final allotment should be supervised by us, as is done by Supreme Court in some cases. Counsel for the other respondent society, Shri K.N. Bhatt submitted that we should be cautiousbecause, according to him, the norms laid down by the Supreme Court in the special quota allotment of maruti cars, has given rise to some misgivings. In one of the petitions, the petitioner has submitted that we should treat these writ petitions like public interest litigation. We have our reservations. If from the public interest litigation (handled by the Courts so far) there is one lesson it is this that the courts have no effective machinery for enforcement and issues of public concern cannot be resolved by threat of contempt of Court in each case. We realise that the problem is too complex and stupendous for any Government to resolve, but if some rational norms are laid down by the Government and are uniformly and impartially followed the problem can be satisfactorily tackled. Instead of Judges taking over the functions of an administrator, it is more fruitful if the administrator follows judicial methods of objectivity and impartiality.
(22) The allotment of lands to respondent societies suffers from arbitrariness and are violative of Article 14 of the Constitution. The impugned order dated 31.3.1986 and the individual allotments dated 2.4.1986 are setaside. Union of India should seriously reconsider whether the land in question should be allotted to the co-operative societies at all or whether the land should be reserved for the general pool staff housing. In case it is decided to allot the land to co-operative societies, it should be done in accordance with the norms and guidelines laid down in the light of observations made above. We cannot accede to respondents prayer that their possession should not be disturbed for six months, since Government have themselves accepted legal infirmity in the initial allotment. Union of India should take back the possession immediately.
(23) The writ petitions are partly allowed. There shall be no order as to costs.