{"id":231591,"date":"2008-11-14T00:00:00","date_gmt":"2008-11-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-bcanti-group-of-hotels-vs-a-b-hussian-manikfan-on-14-november-2008"},"modified":"2016-04-01T00:05:57","modified_gmt":"2016-03-31T18:35:57","slug":"ms-bcanti-group-of-hotels-vs-a-b-hussian-manikfan-on-14-november-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-bcanti-group-of-hotels-vs-a-b-hussian-manikfan-on-14-november-2008","title":{"rendered":"M\/S.B’Canti Group Of Hotels & … vs A.B.Hussian Manikfan on 14 November, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
M\/S.B’Canti Group Of Hotels & … vs A.B.Hussian Manikfan on 14 November, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWA.No. 985 of 2008()\n\n\n1. M\/S.B'CANTI GROUP OF HOTELS & RESORTS(P)\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. A.B.HUSSIAN MANIKFAN,\"REMEDU GANDUVAR\"\n                       ...       Respondent\n\n2. THE UNION OF INDIA, REPRESENTED BY THE\n\n3. UNION TERRITORY OF LAKSHADWEEP\n\n4. THE DIRECTOR OF TOURISM\n\n5. SOCIETY FOR PROMOTION OF NATURE TOURISM\n\n6. PYKALA SOCIETY REP. BY ITS DIRECTOR\n\n7. M\/S. V.J.M. RESORTS (P) LTD ,5TH FLOOR\n\n8. SRI VIJAY MALLYA, MEMEBR OF PARLIAMENT\n\n                For Petitioner  :SRI.K.P.DANDAPANI (SR.)\n\n                For Respondent  :SRI.P.K.IBRAHIM\n\nThe Hon'ble MR. Justice P.R.RAMAN\nThe Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR\n\n Dated :14\/11\/2008\n\n O R D E R\n                      T.R. Ramachandran Nair, JJ.\n                   - - - - - - - - - - - - - - - - - - - - - - - -\n                   W.A.Nos.985, 1117 and 1215 of 2008\n                    - - - - -- - - - - - - - - - - - - - - - - - - - -\n               Dated this the 14th day of November, 2008.\n\n                                JUDGMENT\n<\/pre>\n
Ramachandran Nair, J.\n<\/p>\n
       These three appeals arise from the judgment in W.P.(C)<\/p>\n
No.2800\/2006. Writ Appeal No.1117\/2008 is filed by the petitioner in the<\/p>\n
writ petition. The 5th respondent in the writ petition (5th respondent in<\/p>\n
W.A.No.1117\/2008) is the appellant in Writ Appeal No.1215\/2008 and the<\/p>\n
7th respondent in the writ petition who is the 7th respondent in Writ Appeal<\/p>\n
No.1117\/2008, is the appellant in Writ Appeal No.985\/2008. Since the<\/p>\n
appeals arise from the same judgment, we are disposing them by this<\/p>\n
common judgment.\n<\/p>\n
       2. The subject matter of the writ petition concerns the challenge<\/p>\n
against the provisional permission granted by the second respondent, viz.<\/p>\n
the Administrator, Union Territory of Lakshadweep for establishing beach<\/p>\n
resorts in two uninhabited islands, viz. Thinnakkara and Bangaram, as per<\/p>\n
Exts.P16, P17 and P17(a) orders. As per Exts.P16 and P17(a), provisional<\/p>\n
permission was granted to the 5th respondent to establish and operate a 38<\/p>\n
bedded beach resort at Bangaram and as per Ext.P17 similar permission<\/p>\n
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\n& 1215\/2008                           -2-<\/span><\/p>\n
was granted to the 5th respondent herein to establish and operate a 72<\/p>\n
bedded resort in Thinnakkara island. In Bangaram island, the provisional<\/p>\n
permission granted is for having a joint venture with the 7th respondent<\/p>\n
herein by the 5th respondent and in Thinnakkara it is for a joint venture with<\/p>\n
the 6th respondent herein.\n<\/p>\n
       3. The grounds of challenge made by the writ petitioner to these<\/p>\n
orders are the same. The learned         Single Judge as per the impugned<\/p>\n
judgment, quashed Exts.P16 and P17(a), i.e. in respect of the grant of<\/p>\n
permission for establishing 38 bedded beach resort at Bangaram and upheld<\/p>\n
the permission granted by way of Ext.P17 in respect of Thinnakkara island.<\/p>\n
In Writ Appeal No.1117\/2008 the appellant\/writ petitioner is challenging<\/p>\n
that part of the judgment of the learned Single Judge whereby his challenge<\/p>\n
against Ext.P17 order in relation to the opening of resort at Thinnakkara<\/p>\n
was repelled.     In the other two writ appeals, respondents 5 and 7 are<\/p>\n
challenging the judgment whereby Exts.P16 and P17(a) have been quashed.<\/p>\n
The parties herein are referred to as arrayed in the writ petition.<\/p>\n
       4. We took Writ Appeal No.1117\/2008 as the leading case and<\/p>\n
arguments were heard accordingly.\n<\/p>\n
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\n& 1215\/2008                            -3-<\/span><\/p>\n
      5.    We have heard Shri P.B. Krishnan, learned counsel for the<\/p>\n
appellant, Shri P.R. Ramachandra Menon, learned Standing Counsel<\/p>\n
appearing for respondents 2 to 4, Shri P.K. Ibrahim learned counsel for<\/p>\n
respondent No.5, Shri A.M.Shaffique learned Senior counsel who appeared<\/p>\n
for the 6th respondent and learned Senior counsel Shri K.P. Dandapani and<\/p>\n
Shri Millu Dandapani, appearing for the 7th respondent.<\/p>\n
      6.     The learned Single Judge, while quashing Exts.P16 and P17(a),<\/p>\n
was of the view that such provisional permission was not preceded by any<\/p>\n
sanction issued by the Government of India as far as the resort at Bangaram<\/p>\n
is concerned. The 5th respondent society did not produce any document to<\/p>\n
show that it was in possession of any land at Bangaram to establish any<\/p>\n
tourist resort. It was further held that it would have been highly desirable, if<\/p>\n
utmost transparency had been maintained in the matters under challenge,<\/p>\n
especially since the potential for tourism industry in the Island of<\/p>\n
Lakshadweep is phenomenally high and unimaginable. It was also held that<\/p>\n
permission granted in respect of resort at Bangaram Island is without<\/p>\n
inviting any tender or quotation and the contention that such procedure was<\/p>\n
not necessary, was held wholly untenable. Thus, primarily the learned<\/p>\n
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\n& 1215\/2008                           -4-<\/span><\/p>\n
Single Judge was of the view that there was absence of any policy as such in<\/p>\n
granting the provisional permission.\n<\/p>\n
      7. Lakshadweep is a Union Territory and it is the tiniest member in<\/p>\n
the fraternity of 28 States and 7 Union Territories of the landmass of India.<\/p>\n
Lakshadweep consists of 36 islands of which 10 are inhabited. The land<\/p>\n
area is 32 sq. kms. and the lagoon area is 4200 sq. kms. According to the<\/p>\n
2001 census the total population is 60595. Lakshadweep with its snow<\/p>\n
white coral sands, corals, rare marine species, friendly people and immense<\/p>\n
potential for water sports is one of the best locations in the world for<\/p>\n
promoting echo-friendly beach tourism. The Union Territory is administered<\/p>\n
by an Administrator.\n<\/p>\n
      8. The writ petitioner is a permanent resident of the Island called<\/p>\n
Minicoy. The challenge against Ext.P16, P17 and P17(a) orders are based<\/p>\n
on various legal and factual aspects. It was mainly contended that the grant<\/p>\n
of provisional permission without calling for competitive bids or tenders, is<\/p>\n
arbitrary and the State largess cannot be bartered away depending on the<\/p>\n
whims and fancies of the officials. Being an entrepreneur in the field, the<\/p>\n
petitioner had a legal right to have his application considered by the<\/p>\n
authorities and the exclusion of all others while preferring the 5th respondent<\/p>\n
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\n& 1215\/2008                          -5-<\/span><\/p>\n
along with respondents 6 and 7, is clearly violative of Article 14 of the<\/p>\n
Constitution of India. The orders in question do not confer any benefit on<\/p>\n
the Government. The Government had been taking land on lease from<\/p>\n
owners. The proclaimed policy as regards development of tourism in<\/p>\n
Lakshadweep islands is by inviting competitive bids by global tenders<\/p>\n
which was being put in force from the year 1988 onwards. The existing<\/p>\n
tourist resort in Bangaram, which was allowed to be established only after<\/p>\n
competitive bids were invited, is pointed out as a specific case.          It is<\/p>\n
contended that the Government of India has not been involved in any of the<\/p>\n
decisions rendered by the Administrator along with the Director of Tourism<\/p>\n
in Lakshadweep. In the light of the strategic importance of Lakshadweep<\/p>\n
Islands and for reasons of its security and in the light of the established<\/p>\n
procedure which was being adopted by the Government of India for more<\/p>\n
than one decade, it is submitted that the present approach made by the<\/p>\n
authorities of the Union Territory cannot be accepted legally. It is also<\/p>\n
submitted that the orders are hit by the provisions of Laccadive, Minicoy<\/p>\n
and Amini Islands (Protection of ST) Rules, 1967 and         the provisions of<\/p>\n
Laccadive, Minicoy and Amindivi Islands Land Revenue and Tenancy<\/p>\n
Regulation, 1965. There is a clear prohibition for lease of land in the islands<\/p>\n
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\n& 1215\/2008                           -6-<\/span><\/p>\n
to outsiders and to other agencies.       The 5th respondent Society, it is<\/p>\n
contended, is only one formed by a group of people, with the aims and<\/p>\n
objectives of promoting beach resorts in the islands. The identity and the<\/p>\n
details of the persons behind the society have not been disclosed in spite of<\/p>\n
various allegations raised by the petitioner in the writ petition and the<\/p>\n
authorities have clearly acted in tune with the wishes and demands made by<\/p>\n
respondents 5 to 7. It is thus pointed out that the orders suffer from<\/p>\n
malafides.\n<\/p>\n
      9. These arguments were countered by the learned counsel for the<\/p>\n
respondents. It is pointed out that as argued by the learned counsel for the<\/p>\n
petitioner, there had not been any uniform policy evolved by the<\/p>\n
Government of India to lease out land for entrepreneurs to establish beach<\/p>\n
resorts in the uninhabited islands in Lakshadweep.             Lakshadweep<\/p>\n
administration was free to take its own decision and it has got unfettered<\/p>\n
discretion in the matter. It is contended that the 5th respondent society had<\/p>\n
taken on lease land owned by the inhabitants of the two islands and that the<\/p>\n
transaction is not hit by any of the provisions of the regulations. The writ<\/p>\n
petitioner is a person who is not having any land to establish such resorts<\/p>\n
and therefore he is not having any locus standi to challenge Exts.P16 to<\/p>\n
WA 985, 1117
\n& 1215\/2008                          -7-<\/span><\/p>\n
P17(a). It is contended that various authorities have granted permission to<\/p>\n
the 5th respondent society to enter into the joint ventures and the statutory<\/p>\n
clearances have been obtained before venturing into the business in<\/p>\n
question. It is therefore submitted that the learned Single Judge was not<\/p>\n
correct in interfering with Exts.P16 and P17(a) orders in regard to<\/p>\n
Bangaram Island and the findings rendered regarding the said issue calls for<\/p>\n
interference.\n<\/p>\n
      10. We will now refer to the scope of the orders impugned in the writ<\/p>\n
petition, viz. Exts.P16 to P17(a).      As per Ext.P17(a), the Director,<\/p>\n
Department of Information, Publicity and Tourism, Lakshadweep<\/p>\n
Administration conveyed the approval of the competent authority according<\/p>\n
provisional permission for establishment and operation of 38 bedded beach<\/p>\n
resort (named as B’Cantil Beach Resort) at Bangaram Island in a joint<\/p>\n
venture between M\/s. Pykala Society, Agatti and M\/s. B’Cantil Groups of<\/p>\n
Hotels & Resorts Pvt. Ltd., Trivandrum, Keerala, subject to various<\/p>\n
conditions. Ext.P16 is the subsequent order passed him granting permission<\/p>\n
to the Pykala Society to bring tourists both domestic tourists and<\/p>\n
international tourists to Bangaram island.    Ext.P17 is a similar order for<\/p>\n
establishment and operation of 72 bedded beach resort at Thinnakkara<\/p>\n
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\n& 1215\/2008                           -8-<\/span><\/p>\n
island as a joint venture between M\/s. Pykala Society and M\/s. V.J.M.<\/p>\n
Resorts Pvt. Ltd., Nariman Point, Mumbai, subject to various conditions.<\/p>\n
Pykala Society is the 5th respondent herein, M\/s. V.J.M. Resorts is the 6th<\/p>\n
respondent and M\/s. B’Canti Group of Hotels & Resorts (P) Ltd. is the 7th<\/p>\n
respondent herein.\n<\/p>\n
      11.    Firstly, we will consider the dispute regarding the policy<\/p>\n
formulation. Learned counsel for the writ petitioner contended that as far as<\/p>\n
the policy of the Government of India is concerned, from 1988 onwards the<\/p>\n
permissions were being granted only after inviting global tenders and<\/p>\n
therefore various parties including the petitioner could compete for the<\/p>\n
same. In 1988 international competitive tenders were invited for the lease<\/p>\n
of a 12 bed hotel resort in the uninhabited Bangaram island. The successful<\/p>\n
tenderer was given lease in respect of the resort for five years which is being<\/p>\n
renewed from time to time. It is also pointed out that even while individual<\/p>\n
proposals were being mooted by the petitioner, the Administration was duly<\/p>\n
informing that as and when further action is taken, that will be informed.<\/p>\n
Ext.P1 is one of the replies given by the second respondent to the petitioner,<\/p>\n
in that regard. Later, by Ext.P2 another reply was given when he submitted<\/p>\n
proposal for setting up resorts in four islands. Ext.P4 will show that the<\/p>\n
WA 985, 1117
\n& 1215\/2008                           -9-<\/span><\/p>\n
Lakshadweep Administration proposed to open up some uninhabited islands<\/p>\n
for tourism by leasing their lands to private entrepreneurs by inviting global<\/p>\n
tenders, and it was accepted by the Ministry of Tourism, Government of<\/p>\n
India. In 1992 global tenders were invited for operation of tourist resorts in<\/p>\n
the islands of Thinnakara and Cheriyam. The petitioner submitted his<\/p>\n
tender for establishing a resort at Thinnakara and submitted project report<\/p>\n
along with a demand draft for Rs.25,000\/- as required by the tender<\/p>\n
conditions. Ext.P7 is the form for international competitive offer submitted<\/p>\n
by the petitioner. Certain clarifications were sought from him by Ext.P8.<\/p>\n
But the matter was kept pending without taking any final decision and none<\/p>\n
of the tenders were accepted at that time.\n<\/p>\n
      12. Relying upon various documents produced by the petitioner,<\/p>\n
learned counsel submitted that the policy at that time was that the<\/p>\n
Government will invite tenders or quotations, they will lease out the land<\/p>\n
on terms and only by such competitive tenders alone, the right to conduct<\/p>\n
the resort will be given.         Reference is made to Exts.P9 and P10<\/p>\n
communications received by the petitioner in that regard.          It is also<\/p>\n
submitted that in 1996 global tenders were invited for operating 20 bed<\/p>\n
resort at Agatti. During the IXth Five Year Plan between 1997-98 to 2001-<\/p>\n
WA 985, 1117
\n& 1215\/2008                          -10-<\/span><\/p>\n
02 the Lakshadweep Administration itself submitted proposals for such<\/p>\n
projects to the Planning Commission,        Union of India to continue the<\/p>\n
existing policy; i.e., the Government itself taking the land on lease from<\/p>\n
the land owners and letting it out for tourism development.          Specific<\/p>\n
reference is made to Thinnakara along with Suheli and Cheriyam. Ext.P21<\/p>\n
is relied upon for this purpose.      It is also stated that the resort was<\/p>\n
established in Bengaram Island in 1988 pursuant to international<\/p>\n
competitive tenders invited and when the renewal of the same was mooted,<\/p>\n
the petitioner challenged the renewal of the lease in favour of M\/s. Hotel<\/p>\n
Allied Trades and the matter had reached the Hon’ble Supreme Court of<\/p>\n
India. Ext.P11 is referred to in this regard. Ext.P12 is the report submitted<\/p>\n
by the Centre for Earth Science Studies (CESS) wherein they have studied<\/p>\n
the carrying capacity development planning for Thinnakara island itself.<\/p>\n
Again, the 4th respondent in the year 2000 invited offers for operation of<\/p>\n
beach resorts at Kadamath and Minicoy. Ext.P13 is relied upon to sustain<\/p>\n
the said argument and even though the petitioner submitted his offer to start<\/p>\n
a resort at Minicoy, the bids were not finalised at that time.<\/p>\n
      13. Our attention is invited to the fact that in the year 2003 M\/s. Tata<\/p>\n
Consultancy Services was engaged            to prepare a master plan for<\/p>\n
WA 985, 1117
\n& 1215\/2008                           -11-<\/span><\/p>\n
development of tourism in the islands.          The master plan so prepared<\/p>\n
recommended that global tenders must be invited from the prospective<\/p>\n
entrepreneurs.   It is also stated that the Island Development Authority<\/p>\n
presided over by the Prime Minister of India at its 10th meeting accepted<\/p>\n
the master plan and the allegations in this regard made by the petitioner<\/p>\n
have not been denied by the respondents. It is further submitted that the<\/p>\n
Planning Commission of the Govt. of India in Ext.P14, has also declared its<\/p>\n
policy by way of acquiring\/leasing land for new tourism projects at various<\/p>\n
islands including Bangaram and Thinnakara. Referring to Ext.P22 which is<\/p>\n
a reply made by the Minister for Tourism on the floor of the Lok Sabha on<\/p>\n
23.2.2006, it is pointed out that no project proposal, complete in all respects<\/p>\n
as per the guidelines, is pending with the Ministry of Tourism at that time.<\/p>\n
It is submitted that the reply will further reiterate the stand of the petitioner<\/p>\n
that there are various guidelines in this regard. Referring to Ext.P23 which<\/p>\n
is a notice issued by the Department of Tourism, it is stated that permission<\/p>\n
and sanction from the Administration is required for bringing tourists into<\/p>\n
the islands and for running resorts. It is further submitted that the various<\/p>\n
dates on which Exts.P16 and P17 issued will show that it was on the eve of<\/p>\n
the departure of the Administrator and Shri G. Sudhakar, the Director of<\/p>\n
WA 985, 1117
\n& 1215\/2008                          -12-<\/span><\/p>\n
Tourism, from the island and it is pointed out that immediately after the<\/p>\n
issuance of the orders, they left on 11.8.2006 and 22.7.2006 respectively<\/p>\n
from the service of the Lakshadweep Administration. Along with the reply<\/p>\n
affidavit also, the petitioner has produced various documents to show that<\/p>\n
the policy itself was for developing the land after taking on lease by the<\/p>\n
Government itself, and by inviting global tenders.\n<\/p>\n
      14. We will now refer to the documents produced by the petitioner to<\/p>\n
consider the said argument raised vehemently by the learned counsel for the<\/p>\n
petitioner. The said aspect is a crucial issue that has emerged in this case,<\/p>\n
since it is contended by various respondents that no such policy by way of<\/p>\n
the Government alone taking land, on lease available\/acquisition within the<\/p>\n
islands, was mooted. The earliest document is Ext.P3 which is a reply given<\/p>\n
by the Department of Tourism, Union Territory of Lakshadweep to the<\/p>\n
Director of Tourism, Govt. of India. It is stated therein that modalities for<\/p>\n
developing three newly identified islands in Lakshadweep as international<\/p>\n
tourist resort are being worked out in consultation with Ministry of<\/p>\n
Tourism. Unless the strategy for the development of island resort in three<\/p>\n
islands of Cheriyam, Suheli Valiyakara and Thinnakara is finalised by the<\/p>\n
Ministry and final approval of the Island Development Authority is obtained<\/p>\n
WA 985, 1117
\n& 1215\/2008                          -13-<\/span><\/p>\n
in the matter, the Lakshadweep Administration cannot proceed further in<\/p>\n
the matter. Admittedly, the Island Development Authority is chaired by the<\/p>\n
Prime Minister of India. Therefore, Ext.P3 will show that a final approval<\/p>\n
of the Island Development Authority was required and Thinnakara is one of<\/p>\n
the islands mentioned in Ext.P3. Ext.P3 is dated 30.10.1991. This is<\/p>\n
followed by Ext.P4 reply of the Deputy Director General, Department of<\/p>\n
Tourism, Govt. of India, to the Administrator, Union Territory, obviously<\/p>\n
in reply to Ext.P3. This reply will show that the matter was taken up with<\/p>\n
all concerned Ministries\/Departments of the Govt. of India for getting no<\/p>\n
objection and a note has been forwarded to the Planning Commission<\/p>\n
which is looking into the other related matters pertaining to opening of these<\/p>\n
islands. The note is also appended to Ext.P4. A reading of the note will<\/p>\n
show that the Administration of the Union Territory of Lakshadweep itself<\/p>\n
has proposed that some islands in the Union Territory be opened for<\/p>\n
development of international tourism by leasing its lands to private<\/p>\n
entrepreneurs by inviting global tenders.         This proposal was made<\/p>\n
considering the success of the island resort at Bangaram. The names of the<\/p>\n
three islands mentioned are Cheriyam, Suheli-Valiyakara and Thinnakara.<\/p>\n
The details about these islands are mentioned in the note. The special<\/p>\n
WA 985, 1117
\n& 1215\/2008                           -14-<\/span><\/p>\n
features of Thinnakara island is mentioned along with the other two islands.<\/p>\n
Lastly, it is mentioned that specific locations in Lakshadweep and Andaman<\/p>\n
and Nicobar islands may be opened up on the basis of specified norms (a) to<\/p>\n
(h) and importantly item (a) is that global tenders be invited for lease of<\/p>\n
land for exclusive use of tourists for a period of 10 years extendable by<\/p>\n
another 10 years.    Ext.P5 is the notification issued by the Department of<\/p>\n
Tourism, Govt. of India inviting offers from parties with proven capability<\/p>\n
in the field of beach\/island resorts for developing new island resorts on<\/p>\n
long term lease in the virgin islands of Arabian Sea, Thinnakara and<\/p>\n
Cheriyam of the Kerala coast in Lakshadweep. It is further mentioned<\/p>\n
therein that “offers must be in accordance with the investment and<\/p>\n
collaboration policy of the Government.” Ext.P6 is the copy of a letter by<\/p>\n
the Deputy Director General, Department of Tourism, Govt. of India which<\/p>\n
mentions that Govt. of India proposes to give two islands, viz. Thinnakara<\/p>\n
and Cheriyam located at Lakshadweep on long term lease for development<\/p>\n
of tourism resorts based on “international competitive offers” and enclosing<\/p>\n
the form of offer and other documents. The formalities to be complied with<\/p>\n
are mentioned in Ext.P6. The appendix to Ext.P6 gives details of the<\/p>\n
project also. As per its specifications and guidelines, the land is to be leased<\/p>\n
WA 985, 1117
\n& 1215\/2008                           -15-<\/span><\/p>\n
out by the Government and item 9 states that “offers must be in accordance<\/p>\n
with the investment and collaboration policy of the Govt. of India”.<\/p>\n
Pursuant to the offer made by the petitioner, Ext.P8 was issued to him by<\/p>\n
the Department of Tourism, Govt. of India regarding certain formalities to<\/p>\n
be complied with.\n<\/p>\n
       15. Thus, it is evident from the above documents that there was a<\/p>\n
clear policy on the part of the Govt. of India in regard to the development of<\/p>\n
tourism in various parts of the Union Territory of Lakshadweep. The<\/p>\n
activities evolved by certain Government agencies is evident from the fact<\/p>\n
that the Society for Promotion of Nature Tourism and Sports (SPORTS)<\/p>\n
which is a Government sponsored co-operative society and is the nodal<\/p>\n
agency for the promotion of tourism in Lakshadweep invited global tenders<\/p>\n
for operating tourist resorts with 58 beds at Kadamath and with 20 beds in<\/p>\n
Minicoy. Ext.P21 is a draft of the IXth Five Year Plan 1997-98 to 2001-02<\/p>\n
submitted by Lakshadweep Administration to the Planning Commission<\/p>\n
with specific suggestions for tourism development. Therein, reference is<\/p>\n
made to the preparation of a master plan, since the conventional method of<\/p>\n
tourism development may not suit the islands. In Scheme No.4, with the<\/p>\n
heading “objective of the scheme in IXth Five Year Plan 1997-98 to 2001-<\/p>\n
WA 985, 1117
\n& 1215\/2008                           -16-<\/span><\/p>\n
02″ under para 3, (page 296 of the Paper Book), the policy has been spelled<\/p>\n
the following words: “Tourism has emerged as one of the most income and<\/p>\n
employment generating industry in Lakshadweep. Encouraged by this and<\/p>\n
the Bangaram model of development the the Administration has decided to<\/p>\n
open more uninhabited islands for tourism. Proposals have been submitted<\/p>\n
to Central Ministry for leasing out uninhabited island – Thinnakara, Suheli<\/p>\n
Valiyakara and Cheriyam. The Ministry will be calling global tenders for<\/p>\n
developing these islands as international tourist resorts. As the land is<\/p>\n
limited, relatively expensive and its transaction is strictly governed by the<\/p>\n
Lakshadweep (Protection of Scheduled Tribe) Regulation 1964, the land has<\/p>\n
to be made available to resort at concessional rates so as not to affect the<\/p>\n
viability of the project. Therefore, it is proposed to make land available to<\/p>\n
develop at concessional rate of the land value. The Government will take<\/p>\n
land on lease from land owners and let it out for resort development.<\/p>\n
Provision under the scheme is made for the lease rent of the land in Suheli,<\/p>\n
Thinnakara and Cheriyam.” The details of the lease rent fixed is available<\/p>\n
under the heading “A – Physical” for all the respective areas mentioned<\/p>\n
from 1997-98 to 2001-02. This is in respect of the three islands. This also<\/p>\n
supports the case of the petitioner that a clear and established policy as such<\/p>\n
WA 985, 1117
\n& 1215\/2008                            -17-<\/span><\/p>\n
was existing.     Ext.P23 is a notice issued by the Director, Tourism<\/p>\n
Administration of Union Territory of Lakshadweep dated 7.2.2006, wherein<\/p>\n
caution is made of the attempt to bring tourists by certain individuals<\/p>\n
illegally. Therein, it is reiterated that “every effort should be made to stop<\/p>\n
running of parallel tourism in the islands due to its fragile ecology, limited<\/p>\n
carrying capacity and for security reasons.” This also indicates that the<\/p>\n
whole policy was evolved considering the strategic importance of the<\/p>\n
islands and in view of the peculiar circumstances prevailing there. The<\/p>\n
policy as such for development envisaged absolute Government control and<\/p>\n
the right to establish the resort was being given on land taken on lease from<\/p>\n
land owners by Government, and by letting it out by inviting global tenders<\/p>\n
only. The argument that such a policy will not apply to the projects mooted<\/p>\n
by 5th respondent cannot, therefore, hold good.\n<\/p>\n
       16. Another important document relied upon by the petitioner in<\/p>\n
support of the argument regarding this policy of the Central Government is<\/p>\n
Ext.P25.    The same is the presentation made before the Parliamentary<\/p>\n
Committee of Transport, Tourism and Culture, when they visited the island.<\/p>\n
The said report contains the guidelines for development of tourism and for<\/p>\n
expansion of the potential. Various details regarding the existing tourism<\/p>\n
WA 985, 1117
\n& 1215\/2008                          -18-<\/span><\/p>\n
infrastructure in 9 islands like Bangaram, Kavaratti, Agatti, Kadamath,<\/p>\n
Kalpeni and Minicoy have been mentioned. Special mention is made about<\/p>\n
Bangaram and Thinnakara. The infrastructure proposed for Thinnakkara is<\/p>\n
60 bed for land based and 192 beds for lagoon based. Under the heading<\/p>\n
“Investment Avenues” it is specifically mentioned that “land\/lagoon will be<\/p>\n
given on lease for 30-40 years to private entrepreneurs through open global<\/p>\n
tenders; operation of this is on BOT basis and and the operator to pay<\/p>\n
minimum fee per bed per day occupied to the Government as tax\/royalty for<\/p>\n
running the resort. (Page 343 of the Paper Book). The above presentation<\/p>\n
clearly supports the argument raised by the petitioner that it was the<\/p>\n
Governmental policy to give land on lease to private entrepreneurs through<\/p>\n
open global tenders.\n<\/p>\n
      17. That the said policy was in vogue throughout and is envisaged for<\/p>\n
future, is re-inforced by the draft XIth Five Year Plan 2007-2012 in tourism<\/p>\n
sector prepared by the Administration itself (Ext.P39).    Under the sector<\/p>\n
“tourism” various schemes have been put forward including the target, etc.<\/p>\n
to be achieved during the plan period. Under the heading “B. Sector :<\/p>\n
Tourism” Scheme 3 is relevant here. In para 1, the name of the scheme is<\/p>\n
WA 985, 1117
\n& 1215\/2008                        -19-<\/span><\/p>\n
given as “Opening of more islands for Tourism.” There is specific mention<\/p>\n
about projects for Thinnakara island which is extracted below:<\/p>\n
     “Tourism has emerged as one of the most income-and-employment<\/p>\n
     generating industry in Lakshadweep. Encouraged by this Bangaram<\/p>\n
     model of development, the Administration has decided to open more<\/p>\n
     uninhabited islands for tourism. The proposal has already been<\/p>\n
     submitted for the development of tourism in Thinnakara and<\/p>\n
     Cheriyam to the Tourism Ministry and the approval from the Ministry<\/p>\n
     is expected during the 1st stage of XIth Plan.” (Internal page 267 at<\/p>\n
     page 449 of the Paper Book)<\/p>\n
In the same paragraph it is further mentioned that “the land required for<\/p>\n
purpose can be taken on lease from        land owners and also through<\/p>\n
acquisition.” Seven islands including Thinnakara are mentioned here as<\/p>\n
coming under the Scheme. It is stated by the petitioner that the draft plan<\/p>\n
was approved by the Planning Commission in its meeting held on<\/p>\n
20.3.2007. Under para 2 in the same page, it is stated as follows:<\/p>\n<\/blockquote>\n
      “2) Whether continuing from previous :\n<\/p><\/blockquote>\n
                   Plan\/New                          Continuing\n\n       3) Objective                             :\n\n       (a) Component Name           :           Lease rent\/land actuation.\n\n<\/pre>\n
       1. Description of the component: Tourism has emerged as one of<\/p>\n
      the most     income and      employment      generating   Industry in<\/p>\n
WA 985, 1117
\n& 1215\/2008                             -20-<\/span><\/p>\n
        Lakshadweep. Encouraged by the Bangaram model of development<\/p>\n
        the Administration has decided to open more inhabited\/uninhabited<\/p>\n
        islands for tourism. The proposal for the development of tourism in<\/p>\n
        Thinnakara, Suheli Valiyakara and Cheriyakara has been submitted<\/p>\n
        to the Central Ministry and the action from Ministry is expected<\/p>\n
        during XIth plan. By taking into consideration of tourism potentials<\/p>\n
        in the inhabited islands of Andrott, Kiltan, Chetlath & Birta these<\/p>\n
        islands are also proposed to pen for domestic tourists. As the land is<\/p>\n
        limited and the ownership is with the local landowners, provision<\/p>\n
        under the scheme is made for lease rent\/acquisition of the land in<\/p>\n
        Thinnakara and Cheriyam and other inhabited islands. Lease rent of<\/p>\n
        the land made use by the Department for construction of resorts in<\/p>\n
        different islands will also be made under the scheme.<\/p>\n<\/blockquote>\n
        2. Whether continuing\/new        : Continuing”<\/p>\n
\n
It is, therefore, clear that the policy as was in existence, is being continued<\/p>\n
which implies that the earlier policy was the same. This is quite important<\/p>\n
to consider the issue that is raised in this writ petition. One more aspect to<\/p>\n
be mentioned herein is that the draft envisages a tourism policy to be<\/p>\n
finalised under the heading “description of the component”. (Internal page<\/p>\n
268 of the Paper Book).        It is stated therein that “since the land area is<\/p>\n
limited and hence carrying capacity of each island have to be worked and<\/p>\n
detailed report thereon is to be initiated annually and a Tourism Policy has<\/p>\n
WA 985, 1117
\n& 1215\/2008                           -21-<\/span><\/p>\n
to be formulated for strengthening the activities of tourism in Lakshadweep<\/p>\n
in a systematic way and also for future developmental programmes.”<\/p>\n<\/blockquote>\n
       18. It is clear from the above documents that from 1988 to 2007 there<\/p>\n
had been a consistent policy evolved by the Govt. of India and the Union<\/p>\n
Territory of Lakshadweep as regards development of tourism in the islands,<\/p>\n
which is envisaged for future continuance also. Therefore, 5th respondent<\/p>\n
is not right in contending that the method adopted by them is unassailable.<\/p><\/blockquote>\n
       19. Importantly, the petitioner has also produced Ext.P18 which is a<\/p>\n
communication issued by the Administrator, Union Territory of<\/p>\n
Lakshadweep to the various offices for publication. The subject in question<\/p>\n
is the development of tourism in islands. The policy as discernible from the<\/p>\n
documents already referred to, is reiterated in the said communication. He<\/p>\n
had referred to the various models which could be thought of for putting a<\/p>\n
suitable policy in place. It states that one of the models could be the<\/p>\n
Maldivian Model. After referring to the same, it is stated thus: “For this<\/p>\n
model, the Administration will have to step in to have an agreement with<\/p>\n
the land owners to be able to have these land rights after which the resort<\/p>\n
could be allowed to the highest bidders through global tendering process by<\/p>\n
the Administration, after getting draft tender documents and the policy<\/p>\n
WA 985, 1117
\n& 1215\/2008                           -22-<\/span><\/p>\n
approved by the Ministry of Tourism, Govt. of India.” Further, it is stated<\/p>\n
that “such a policy should be in place immediately, as interest of the land<\/p>\n
owners should be protected by the Administration to the maximum returns<\/p>\n
to them. This will also eliminate the possibility of any unwanted elements<\/p>\n
and will also add other safeguards for the administration as well as the<\/p>\n
islanders. It is all the more important as these islands are sensitive from<\/p>\n
the strategic point of view, security point of view and environment<\/p>\n
point of view. These issues were discussed in the various meetings relating<\/p>\n
to the Island Development Authority and all these concerns were raised by<\/p>\n
the Ministry of Tourism, Ministry of Environment and Forests and various<\/p>\n
Security Agencies.” Finally it is stated that the officers concerned should<\/p>\n
prevent any land dealings for tourism purposes till such time the policy is<\/p>\n
put in place, so that the interest of the land owners, security of the islands,<\/p>\n
the environmental concern etc., are duly addressed and the islanders are not<\/p>\n
taken for a ride.” Significantly, this is dated 9.8.2006, whereas the<\/p>\n
impugned orders are dated 7.6.2006 (Ext.P16) and 17.7.2006 (Ext.P17).<\/p>\n
In the light of the above policy that is reiterated in Ext.P18 by the<\/p>\n
Administrator, Union Territory of Lakshadweep also, we fail to understand<\/p>\n
how the Administrator and the Director of Tourism could have granted<\/p>\n
WA 985, 1117
\n& 1215\/2008                           -23-<\/span><\/p>\n
provisional permission as done in Exts.P16 to P17(a). The petitioner is<\/p>\n
therefore right in submitting that the policy as such from 1988 onwards till<\/p>\n
this period is one of the Government leasing the land and allowing resorts<\/p>\n
to be established through global tender process. As all these have been<\/p>\n
given a go-bye by the Administration by the way in which Exts.P16 to P17<\/p>\n
(a) have been passed, they cannot be supported at all. Learned Single Judge<\/p>\n
has held that as far as the island of Bangaram is concerned, Exts.P16 and<\/p>\n
P17(a) cannot survive for want of tendering process and transparency and<\/p>\n
sanction by Government of India. The same reasoning applies to Ext.P17<\/p>\n
as far as the establishment and operation of 72 bedded resort at Thinnakara<\/p>\n
island and we do not find any distinguishing feature as far as the said<\/p>\n
project is concerned.\n<\/p>\n
      20. We may mention here one aspect, i.e. about the stand, if any,<\/p>\n
taken by respondents 1 to 4 in their counter affidavits in regard to the<\/p>\n
documents relied upon by the petitioner. None of them deny the existence<\/p>\n
of the various documents discussed above. It is not the case that the same<\/p>\n
does not apply to the development of tourism in Lakshadweep.                 But<\/p>\n
strangely, the above respondents have, in their counter affidavit, sidelined<\/p>\n
the issue that has been raised by the petitioner relating to the violation of the<\/p>\n
WA 985, 1117
\n& 1215\/2008                           -24-<\/span><\/p>\n
policy. The affidavits of these respondents are clearly evasive also in<\/p>\n
regard to the above aspects. Therefore, in the absence of any dispute<\/p>\n
regarding the existence of the documents, it can only take that they do not<\/p>\n
dispute the various policy formulations mentioned in the documents which<\/p>\n
are basic to the development of tourism in the Union Territory of<\/p>\n
Lakshadweep. In the counter affidavit filed by the Union of India, the<\/p>\n
approach made is that the land is a State subject and therefore to allot the<\/p>\n
land for development, the competent authority is the Union Territory<\/p>\n
Administration. But it is admitted in para 6 that “the Ministry of Tourism<\/p>\n
promotes the cause of tourism including Island Tourism and reviews the<\/p>\n
progress from time to time and addresses policy issues.”          The above<\/p>\n
admission is significant in the light of the policy statements made in various<\/p>\n
documents discussed by us already.       While referring to Ext.P37 produced<\/p>\n
by the petitioner which is a letter addressed to the Administrator, Union<\/p>\n
Territory of Lakshadweep issued by the Govt. of India, it is stated that “the<\/p>\n
letter emphasizes on the need to prepare a model bid document for private<\/p>\n
entrepreneur to participate in the development of the islands. Suffice it to<\/p>\n
say that the model bid document should be prepared keeping the<\/p>\n
transparency principle in view.” The above admission is also significant.<\/p>\n
WA 985, 1117
\n& 1215\/2008                              -25-<\/span><\/p>\n
Finally, in para 8 it is stated that “it is therefore, up to the State Govt.\/Union<\/p>\n
Territory Administration to follow the prescribed procedure for allotment of<\/p>\n
land” and it is further admitted that in regard to allotment of islands to<\/p>\n
respondents 5 and 6, it was done by the Union Territory Administration<\/p>\n
and the Ministry of Tourism was not involved in any manner. Thus, it is<\/p>\n
clear from the counter affidavit that the stand taken by respondents 5 to 7<\/p>\n
and by the Union Territory that there had not been any policy or any<\/p>\n
prescribed procedure, is not correct.\n<\/p>\n
      21. In the additional counter affidavit filed by the first respondent on<\/p>\n
11.3.2007 also, no attempt has been made to deny the existence of the<\/p>\n
policy particulars and formulations made mention of in the documents<\/p>\n
relied upon by the petitioner. Thus, actually the stand taken by the Union of<\/p>\n
India does not go counter to the case pleaded by the petitioner.<\/p>\n
      22. The approach made by respondents 2 and 3, i.e. the<\/p>\n
Administrator, Union Territory of Lakshadweep and the Director of<\/p>\n
Tourism, Union Territory of Lakshadweep, is that the 5th respondent society<\/p>\n
offered to have joint venture in promoting tourism resorts with respondents<\/p>\n
6 and 7. The society offered land also in the two islands and as the Ministry<\/p>\n
of Environment had given clearance, there is nothing illegal in issuing<\/p>\n
WA 985, 1117
\n& 1215\/2008                           -26-<\/span><\/p>\n
Exts.P16 and P17(a). It is therefore submitted that there is no prescribed<\/p>\n
procedure for inviting global tenders and none of the said formulations<\/p>\n
apply to the facts of this case. In regard to the argument raised by the<\/p>\n
petitioner that the entire aspects were done in a secret manner, in para 8 it is<\/p>\n
stated as follows:\n<\/p>\n
       “It is respectfully submitted that, publication or notification is not<\/p>\n
       required for these kind of activities of the third respondent, since the<\/p>\n
       Right to Information Act is in existence, one can apply for any<\/p>\n
       document of this nature and the 3rd respondent has to make available<\/p>\n
       the applicant, the document he or she has asked for within thirty days<\/p>\n
       at the maximum.”\n<\/p><\/blockquote>\n
 This approach made by respondents 2 and 3 is seen severely commented<\/p>\n
upon by the learned Single Judge in the judgment under appeal. Clearly, the<\/p>\n
said approach is totally evasive and does not address the questions posed<\/p>\n
by the petitioner. Even though it is stated that the Govt. of India had<\/p>\n
accorded necessary sanction, nothing of that sort has been produced along<\/p>\n
with the counter affidavit. In view of the stand of the Government of India<\/p>\n
in their counter affidavit, the same is incorrect also. Ext.R3 which is a<\/p>\n
clearance under the Coastal Regulation Zone Notification, 1991 issued by<\/p>\n
the Ministry of Environment of Forests, Govt. of India, has nothing to do<\/p>\n
WA 985, 1117
\n& 1215\/2008                           -27-<\/span><\/p>\n
with the policy aspect of the project in question. Therefore, that cannot be<\/p>\n
treated as a sanction issued by the Govt. of India for the establishment of<\/p>\n
the resort as such, in accordance with the procedure prescribed. The<\/p>\n
Ministry of Tourism, Government of India and the Island Development<\/p>\n
Authority have not cleared the projects. Going by Ext.P18 issued by the<\/p>\n
Administrator himself these are required. It is evident therefore that there<\/p>\n
had not been any transparent policy as far as the entire issue is concerned,<\/p>\n
while issuing Exts.P16 to P17(a) by respondents 2 and 3.<\/p>\n
      23. We will now come to the case pleaded by respondents 5 to 8 and<\/p>\n
its acceptability. The 5th respondent is a society registered under the<\/p>\n
Societies Registration Act, 1860. According to them, as per Ext.R5(c), they<\/p>\n
approached the Govt. of India, Department of Tourism by placing its<\/p>\n
proposal to develop Thinnakara island for tourism as a joint venture with<\/p>\n
M\/s. U.B. Resorts Limited and sought necessary permission. It is stated that<\/p>\n
the third respondent forwarded the details of the project as per Ext.R5(e), as<\/p>\n
recommended by the       second respondent, to the Ministry of Tourism<\/p>\n
Government of India. It is their case that the Lakshadweep Pollution<\/p>\n
Control Committee, as per Ext.R5(g) dated 26.6.1996 gave a No Objection<\/p>\n
Certificate. Ext.R5(h) is the letter issued by the local panchayat supporting<\/p>\n
WA 985, 1117
\n& 1215\/2008                          -28-<\/span><\/p>\n
the efforts of the 5th respondent. Ext.R5(k) is the approval granted by the<\/p>\n
District Panchayat, Lakshadweep for setting up beach resort at Bangaram<\/p>\n
and Ext.R5(l) is the No Objection Certificate issued by the Pollution<\/p>\n
Control Board, Lakshadweep for the project at Bangaram.           Ext.R5(m)<\/p>\n
environmental clearance was issued by the Department of Environment and<\/p>\n
Forest, Lakshadweep. In the said project, the U.B. Resorts Limited was the<\/p>\n
party with whom the 5th respondent has entered into certain agreements for<\/p>\n
execution of the project. It is stated that on 1.9.2005 the society entered<\/p>\n
into an agreement with another U.B. Group company, viz. V.J.M. Company<\/p>\n
for implementing the project.      Learned counsel appearing for the 5th<\/p>\n
respondent submitted that Exts.R1 and R2 produced along with the counter<\/p>\n
affidavit of respondents 2 and 3 will show that the argument raised by the<\/p>\n
petitioner regarding invitation of global tender, etc. is wrong.        It is<\/p>\n
submitted that there was no restriction for any private agency to get land on<\/p>\n
lease to enter into any joint venture with entrepreneurs and to seek<\/p>\n
permission from the Lakshadweep Administration itself.<\/p>\n
      24. A reading of Ext.R1 only shows that it is a communication issued<\/p>\n
by the Govt. of India, Ministry of Home Affairs to the Administrator,<\/p>\n
Lakshadweep on 2.5.2001, without specifically referring to any of the<\/p>\n
WA 985, 1117
\n& 1215\/2008                          -29-<\/span><\/p>\n
projects proposed.     It appears that with regard to the proposal of the<\/p>\n
Lakshadweep Administration to open           island resorts at Thinnakara,<\/p>\n
Cheriyam and Suheli Valiyakara islands, the said Ministry was of the view<\/p>\n
that the matter relating to the land has to be resolved in consultation with<\/p>\n
the Department of Tourism. At any rate, Ext.R1 does not throw any further<\/p>\n
light on the said aspect. Ext.R2 is a letter dated 6.10.1995 issued to the<\/p>\n
President of the 5th respondent society by the Deputy Director General,<\/p>\n
Department of Tourism, New Delhi. The subject discussed relates to the<\/p>\n
negotiation that was being undertaken by the 5th respondent with the U.B.<\/p>\n
Group for setting up of resort at Thinnakara. Relying upon the various<\/p>\n
points discussed, learned counsel for respondents 5 to 7 argued that this<\/p>\n
letter cuts at the root of the argument raised by the learned counsel for the<\/p>\n
petitioner that permission from the Govt. of India and other agencies were<\/p>\n
required and also that global tender is the only method. A reading of the<\/p>\n
letter only shows that nothing has been said finally therein. Only the<\/p>\n
various points discussed therein have been itemized as ‘A to G’. We are of<\/p>\n
the view that neither the policy in regard to the development of the various<\/p>\n
islands for tourism purposes nor the manner in which the same has to be<\/p>\n
done in tune with the security concerns or the environmental aspects have<\/p>\n
WA 985, 1117
\n& 1215\/2008                           -30-<\/span><\/p>\n
been put a lid by the said communication, to facilitate 5th respondent’s<\/p>\n
project. Further, it is only a letter addressed to the 5th respondent society<\/p>\n
and it does not have any effect by way of granting permission by the Govt.<\/p>\n
of India or the Ministry of Tourism to proceed with the project proposed by<\/p>\n
the 5th respondent. Further, it is only issued by the Deputy Director General<\/p>\n
of the Department of Tourism and not by any of the Ministries of the Govt.<\/p>\n
of India. There is no clearance by the Ministries concerned. Ext.R3 is only<\/p>\n
a clearance under the Coastal Regulation Zone Notification,          1991 for<\/p>\n
setting up Thinna Beach Resort at Thinnakara Islands, Lakshadweep by<\/p>\n
U.B. Resorts Limited. Obviously that cannot take the place of a valid<\/p>\n
permission as contemplated under the policy we have referred to.<\/p>\n
       25. Now we will come to the issue of validity of the lease of land<\/p>\n
obtained by 5th respondent in these Islands. The 5th respondent maintains<\/p>\n
that the said society was able to obtain land on lease from the local people,<\/p>\n
could enter into projects with other entrepreneurs and therefore there is<\/p>\n
nothing wrong with the procedure adopted. As far as Thinnakara island is<\/p>\n
concerned, the only project is a 72 bedded resort. Even though learned<\/p>\n
counsel for the 5th respondent argued that the petitioner is free to avail land<\/p>\n
and put up some project, as rightly pointed out by the learned counsel for<\/p>\n
WA 985, 1117
\n& 1215\/2008                          -31-<\/span><\/p>\n
the petitioner, it is rather impossible because the only project that is<\/p>\n
envisaged therein by the Administration and the Governmental agencies is<\/p>\n
to have a 72 bedded resort. Therefore, there is no question of the petitioner<\/p>\n
putting up an alternate proposal. With regard to Bangaram island also,<\/p>\n
already a resort had started functioning there in the year 1988 and at<\/p>\n
present, as per Exts.P16 and P17(a), the 5th respondent is given the<\/p>\n
provisional permission to open another resort therein. There also they are<\/p>\n
claiming that the land is leased to them by the local people. Therefore, it is<\/p>\n
a case where the 5th respondent society, apart from promoting the project,<\/p>\n
has put forth a contention that they are having sufficient land for opening<\/p>\n
the resort which is lacking with the petitioner and therefore the petitioner<\/p>\n
has no locus standi to challenge the action.\n<\/p>\n
      26.   The said argument has to be examined in the light of the<\/p>\n
provisions of the Lakshadweep (Protection of Scheduled Tribes)<\/p>\n
Regulation, 1964 and other provisions on which heavy reliance was placed<\/p>\n
by the learned counsel for the petitioner to show that the 5th respondent<\/p>\n
society could not have obtained any land directly from the local people<\/p>\n
without any previous permission from the Administration.<\/p>\n
WA 985, 1117
\n& 1215\/2008                         -32-<\/span><\/p>\n
      27. The Lakshadweep (Protection of Scheduled Tribes) Regulation,<\/p>\n
1964 which was amended in 1973 is the relevant one. It is produced as<\/p>\n
Ext.R14 along with the counter affidavit of respondents 2 and 3. The same<\/p>\n
has been promulgated by the President of India in exercise of the powers<\/p>\n
conferred by Article 240 of the Constitution.      Under this   Regulation<\/p>\n
provisions have been made to govern the transfer by way of sale, mortgage,<\/p>\n
lease, exchange, gift or otherwise, any land by members of Scheduled<\/p>\n
Tribes. All of the natives of Lakshadweep are Scheduled Tribes. The<\/p>\n
relevant provisions, viz. Regulation Nos.3(1) and and 3(3) are extracted<\/p>\n
below:\n<\/p>\n
      “3(1) No member of the Scheduled Tribes shall, except with the<\/p>\n
      previous sanction of the Administrator, transfer by way of sale,<\/p>\n
      mortgage, lease, exchange, gift or otherwise, any land;<\/p>\n<\/blockquote>\n
            Provided that no such sanction shall be necessary in the case of<\/p>\n
      any transfer of land to the Government, a bank, a co-operative society<\/p>\n
      or any member of the Scheduled Tribes.\n<\/p><\/blockquote>\n
      3(3) Any transfer, attachment or sale of any land made in<\/p>\n
      contravention of this section shall be void.”\n<\/p><\/blockquote>\n
Going by sub-regulation No.4 of Regulation No.3, “no person shall, except<\/p>\n
with the previous sanction of the Administrator, acquire any interest in any<\/p>\n
land situated in the Union Territory of the Laccadive, Minicoy and<\/p>\n
WA 985, 1117
\n& 1215\/2008                           -33-<\/span><\/p>\n
Amindivi Islands or in any product of, or crop raised on, such land.” But<\/p>\n
under the proviso, such acquisition of any such interest by the Government,<\/p>\n
a Bank, a co-operative society or any member of the Scheduled Tribe do not<\/p>\n
require any previous sanction. Regulation No.4 shows that if any land is<\/p>\n
sold in execution of the decree or order, only a member of the Scheduled<\/p>\n
Tribe is entitled to bid at such public auction. Regulation No.5 provides for<\/p>\n
punishment in case of contravention of the provisions as noted above.<\/p>\n
Regulation No.6 obliges the Administrator to record the reasons while<\/p>\n
sanctioning the transfer of any land under        Regulation 3(1) or under<\/p>\n
Regulation 4.\n<\/p>\n
       28. Regulation No.2 defines a bank, a co-operative society and a<\/p>\n
Scheduled Tribe. A co-operative society coming within the purview of<\/p>\n
Regulation No.2 means a society registered, or deemed to be registered,<\/p>\n
under any law relating to co-operative societies for the time being in force<\/p>\n
in the Union Territory of the Laccadive, Minicoy and Amindivi islands.<\/p>\n
       29. Respondent No.5 is not a co-operative society; it is only one<\/p>\n
registered under the Societies Registration Act, 1860. Therefore, obviously<\/p>\n
it will not come within the proviso to Regulation 3(1). Therefore, previous<\/p>\n
sanction of the Administrator is required for any lease of land to the said<\/p>\n
WA 985, 1117
\n& 1215\/2008                           -34-<\/span><\/p>\n
society which admittedly is absent here. Going by sub-regulation (3) of<\/p>\n
Regulation 3,    any transfer, attachment or sale of any land made in<\/p>\n
contravention of Regulation No.3 will be void.\n<\/p>\n
      30. The stand of the Society and the Administration in this regard<\/p>\n
which is supported by the other respondents, is that the 5th respondent is a<\/p>\n
society formed by members of Scheduled Tribe and as there is no restriction<\/p>\n
with regard to any transaction between a Scheduled Tribe and another<\/p>\n
Scheduled Tribe, the lease obtained by the 5th respondent society will not<\/p>\n
come within the mischief of Regulation Nos.3(1) and 3(3).            The writ<\/p>\n
petitioner has got a case going by the averments in the writ petition, in the<\/p>\n
reply affidavit and the Writ Appeal memorandum that all the members of<\/p>\n
the 5th respondent society are not members of Scheduled Tribe. The same<\/p>\n
has been reiterated in the arguments before us. It is contended by learned<\/p>\n
counsel for the petitioner that the 5th respondent society has been formed by<\/p>\n
the members of three families in Lakshadweep who have been either<\/p>\n
working as Govt. servants or were Govt. servants. The details of all such<\/p>\n
persons are given in the reply affidavit in paragraphs 12 to 15. It is also<\/p>\n
contended that the deponent of the counter affidavit of the 5th respondent<\/p>\n
society is a retired Director         of Agriculture of the Lakshadweep<\/p>\n
WA 985, 1117
\n& 1215\/2008                         -35-<\/span><\/p>\n
Administration and he continues to be a member of the Pollution Control<\/p>\n
Board Committee constituted by the Lakshadweep Administration even<\/p>\n
after the retirement. (He is not a member of the society.) The President of<\/p>\n
the 5th respondent society is an Arabic Teacher in a Government School run<\/p>\n
by Lakshadweep Administration and his brother is the Vice President of the<\/p>\n
society who is working as Scuba Diving Instructor under the Department of<\/p>\n
Tourism, Lakshadweep Administration. The wife of the deponent of the<\/p>\n
counter affidavit filed by the 5th respondent is its Treasurer and she is a<\/p>\n
family member of the President and Vice President of the Society and is<\/p>\n
working as Accountant in the Lakshadweep Administration. The Secretary<\/p>\n
of the 5th respondent Society is working as Station Manager of M\/s. Indian<\/p>\n
Airlines at Agatti Airport. He was working in the Government Press at<\/p>\n
Kavaratti under the Lakshadweep Administration.            His brother is a<\/p>\n
Veterinary     Assistant  Surgeon    working     under   the   Lakshadweep<\/p>\n
Administration. He is one of the members of the society and his wife is also<\/p>\n
another member. The brother-in-law of the Secretary of the Society is<\/p>\n
another member and one other member is a retired Surveyor in the<\/p>\n
Department of Revenue, Lakshadweep Administration. The 5th respondent<\/p>\n
society has not denied these averments in its rejoinder dated 29\/01\/2007.<\/p>\n
WA 985, 1117
\n& 1215\/2008                           -36-<\/span><\/p>\n
       31. The counter affidavits filed by respondents 2 to 4 in this regard<\/p>\n
have also to be referred to. In the counter affidavit filed by respondents 2<\/p>\n
and 3, viz. the Lakshadweep Administration, what is stated in para 7 is that<\/p>\n
the 5th respondent is a society formed by locals, which is reiterated in para 9<\/p>\n
of the counter affidavit. In the additional counter affidavit filed on behalf of<\/p>\n
respondents 2 and 3, in para 13 it is stated that the society is one registered<\/p>\n
under the Societies Registration Act, 1860 and majority of its members<\/p>\n
are Scheduled Tribes and natives of Agatti. Significantly, none of the<\/p>\n
details of the members have been given in the counter affidavit. The 4th<\/p>\n
respondent, in para 11 of the counter affidavit, takes a stand that at<\/p>\n
Bangaram and Thinnakara, the land has been leased by private<\/p>\n
individuals\/land owners to the 5th respondent, a local society, and all the<\/p>\n
members of 5th respondent are natives of Lakshadweep and therefore, the<\/p>\n
question of mortgage, lease, exchange, gift or otherwise of land to outsiders<\/p>\n
does not arise. The members of the society are described as natives of<\/p>\n
Lakshadweep only but no details of the members have been stated.<\/p>\n
       32. We may refer to the counter affidavit of the 5th respondent itself to<\/p>\n
find out whether it throws any light on the above said aspect. In para 4,<\/p>\n
what is stated is that the society has been formed by the inhabitants of<\/p>\n
WA 985, 1117
\n& 1215\/2008                          -37-<\/span><\/p>\n
Lakshadweep islands and therefore it is 100% islanders’ society. No details<\/p>\n
of the members of the society, or their number etc. have been stated in the<\/p>\n
said para. In para 13 of the counter affidavit, it is stated that the 5th<\/p>\n
respondent is not a Government agency and is a society. The stand taken in<\/p>\n
para 16 of the counter affidavit is that there is absolutely no prohibition in<\/p>\n
transferring the land by a Scheduled Tribe belonging to the island in favour<\/p>\n
of a society fully owned and controlled by inhabitants of islanders and<\/p>\n
hence the provisions of the relevant regulation have not been violated.<\/p>\n
Thus, even going by the additional counter affidavit filed by respondents 2<\/p>\n
and 3, it only states that majority of the members of the society are natives<\/p>\n
of Lakshadweep.\n<\/p>\n
      33. It is clear from the relevant provisions of the regulation that if the<\/p>\n
transaction is between a Scheduled Tribe and another Scheduled Tribe, no<\/p>\n
previous sanction is required. But herein, admittedly the transaction is<\/p>\n
between locals who are members of the Scheduled Tribe and the 5th<\/p>\n
respondent society which cannot claim itself the status of a Scheduled<\/p>\n
Tribe. Merely because of the fact that the majority of the members of the<\/p>\n
society belong to Scheduled Tribe, once they formed a society, they lose<\/p>\n
their identity and the society itself being a legal entity, the status of the<\/p>\n
WA 985, 1117
\n& 1215\/2008                         -38-<\/span><\/p>\n
individual members as Scheduled Tribe cannot be claimed by the society.<\/p>\n
Therefore, the society cannot claim that it being a society formed by<\/p>\n
members of the Scheduled Tribe, the transaction is not hit by Regulation<\/p>\n
No.3(1).    The provisions of the regulation only saves the transaction<\/p>\n
between Scheduled Tribes and the Government, Bank, co-operative society,<\/p>\n
etc. A society formed under the Societies Registration Act does not come<\/p>\n
within the exempted category. If that be so, if at all it can be contended that<\/p>\n
the society is formed by the members of the Scheduled Tribe, that will not<\/p>\n
relieve it from the obligations which are mandatorily provided under<\/p>\n
Regulation 3(1) and 3(4). Therefore, the transaction is hit by clauses 3(1)<\/p>\n
and 3(3) of the Regulation and the same is void.\n<\/p>\n
      34. The learned Single Judge took the view that the rigour of<\/p>\n
Regulation No.3 will not apply to the 5th respondent society, since the<\/p>\n
members of it belong to Scheduled Tribe. We are afraid, the said reasoning<\/p>\n
cannot hold good in the light of the specific prohibition in Regulation No.3<\/p>\n
(1) and the proviso. Previous sanction is not required only if the transfer of<\/p>\n
land is to the Government, a bank, a co-operative Society or any member of<\/p>\n
the Scheduled Tribe. Therefore, we hold that in the light of Regulation<\/p>\n
Nos.3(1) and 3(3), the 5th respondent society cannot claim that the leasehold<\/p>\n
WA 985, 1117
\n& 1215\/2008                           -39-<\/span><\/p>\n
right, if any, obtained by them from the owners of the land survives, as the<\/p>\n
transaction itself has been declared statutorily as void. On this ground also,<\/p>\n
the permission granted to the 5th respondent society as per Exts.P16 to P17<\/p>\n
(a) has to be held as illegal, being violative of the Lakshadweep (Protection<\/p>\n
of Scheduled Tribes) Regulation, 1964. We may note one more aspect here.<\/p>\n
Significantly, one of the conditions in Ext.P17, viz. condition No.5 states<\/p>\n
that “provisions of the Laccadive, Minicoy & Amindivi Islands (Protection<\/p>\n
of Scheduled Tribes) Regulation, 1964 should be complied with.”<\/p>\n
Therefore, the Administration also has rightly understood the scope and<\/p>\n
binding nature of the regulation. But, since this permission as per Exts.P16<\/p>\n
to P17(a) is definitely on the premise that the society has its own land, any<\/p>\n
direction to comply with the provisions of the regulation, after such<\/p>\n
permission has been granted, has no meaning at all.\n<\/p>\n
       35. In this context, learned counsel for the petitioner relied upon the<\/p>\n
decision of the Apex Court in Samatha v. State of A.P. and another<\/p>\n
{(1997) 8 SCC 191) to contend that the provision in question being made in<\/p>\n
the interest of the Scheduled Tribe, should be considered as one for welfare<\/p>\n
of the deprived sections of the society and strict compliance should be<\/p>\n
observed as regards the mandates of the regulation. Therein, under the<\/p>\n
WA 985, 1117
\n& 1215\/2008                            -40-<\/span><\/p>\n
Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959, Section<\/p>\n
3(1)(a) prohibited transfer of immovable property situated in Agency tracts<\/p>\n
by a person, whether or not such person is a member of ST, unless made in<\/p>\n
favour of a person, who is a member of ST or a society composed solely of<\/p>\n
members of Scheduled Tribe. Any transaction which is entered into in<\/p>\n
violation of the provision is statutorily declared null and void under the<\/p>\n
provisions of the said regulation. In paragraphs 39 and 40, their Lordships<\/p>\n
held as follows:\n<\/p>\n
       “Section 3 of the Regulation prohibits transfer of immovable property<\/p>\n
       by a member of the Scheduled Tribes to a non-Scheduled Tribe<\/p>\n
       member. The transfer of immovable property between a member of<\/p>\n
       the Scheduled Tribe to a non-Scheduled Tribe member in the Agency<\/p>\n
       tracts is null and void. The non-tribal transferee acquires no right,<\/p>\n
       title and interest in that behalf in furtherance of such sale.”<\/p><\/blockquote>\n
       36. In the light of the above dictum laid down by the Apex Court,<\/p>\n
we have no doubt in our mind that the rigour of Regulation Nos.3(1), 3(3)<\/p>\n
and 3(4) have been violated and it results in the transactions being treated as<\/p>\n
null and void. The 5th respondent society acquires no right and interest in<\/p>\n
the land said to have been given by the members of Scheduled Tribe by way<\/p>\n
of lease to it in Bengaram and Thinnakkara. Significantly, none of the lease<\/p>\n
WA 985, 1117
\n& 1215\/2008                           -41-<\/span><\/p>\n
deeds have been produced before this court and details of the transaction<\/p>\n
between the 5th respondent society and the persons holding the land and the<\/p>\n
benefits which may accrue ultimately to them if the resort is established,<\/p>\n
have also not been disclosed, even though it is contended that they will get<\/p>\n
benefits by way of rent. The official respondents 2 and 3 have also not<\/p>\n
disclosed the details of the benefit which the land holders will get by way of<\/p>\n
rent, etc. It is obvious that the regulation is meant to protect the interest of<\/p>\n
Scheduled Tribes and thus strict adherence to the regulations is sine-qua-<\/p>\n
non for any valid transaction mentioned in Regulation No.3(1). Along with<\/p>\n
I.A.No.766\/2008 filed in W.A.No.1117\/2008, the 5th respondent has<\/p>\n
produced Exts.R5(b) and R5(c), to contend that the Society had obtained<\/p>\n
prior sanction. A perusal of the said documents do not show the same.<\/p>\n
Ext.R5(b) is only a letter from the District Registrar, stating the stamp duty<\/p>\n
for lease deed for 25 years. That cannot be termed as a sanction for the<\/p>\n
purpose of the Regulation. Ext.R5(c) is only a communication by the Sub<\/p>\n
Registrar to the Deputy Registrar, conveying No Objection for registering<\/p>\n
transfer deed.    No other details are available. These two        are not the<\/p>\n
competent authorities as prescribed by the Regulation. Hence, these<\/p>\n
documents have no value at all, to decide the issue. Under the Laccadive,<\/p>\n
WA 985, 1117
\n& 1215\/2008                           -42-<\/span><\/p>\n
Minicoy and Amindivi Islands (Protection of Scheduled Tribes) Rules 1967<\/p>\n
forms have been prescribed for application for transfer of land on lease etc,<\/p>\n
which should be submitted to the Administrator, through the Tahsildar of<\/p>\n
the area where the land is situated. Detailed procedures are prescribed<\/p>\n
under the said Rules to deal with such applications. Obviously, Exts.R5(b)<\/p>\n
and R5(c) cannot have any value at all, in the light of the specific provisions<\/p>\n
of the Rules. At any rate those cannot be termed as orders conveying<\/p>\n
sanction as provided under the Regulation.        Hence we reject the said<\/p>\n
argument raised by learned counsel for 5th respondent.<\/p>\n
      37. Learned counsel for the petitioner also contended that the lands<\/p>\n
situated in Bangaram and Thinnakara are Pandaram lands and none of the<\/p>\n
land holders were granted pattayam from the Government and therefore in<\/p>\n
that view of the matter and going by the provisions of the Laccadive,<\/p>\n
Minicoy and Amindivi Islands Land Revenue and Tenancy Regulation,<\/p>\n
1965 the transactions, if at all entered into by the 5th respondent, cannot be<\/p>\n
saved. Our attention is drawn to the definition clause 2(e) and Regulation<\/p>\n
Nos.83 and 84 in this regard.        It is submitted that even though the<\/p>\n
Administrator has right to confer occupancy, that has not been done so far.<\/p>\n
Regulation No.84(1) reads as follows:\n<\/p>\n
WA 985, 1117
\n& 1215\/2008                           -43-<\/span><\/p>\n
      “84(1) Subject to the provisions of this Regulation and the Laccadive,<\/p>\n
      Minicoy and Amindivi Islands (Protection of Scheduled Tribes)<\/p>\n
      Regulation, 1964, the rights of an occupant in his land shall be<\/p>\n
      permanent, heritable and transferable.”\n<\/p>\n
Therefore, any occupant of the land can transfer the right only in accordance<\/p>\n
with the provisions of     Lakshadweep (Protection of Scheduled Tribes)<\/p>\n
Regulation, 1964, the provisions of which we have already considered.<\/p>\n
Inviting our attention to Regulation 98(2), it is contended that even in a case<\/p>\n
of lease, the period of lease cannot exceed five years which will be subject<\/p>\n
to a further renewal for five years and in this case the 5th respondent has<\/p>\n
taken a condition that it has obtained the land on lease for 25 years. An<\/p>\n
examination of Regulation 98(2) shows that any lease can only be for a<\/p>\n
period of five years subject to renewal for a period of five years at a stretch.<\/p>\n
In the light of the provisions of the above regulation also, which definitely<\/p>\n
apply to the lands in question, the transaction entered into by the 5th<\/p>\n
respondent society can only be stated as illegal and void.<\/p>\n
      38. As a matter of fact, the learned Single Judge has considered the<\/p>\n
contentions on their merits and therein also no finding has been rendered<\/p>\n
against the appellant\/writ petitioner as regards his locus standi in the matter.<\/p>\n
WA 985, 1117
\n& 1215\/2008                         -44-<\/span><\/p>\n
Apart from that, the writ petitioner is a person who had already been<\/p>\n
applying before the authorities, viz. respondents 1 to 4 and had actually<\/p>\n
submitted his tenders when notifications were issued by inviting global<\/p>\n
tenders for starting\/opening resorts in Bangaram and Agatti.      Even in<\/p>\n
respect of Thinnakara, as per Ext.P5 global tenders were invited for<\/p>\n
development of island resorts in Thinnakara and Cheriyam.         He had<\/p>\n
responded to the same by submitting Ext.P7. He had been challenging the<\/p>\n
renewal of lease granted for the existing resort at Bangaram and had taken<\/p>\n
out the matter up to the Hon’ble Supreme Court. Exts.P1 to P10 will show<\/p>\n
that he had been pursuing his application submitted during various stages<\/p>\n
for entering the field. In view of the above, it cannot be said that he is<\/p>\n
totally unconnected with the result of the grant and therefore cannot<\/p>\n
challenge the permission issued in favour of respondents 5 to 7.<\/p>\n
      39. We will also advert to one aspect which came to our notice. The<\/p>\n
case pleaded by respondent No.5 is that they have entered into various<\/p>\n
negotiations with U.B. Group and the proposals were accordingly submitted<\/p>\n
before the authorities for getting permission. A reading of Ext.P17 will<\/p>\n
show that the clearance dated 01\/07\/2003 under the Coastal Regulation<\/p>\n
Zone Regulation, 1991 for setting up of Thinna Beach Resort at Thinnakara<\/p>\n
WA 985, 1117
\n& 1215\/2008                            -45-<\/span><\/p>\n
island was granted to the Pykala Society and the U.B. Resorts Private<\/p>\n
Limited as a joint venture. Presently, as per Ext.P17 permission is granted<\/p>\n
to M\/s. Pykala Society and M\/s. V.J.M. Resorts (P) Ltd., Mumbai who were<\/p>\n
not in the picture at any point of time. The counter affidavit filed by the 5th<\/p>\n
respondent shows that the 5th respondent society had placed its proposal to<\/p>\n
develop Thinnakara island for tourism as a joint venture with U.B. Resorts<\/p>\n
Limited and accordingly, applications were mooted for environmental<\/p>\n
clearance, etc. All along, it is reiterated that the communications Exts.R5(c)<\/p>\n
to R5(e) takes in the joint venture by Pykala Society in association with<\/p>\n
U.B. Resorts Limited. Para 12 of their counter affidavit shows that on<\/p>\n
1.9.2005 they have entered into an agreement with V.J.M. Company in<\/p>\n
supersession of the agreement with U.B. Resorts for continuing the project<\/p>\n
in Thinnakara, Parali I and Parali II islands. Accordingly, the project in<\/p>\n
Thinnakara, Parali I and Parali II is being implemented by the society and<\/p>\n
V.J.M. Company which is one of the U.B. Group Companies. Evidently,<\/p>\n
the counter affidavits of the official respondents 2 and 3 do not mention<\/p>\n
about the stage of entry of 7th respondent and no examination has obviously<\/p>\n
been made as to their credentials in the matter. A reference to the counter<\/p>\n
affidavit filed by respondents 6 and 8 shows that U.B. Resorts Limited<\/p>\n
WA 985, 1117
\n& 1215\/2008                          -46-<\/span><\/p>\n
ceased to operate and the 6th respondent company was set up to avail of the<\/p>\n
projects for developing tourism in Lakshadweep islands and other parts of<\/p>\n
India. Now, even if for the sake of argument it is admitted that clearances<\/p>\n
were granted by the various authorities, viz. District Panchayat and<\/p>\n
Pollution Control Board, those were granted only for a joint venture with<\/p>\n
U.B. Group and the 6th respondent is no where in the picture. Thus, the<\/p>\n
above developments will show that everything was granted without<\/p>\n
properly assessing the merits of the parties involved.<\/p>\n
      40. Learned counsel for the appellant\/writ petitioner submitted that<\/p>\n
Exts.P16 to P17(a) cannot stand for a moment in view of the well settled<\/p>\n
legal principles laid down by various decisions of the Apex Court. The<\/p>\n
entire actions have been taken arbitrarily and against the proclaimed policy<\/p>\n
in the matter and without conforming to the procedure that was being<\/p>\n
followed from 1988 onwards in the matter of setting up of projects. It was<\/p>\n
also contended that the Island Development Authority which is an arm of<\/p>\n
the Planning Commission and which is chaired by the Prime Minister of<\/p>\n
India, has not also been involved in the matter.      Learned counsel relied<\/p>\n
upon various decisions of the Apex Court to bolster up his contentions in<\/p>\n
this regard. It is also contended that by granting permission like this, the<\/p>\n
WA 985, 1117
\n& 1215\/2008                           -47-<\/span><\/p>\n
interest of the Government has also not been taken into consideration and<\/p>\n
unlike the existing resort at Bangaram which is paying an amount of Rs.75<\/p>\n
lakhs to the Administration\/SPORTS, herein the Government of India or the<\/p>\n
Lakshadweep Administration is not benefited at all and no tax or royalty is<\/p>\n
insisted while granting the permission. It is further submitted that as far as<\/p>\n
Bangaram and Thinnakara are concerned, now the permission granted<\/p>\n
exhausts such Projects and therefore a monopoly has been created in favour<\/p>\n
of respondents 5 to 8 in the matter which is also against public interest and<\/p>\n
such steps could not have been taken arbitrarily to favour respondents 5 to<\/p>\n
8. It is contended that the Administration and the Director of Tourism left<\/p>\n
service within a period of one month of the grant of permission which itself<\/p>\n
shows that undue haste has been shown by them by taking decisions on<\/p>\n
their own, without involving the Union of India or any of the arm of the<\/p>\n
Union of India in the matter.\n<\/p>\n
      41. We will now refer to the principles laid down by the Apex Court,<\/p>\n
in various decisions, concerning the exercise of power by the Government<\/p>\n
or any authority when they enter into contracts or granting licence and<\/p>\n
distributing largess. It is well settled by the decision of the Apex Court in<\/p>\n
Ramana Dayaram Shetty v. The International Airport Authority of<\/p>\n
WA<\/a> 985, 1117
\n& 1215\/2008                           -48-<\/span><\/p>\n
India and others (AIR 1979 SC 1628) that while entering into contracts or<\/p>\n
granting privileges, the Government cannot act as a private person. While<\/p>\n
answering the question whether the position of the Government is the same<\/p>\n
as that of a private giver, their Lordships held as follows:<\/p>\n
       “Some interests in Government largess, formerly regarded as<\/p>\n
       privileges, have been recognised as rights while others have been<\/p>\n
       given legal protection not only by forging procedural safeguards but<\/p>\n
       also by confining\/structuring and checking Government discretion in<\/p>\n
       the matter of grant of such largess. The discretion of the Government<\/p>\n
       has been held to be not unlimited in that the Government cannot give<\/p>\n
       or withhold largess in its arbitrary discretion or at its sweet will.”<\/p><\/blockquote>\n
       (para 11)<\/p>\n
In para 12 of the above decision,           their Lordships agreed with the<\/p>\n
observations of K.K. Mathew, J. (as he then was) in Punnan Thomas v.<\/p>\n
State of Kerala (AIR<\/a> 1969 Ker. 81 (FB), that “the Government is not and<\/p>\n
should not be as free as an individual in selecting the recipients for its<\/p>\n
largess. Whatever its activity, the Government is still the Government and<\/p>\n
will be subject to restraints, inherent in its position in a democratic society.<\/p>\n
A democratic Government cannot lay down arbitrary and capricious<\/p>\n
standards for the choice of persons with whom alone it will deal” and<\/p>\n
finally it was held as follows:\n<\/p>\n
WA 985, 1117
\n& 1215\/2008                          -49-<\/span><\/p>\n
      “It must, therefore, be taken to be the law that where the Government<\/p>\n
      is dealing with the public, whether by way of giving jobs or entering<\/p>\n
      into contracts or issuing quotas or licences or granting other forms of<\/p>\n
      largess, the Government cannot act arbitrarily at its sweet will and,<\/p>\n
      like a private individual, deal with any person it pleases, but its action<\/p>\n
      must be in conformity with standard or norm which is not arbitrary,<\/p>\n
      irrational or irrelevant. The power or discretion of the Government in<\/p>\n
      the matter of grant of largess including award of jobs, contracts<\/p>\n
      quotas, licences etc., must be confined and structured by rational,<\/p>\n
      relevant and non-discriminatory standard or norm and if the<\/p>\n
      Government departs from such standard or norm in any particular<\/p>\n
      case or cases, the action of the Government would be liable to be<\/p>\n
      struck down, unless it can be shown by the Government that the<\/p>\n
      departure was not arbitrary, but was based on some valid principle<\/p>\n
      which in itself was not irrational, unreasonable or discriminatory.”<\/p>\n
Therefore, while exercising the discretion, the Government will have to<\/p>\n
conform to the Constitutional or       public law limitations.       Where a<\/p>\n
corporation is an instrumentality or agency of Government, it would, in the<\/p>\n
exercise of its power or discretion, be subject to the same constitutional or<\/p>\n
public law limitations as Government (Para 20). Their Lordships further<\/p>\n
held as follows:\n<\/p>\n
         “This rule also flows directly from the doctrine of equality<\/p>\n
        embodied in Article 14. Article 14 strikes at arbitrariness in State<\/p>\n
WA 985, 1117
\n& 1215\/2008                          -50-<\/span><\/p>\n
        action and ensured fairness and equality of treatment. It requires<\/p>\n
        that State action must not be arbitrary but must be based on some<\/p>\n
        rational and relevant principle which is non-discriminatory. It must<\/p>\n
        not be guided by any extraneous or irrelevant consideration, because<\/p>\n
        that would be denial of equality. The principle of reasonableness<\/p>\n
        and rationality which is legally as well as philosophically an<\/p>\n
        essential element of equality or non-arbitrariness is projected by<\/p>\n
        Article 14 and it must characterise every State action, whether it be<\/p>\n
        under authority of law or in exercise of executive power without<\/p>\n
        making of law.       The State cannot, therefore, act arbitrarily in<\/p>\n
        entering into relationship, contractual or otherwise with a third<\/p>\n
        party, but its action must conform to some standard or norm which<\/p>\n
        is rational and non-discriminatory.”\n<\/p>\n
Learned counsel for the petitioner has rightly relied upon the above dictum<\/p>\n
to contend that the argument raised by respondents 5 to 8 that respondents 2<\/p>\n
and 3 have got unfettered discretion in granting permission for opening the<\/p>\n
tourist resort at Bangaram and Thinnakara and which cannot be called in<\/p>\n
question at all, is not acceptable.\n<\/p>\n
      42. The question whether discretion available to any public authority<\/p>\n
is unlimited or it confines to certain limits, was considered by the Apex<\/p>\n
Court in Delhi Transport Corporation v. D.T.C. Mazdoor Congress and<\/p>\n
WA<\/a> 985, 1117
\n& 1215\/2008                           -51-<\/span><\/p>\n
others (AIR 1991 SC 101). Their Lordships laid down the test in para 276<\/p>\n
in the following words:\n<\/p>\n
        “In this context it is important to emphasise that the absence of<\/p>\n
        arbitrary power is the first essential of the rule of law upon which<\/p>\n
        our whole constitutional system is based. In a system governed by<\/p>\n
        rule of law, discretion, when conferred upon executive authorities,<\/p>\n
        must be confined within defined limits. The rule of law form this<\/p>\n
        point of view means that decisions should be made by the<\/p>\n
        application of known principles and rules and, in general, such<\/p>\n
        decisions should be predictable and the citizen should know where<\/p>\n
        he is. If a decision is taken without any principle or without any rule<\/p>\n
        it is unpredictable and such a decision is the antithesis of a decision<\/p>\n
        taken in accordance with the rule of law.”\n<\/p><\/blockquote>\n
In Shiv Sagar Tiwari v. Union of India and others<\/a> {(1997) 1 SCC 444}<\/p>\n
their Lordships reiterated the position and in the words of Hansaria, J.,<\/p>\n
even a Minister cannot claim unfettered discretion. Speaking for the Bench,<\/p>\n
His Lordship laid down the principle in the following words:<\/p>\n
      “The administrative law has of late seen vast               increase in<\/p>\n
      discretionary powers. But then, the discretion conferred has to be<\/p>\n
      exercised to advance the purpose to subserve which the power exists.<\/p>\n
      Even the Minister, if he\/she be the repository of discretionary power,<\/p>\n
      cannot claim that either there is no discretion in the matter or<\/p>\n
      unfettered discretion.”<\/p>\n
WA 985, 1117
\n& 1215\/2008                          -52-<\/span><\/p>\n
We respectfully follow the same and reject the arguments raised by<\/p>\n
respondents 5 to 8 that respondents 2 and 3 had an unfettered discretion in<\/p>\n
granting the permission based on the application and project submitted by<\/p>\n
the 5th respondent. It is a settled proposition of law that when an action is<\/p>\n
impugned as arbitrary, it will have to be satisfied whether any discernible<\/p>\n
principle emerges from the impugned action and whether it really satisfy the<\/p>\n
test of reasonableness. It is also well settled that when a statute, rule or<\/p>\n
scheme, etc. provides for a particular mode of doing things, other modes are<\/p>\n
excluded. When the prescribed mode is given a go-bye, such a deviation<\/p>\n
could be supported only by any discernible principle which is reasonable.<\/p>\n
Otherwise, the action will be held as totally arbitrary and illegal. It is well<\/p>\n
settled that any action by the State has to be informed by reason and when<\/p>\n
the action is unsupported by any reason, it will be termed as per-se illegal<\/p>\n
and arbitrary. In this case, as is evident from the pleadings Ministry of<\/p>\n
Tourism, Govt. of India or the Island Development Authority and other<\/p>\n
Ministries were not involved in the grant of permission to respondents 5 to<\/p>\n
7, which was mandatory as per the prescribed procedure. The clearance by<\/p>\n
the Ministry of Environment and Forest cannot substitute a rational<\/p>\n
assessment of the project and adoption of proper procedure.                The<\/p>\n
WA 985, 1117
\n& 1215\/2008                         -53-<\/span><\/p>\n
Department of Tourism of the Union Territory of Lakshaweep was having<\/p>\n
only an Ex-officio Director without any senior officers in Class A or Class<\/p>\n
B for manning his office. Only Group C and Group D employees were<\/p>\n
there. This is clear from the materials discussed in Ext.P39 at its internal<\/p>\n
page 262. Going by the standards        laid down    by   the Lakshadweep<\/p>\n
Administration itself in Ext.P18, the projects should conform to<\/p>\n
environmental, security and other concerns. Therefore, these tests would<\/p>\n
require support by way of proper policy and providing the benefit after<\/p>\n
inviting global tenders to ascertain the merit and other factors relevant of<\/p>\n
the entrepreneur. All those have been given a go-bye by the Lakshadweep<\/p>\n
Administration here. Monopoly rights in perpetuity have been created, that<\/p>\n
too ignoring interests of the Government concerned and without any<\/p>\n
benefits to them. It is totally arbitrary, discriminatory and against public<\/p>\n
interest.\n<\/p>\n
      43. Learned counsel for the petitioner had also relied upon the<\/p>\n
decision of the Apex Court in M.I. Builders Pvt. Ltd. v. Radhey Shyam<\/p>\n
Sahu and others (AIR<\/a> 1999 SC 2468). Our attention was invited to the<\/p>\n
principles laid down in paragraphs 80 and 81 (page 2504 and 2505), while<\/p>\n
considering the challenge against permission granted for M.I. Builders for<\/p>\n
WA 985, 1117
\n& 1215\/2008                          -54-<\/span><\/p>\n
establishing a public park and underground shopping complex in the park.<\/p>\n
After examining the question whether it amounts to fraud on power and<\/p>\n
whether public interest has been sacrificed in the entire matter, their<\/p>\n
Lordships held that “judicial review is permissible if the impugned action is<\/p>\n
against law or in violation of the prescribed procedure or is unreasonable,<\/p>\n
irrational or mala fide.” Their Lordships further examined the question<\/p>\n
whether the selection of one builder alone could be justified. It was<\/p>\n
observed that “no attempt made whatsoever to consider if there was any<\/p>\n
other person more competent for the job or if of equal competence could<\/p>\n
offer better terms.” This test, according to us, is squarely applicable to the<\/p>\n
facts of this case also.\n<\/p>\n
       44. Therefore, going by the dictum laid down in the above decisions,<\/p>\n
we hold that Exts.P16 to P17(a) cannot be supported in law. The argument<\/p>\n
that wide discretion has been conferred on respondents 2 and 3, cannot be<\/p>\n
accepted at all, because they are distributing largess and it cannot be done<\/p>\n
so without conforming to any reasonable standards and following a fair<\/p>\n
procedure.\n<\/p>\n
       45. Learned counsel appearing for the appellant in W.A.No.985\/2008<\/p>\n
contended that the view taken by the learned Single Judge while quashing<\/p>\n
WA 985, 1117
\n& 1215\/2008                           -55-<\/span><\/p>\n
Exts.P16 and P17(a) as regards the resort at Bangaram, is not correct. It is<\/p>\n
submitted that as far as the island at Bangaram is concerned, the writ<\/p>\n
petitioner, if interested, could procure other land for the project. We are not<\/p>\n
impressed by the above argument.         As far as Bangaram is concerned,<\/p>\n
already there is one existing project and the project now permitted as per<\/p>\n
Exts.P16 and P17(a) is the only other project that is offered for operators to<\/p>\n
establish resorts. Therefore, at any rate, the petitioner cannot on his own,<\/p>\n
put forth any proposal without any project being envisaged by the Planning<\/p>\n
Commission itself. Therefore, there is nothing that separates the project at<\/p>\n
Bangaram with the one proposed at Thinnakara and no distinguishing<\/p>\n
features are available. As already held by the learned Single Judge, the<\/p>\n
entire procedure as far as the project at Bangaram was not transparent and<\/p>\n
the learned Judge has quashed the said orders. We do not find any reason to<\/p>\n
interfere with the same. In the light of the view taken by us, we are not<\/p>\n
examining the allegations of mala fides raised in the writ petition.<\/p>\n
      Hence, we dismiss W.A.Nos.985\/2008 and 1215\/2008 and,<\/p>\n
W.A.No.1117\/2008 stands allowed. W.P.(C).No.28200\/2006 is allowed as<\/p>\n
prayed for and Exts.P16 to P17(a) are quashed. There will be a further<\/p>\n
direction to respondents 1 to 4 to take a fresh decision, in accordance with<\/p>\n
WA 985, 1117
\n& 1215\/2008                        -56-<\/span><\/p>\n
the Policy, after inviting bids by global tenders and after considering all<\/p>\n
applications. No costs.\n<\/p>\n<\/p>\n
                                         ( P.R.Raman, Judge.)<\/p>\n
                                   (T.R. Ramachandran Nair, Judge.)<\/p>\n
kav\/<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court M\/S.B’Canti Group Of Hotels & … vs A.B.Hussian Manikfan on 14 November, 2008 IN THE HIGH COURT OF KERALA AT ERNAKULAM WA.No. 985 of 2008() 1. M\/S.B’CANTI GROUP OF HOTELS & RESORTS(P) … Petitioner Vs 1. A.B.HUSSIAN MANIKFAN,”REMEDU GANDUVAR” … Respondent 2. THE UNION OF INDIA, REPRESENTED BY THE 3. UNION TERRITORY […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-231591","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nM\/S.B'Canti Group Of Hotels & ... vs A.B.Hussian Manikfan on 14 November, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ms-bcanti-group-of-hotels-vs-a-b-hussian-manikfan-on-14-november-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M\/S.B'Canti Group Of Hotels & ... vs A.B.Hussian Manikfan on 14 November, 2008 - 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