M.L. Pendse, J.
1. Eighteen officers working in the Revenue and Forest Department of the Government of Maharashtra headed by D.V. Mathure, Under Secretary, addressed a latter dated June 5, 1972 to the Secretary, Revenue and Forest Department, Government of Maharashtra, requesting for an allotment of a Government land Survey No. 111/D of Ambivali at Andheri for the proposed co-operative housing society. The letter inter alia stated that the Officers propose to form a housing society comprising exclusively of persons working in the Revenue and Forest Department. The housing society known as Saptashringi Co-operative Housing Society Ltd. was duly registered on June 16, 1973 under the provisions of the Maharashtra Co-operative Societies Act, 1960. The bye-laws of the Society are produced on record by the petitioners with the consent of the respondents, and are marked as 'X'. Bye-law 6 deals with the issue of membership and provides that all persons permanently residing in Bombay city and Suburban area and who have signed the application for registration are original members. It further provides that other members shall be elected by the General Body and every person applying for membership shall deposit the entrance fee and the value of at least five shares which he shall receive on his enrolment as a member.
2. On October 25, 1972 the Government of Maharashtra passed a Resolution bearing No. ICB. 2672/132491-BI allotting Government land comprising of one plot admeasuring 810 sq. metres from Survey No. 141-A in Ambivali, Andheri for the purpose of Saptashringi Co-operative Housing Society Ltd. consisting of employees of the Revenue and Forest Department for construction of residential buildings. A list of members was appended to the Resolution. The Resolution further provides that the grant will be subject to the terms and conditions prescribed in the Government Resolution dated April 23, 1965.
3. Shri D.V. Mathure, the Under Secretary in the Revenue and Forest Department, addressed a letter dated June 14, 1973 to the Secretary to the Government of Maharashtra, Revenue and Forest Department, pointing out that the plot at Ambivali is at a considerable distance from Andheri Railway Station and it will cause considerable hardship to the member of the Society if the houses are constructed on the plot. The letter further recites that most of the members are having accommodation and though they would like to have an ownership flat with the aid of the Government's assistance the plot at Andheri is not convenient, and requested that another suitable plot should be allotted. The letter mentions that some of the members realising the hardship to be undergone at Ambivali have ceased to be the members of the Society. The letter further states that one plot out of Survey No. 341, Bandra (East) in the Bombay Suburban Division is available and the said plot adjoining the land granted to the Patrakar Co-operative Housing Society and in front of the land granted to Guru Nanak Hospital would be very convenient to the members. The request was, therefore, made that 2,000 sq. yards of land be granted out of the plot at Bandra to enable the Society to accommodate more colleagues in the Department, some of whom are on the waiting list. In pursuance of the request made by the Society, the Revenue and Forest Department issued a Memorandum dated December 24, 1973. The Memorandum inter alia provides that an area of 1,000 sq. yards out of Survey No. 341 (part), Bandra should be granted to the Saptashringi Co-operative Housing Society Ltd. and the remaining area of 1,000 sq. yards should be granted to another Society known as Kala Bhushan Co-operative Housing Society, which was also formed by the Government employees. The Additional Collector, Bombay Suburban District, was directed to take action as set out in the Memorandum. It would be a appropriate to set out the relevant portion of the set Memorandum.
4. Indu Hari Co-operative Housing Society (Proposed) and Saptashringi Co-operative Housing Society.
The Indu Hari Co-operative Housing Society (Proposed) has now changed its name to Kala Bhushan Co-operative Housing Society. It has been decided by Government that requests to both the Kala Bhushan Co-operative Housing Society (Proposed) and Saptashringi Co-operative Housing Society should be granted land from the available area of 2806 square yards out S. No. 341 (Part), Bandra by giving them area of 1000 square yards each and by utilising the balance area of 806 square yards as common approach to both the Societies by the side of the compound of the Art Students 'Hostel. The Additional Collector, Bombay Suburban District should, therefore, take action in this respect, as follow :
(A) The area of 2806 square yards should be demarcated and two blocks of 1000 square yards each, leaving the balance area of 806 square yards for common approach, should be left out.
(B) The Saptashringi Co-operative Housing Society Ltd., has requested Government to give advance possession of the land. It has been decided that the request should be agreed to and advance possession of the area, measuring 1000 yards, should be given to this Society subject to the following conditions :
(i) The Society should surrender to Government immediately and unconditionally the plot bearing No. 144 out of S. No. 141 of Ambivali, granted to it earlier.
(ii) The Society should deposit an advance of Rs. 300/- with the Additional Collector, Bombay Suburban District immediately in addition to Rs. 1.120 paid by it for Ambivali plot.
(iii) The Society should give an undertaking to the Additional Collector, Bombay Suburban District to the effect :
(a) It will pay immediately the balance of the occupancy price for the land at Bandra, if the total cost of this land exceeds Rs. 4,120/-;
(b) It will also pay to Government interest of 6-1/2% per annum over and above the difference in the cost of land which the Society might be required to pay as indicated in (a) above;
(c) It will abide by the terms and conditions of grant of land at Bandra which will be imposed in due course;
(d) It will submit to Government for approval the names and particulars of the additional members who can be accommodated in the land taking into account the increased Floor-Space-Index applicable to the area;
(e) It will submit to the Bombay Municipal Corporation the building plans for approval within three months from the date of taking over possession of land and that it will construct the multi-storeyed buildings within a period of 2 years from the date of taking over possession of land failing which the land will be liable for resumption without payment of any compensation or damages.
(C) After taking action to give advance possession of land to Saptashringi Co-operative Housing Society, the Additional Collector, Bombay Suburban District should submit to Government the present market valuation of land as determined by the Officer of the Town Planning Department and the information about the maximum numbers of members who can be accommodated in this land taking into account the latest Floor-Space-Index applicable to the area. Thereafter final orders will be issued by Government.
5. The case papers are returned herewith.'
It is not in dispute that in pursuance of this Memorandum, Saptashringi Co-operative Housing Society surrendered the plot at ambivali and secured the possession of the plot at Bandra. In pursuance of the Memorandum, Shri T.L. Goray, Secretary of the Society, gave the requisite undertaking. The Society decided to put up a construction on the plot and 20 members were enrolled as the tenements to be constructed were 20 in number. The construction could not proceed with expediency, probably because the members were unable to secure the loan promised by the Government Authorities, with the result that some of the members left the Society and secured accommodation in some other societies. In November 17, 1975 the petitioners, who are not employed within the Government or in the Revenue and Forest Department, learnt that membership is available in the Society and thereupon requested that they should be enrolled as members. On November 17, 1975 the Secretary informed the petitioners that they would be enrolled as members if they satisfy the requisite conditions and subject to the approval of the Society and the Government. The petitioners, accordingly filed the requisite applications and were enrolled as members on March 29, 1977 subject to the approval of the Government. The petitioners thereafter contributed substantial amounts for the construction of the houses in which each of them were entitled to obtain a flat. Petitioner No. 1 paid an amount of approximately Rs. 78,000/- while petitioner Nos. 2 and 3 paid an amount of approximately Rs. 96,000/- and Rs. 53,000/- between the years 1975 and 1980, and the building became complete in April 1981. Three flats in the building admeasuring 678 sq. ft., 869 sq. ft., and 478 sq. ft., were earmarked for petitioners Nos. 1 to 3 respectively.
4. While the building was under construction, the Secretary of the Society had requested the Government to grant approval for enrolling about 10 new members and the Government on September 27, 1979 granted approval for enrolment of six members and directed that necessary orders are regards approval of remaining four members, including those of the petitioners will be issued shortly. The Government by letter dated December 10, 1979 addressed to the Society, declined to grant approval to the membership of the three petitioners on the ground that they were not Government servants. The General Body meeting of the Society was held on February 9, 1980 and the General Body was of conscious opinion that the petitioners though not Government servants, have contributed almost full costs of the blocks proposed to be allotted to them and the Government should grant approval to them as members of the Society for the reasons (1) no conditions have been laid down as regards acceptance of members (2) the nearer society, i.e. Kala Bhushan Co-operative Housing Society was allotted land along with this Society. Orders allotting land have been issued for both Societies in one and the same order. This Kala Bhushan Society has been allowed by the Government to enrol as its members non-government servants and (3) the contribution of the petitioners has helped the Society to bring up the construction work to the present stage. The General Body therefore, resolved that the matter regarding approval should again be referred to the Government giving the above details. Inspite of this unanimous resolution, the Government by its letter dated February 18, 1980 turned down the request of the petitioners and the Society to enrol them as members. The letter dated February 18, 1980, a copy of which is annexed as Exhibit 'M' to the petition, recited that the Government is of the view that the membership should be confined only to the Government servants and that too employees of the Revenue and Forest Department and none others, and the Government further directed the Society to furnish the names of the three Government servants in the place of three petitioners who are non-government servants and whose names should be omitted from the membership register. Certain correspondence took place between the petitioners on one hand and the Secretary of the Revenue Department on the other, but as the petitioner failed to secure any favourable response, on March 28, 1980 the petitioners addressed an appeal to the Governor of Maharashtra. The Secretary to the Governor forwarded the representation to the Revenue and Forest Department for consideration. The Additional Desk Officer, Revenue and Forest Department addressed a letter dated April 16, 1980 to petitioner No. 1 stating that the land was given to the society for accommodating Government servants and there is no dearth of Government servants willing to join as members. The letter further claims that inspite of it the Society purported to enrol the non-government servants in the year 1976 and for three years no reference was made to the Government. The Government, it is claimed, felt that the action of the Society was wrong and approval cannot be granted. The petitioners thereafter filed the present petition in this Court on April 22, 1980 seeking a writ of mandamus directing respondent Nos. 1 and 2 to approve the names of the petitioners as members of the respondent No. 3-Society.
5. The petitioners claim that the approval has been withheld by the Government on a totally unreasonable and unsustainable ground. The petitioners further claim that the action of the Government violates provisions of Article 14 of the Constitution of India as the Government has given approval to non-government employees in regard to the houses built by Kal Bhushan Co-operative Housing Society. The petitioners also claim that the conditions of grant do not provide that the membership can be granted only to the Government Employees. In answer to the petition, Shri R.G. Vartak, Assistant Secretary, Revenue and Forest Department, has filed a return sworn on April 4, 1981. By this return it is claimed that admission of a member to the Society depends upon the approval of the Government and as the land was granted to the Society consisting of only Government employees working in the Revenue and Forest Department, the Government was justified in refusing approval to the members who do not belong to the Revenue and Forest Department and are also not employees of the State Government. Shri Vartak claims in the affidavit that he is not aware as to whether the non-Government employees were enrolled as members of the Kala Bhushan Co-operative Housing Society and whether the Government has given approval to such enrolment. Shri Vartak had to concede in the affidavit that in respondent No. 3-Society some of the members to whom the allotment is made and to whom approval was given by the State Government are not employees working in the Revenue and Forest Department but are employees of the Central Government. The affidavit asserts that though the main object of formation of Society was to allot residential flats to the employees of the Revenue and Forest Department, there was no bar to accept the employees from other Departments of the State Government or even employees of the Central Government.
6. The short question which falls for determination is whether the action of the Government in withholding the approval to the membership of the three petitioners is justified on the facts and circumstances of the case. The facts set out hereinabove clearly establish that initially the State Government allotted the land at Ambivali to enable the employees of the Revenue and Forest Department to construct residential buildings for accommodating its members, and it is equally cleat hat initially the members of the Society were only the officers working in the Revenue and Forest Department. The land at Ambivali was found unsuitable and the grant of land at Ambivali was cancelled and the Society surrendered the said land and secured another land at Bandra. The memorandum dated December 24, 1973, the relevant portion of which is quoted hereinabove, clearly recites that the Society had to give an undertaking to pay the occupancy price of the land at Bandra which was in excess of the occupancy price paid for the land at Ambivali. Clause (c) provides that the Society will abide by the terms and conditions of grant of land at Bandra which would be imposed in due course. Shri Parkar, appearing for respondents No. 1 and 2. very fairly stated that no terms and conditions were settled after the date of Memorandum by respondent Nos. 1 and 2. Clause (a) provides that the Society will submit to the Government for approval the names and particulars of the additional members who can be accommodated taking into account the increased floor-space index. The Society secured additional floor-space index by obtaining the land at Bandra by paying additional price and it was open for the Society to enrol additional members. The clause only requires that the Society should secure an approval of the names and particulars of the additional members. It is not in dispute that large number of original members left the Society either because they found another suitable accommodation or they were no longer interested in securing tenements. The construction of the building on the plot at Bandra could not be expedited for several reasons, and the petitioners were accepted as members by the society. The bye-laws of the society did not provide that the members to be enrolled should be in the employment with the State Government. The Memorandum nowhere provides that the Government would grant approval provided the members, who want to enrol are employees of the Government and that too in the Revenue and Forest Department. In these circumstances Shri Walavalkar is right in his submission that it is not permissible for the Government to withhold the approval solely on the ground that the petitioners are not employees in the Government Departments and more so in Revenue and Forest Department. It is undoubtedly true that the Government approval is required for enrolment of additional members, but as the Memorandum did not set out the terms or conditions on which the approval has to be granted or withheld, the Government is not entitled to withhold the approval for the reason which is totally extraneous to the object of formation of the Society. The object of grant of Government land was to form a co-operative housing society and provide for accommodation to people who were without any shelter, it is possible that the land was granted on an application made by the Government employees working in the Revenue and Forest Department, but that does not make difference to the fact that the object of the Society was to construct the houses. The Government is entitled to withdraw or refuse the approval if the member desirous of joining the Society requires the premises not for the purpose of housing but for some other activities. It is equally open in a given case to refuse approval if the proposed member has got accommodation at some other place in Bombay, but the reasons which may prompt the Government in withholding approval must have some reasonable nexus to the object of formation of the co-operative housing society. The reason that the proposed member is not an employee working in the Revenue and Forest Department of the Government is totally foreign to the object in forming the Society and respondent Nos. 1 and 2 were clearly acting arbitrarily and unreasonably in withholding the approval. The refusal to grant approval to the petitioners solely on the ground that they are not employees of the Government cannot be sustained.
7. The submission of Shri Walavalkar that the Government has acted not only arbitrarily but has discriminated between Saptashringi Co-operative Housing Society and the Kala Bhushan Co-operative Housing Society also requires acceptance. The petitioners have specifically claimed that Kala Bhushan Co-operative Housing Society was formed initially by the employee of the State of Maharashtra and subsequently additional members who are not employees of the State of Maharashtra were enrolled and the Government granted approval. The specific averments made in the petition were not denied in the return filed by Shri Vartak, but what is claimed in paragraph 18 is that Shri Vartak is not aware that four members of the society are not Government employees. In my judgment, respondent Nos. 1 and 2 have deliberately withheld the information which was exclusively within their knowledge just to overcome the objection raised by the petitioners. On the material available on record, I have no hesitation in concluding that respondent Nos. 1 and 2 did grant approval to the members of the Kala Bhushan Co-operative Housing Society inspite of the fact that they were not Government employees. In my judgment, the action of respondent Nos. 1 and 2 in refusing the approval to the petitioners was clearly discriminatory and violative of the petitioners' fundamental rights guaranteed under Article 14 of the Constitution of India.
8. There is one more aspect in this connection which cannot be overlooked. The stand taken by respondent Nos. 1 and 2 was that the Government would grant approval to members provided they are employees of the State Government and are working in the Revenue and Forest Department. In the first instance, it is difficult to appreciate how an employee working in the Revenue and Forest Department can claim special rights and privileges with the Government of Maharashtra . It is well known that the employee working with the State Government are transferred from one Department to another and merely because of a fortuitous circumstance that the employee is working in Revenue and Forest Department he cannot claim better advantage over the other employees. Even otherwise it is difficult to appreciate why if this was the policy decided by the Government, then some of the Central Government employees were permitted to be enrolled as members of the Saptashringi Co-operative Housing Society and their membership was approved by the Government. It seems that the Government had not framed any policy in this connection and the decision is taken from time to time to suit the particular person. In my judgment, in absence of any condition in the Memorandum that the approval would be given only if the proposed member is a Government employee, it is not permissible for respondent Nos. 1 and 2 to take this ground into consideration and refuse the approval. The action of respondent Nos. 1 and 2 is neither sustainable in law nor justice and requires to be quashed.
9. By an interim order passed by Mr. Justice Rege on January 25, 1982, respondent No. 3 Society was permitted to put the petitioners in possession of the respective flats on the petitioners' undertaking that they along with the families will remain in occupation and in the event of their failure in the petition they will forthwith hand over vacant and peaceful possession to the Society and would abide by the Government's action in the matter. In accordance with the interim order, the petitioners did give an undertaking and have entered the possession of their respective flats. As the petitioners have succeeded in the petition, it is necessary to relieve them of their undertaking and to continue their possession of the respective flats with a direction to respondent No. 1 and 2 to grant the requisite approval within a month from today.
10. Accordingly, Rule is made absolute and respondent Nos. 1 and 2 are directed to grant approval to the names of the petitioners as the members of Saptashringi Co-operative Housing Society Ltd. within a period of one month from today. The petitioners are entitled to remain in occupation of that flats given in possession in accordance with the interim order of this Court and each of the petitioners is relieved of the undertaking given at the time of entering the possession.
Respondents Nos. 1 and 2 shall pay the costs of the petitioners.