1. The facts and questions of law in these two petitions are the same. A common judgement.
2. This is a public interest litigation initiated by two social workers. A special scheme was framed under the Goa, Daman and Diu Housing Board (Registration, Allotment and Sale of Plots) Regulations, 1982. Under this special scheme certain plots admeasuring 400 to 500 square metres in Provision were allotted to M.Ps., Ex-M.Ps., M.L.As., Ex-M.L.As., and their widows at Rs. 43/- per square metre as against the prevalent market price said to range between Rs. 250/- to Rs. 300/- per square metre. It is this special scheme and allotment which are challenged in these writ petitions.
3. At the outset, a broad reference to the relevant provisions of the Goa, Daman and Diu Housing Board Act, 1968 and Regulations of 1982 is pertient. The preamble says that the Act is to provide for the establishment of a Housing Board in the Union Territory of Goa, Daman and Diu and the matters connected tnerewith. Section 29 pertains to matters to be provided for in housing, improvement or building schemes, one of them being provisions of accommodation for any class of inhabitants. Section 30 provides for types of housing, improvement or building schemes, one of them being a land development scheme. Section 37 empowers the Board whenever it is of opinion that it is expedient to provide building sites in any area, to frame a land development scheme. The Board is empowered to lease out or sell by Outright sale or on hire-purchase basis the building site in the scheme area. Section 129 empowers the Board to make regulations not inconsistent with the Act for the purpose of giving effect to the provisions of the Act.
4. Accordingly the Regulations of 1982 were framed 'regarding the allotment of sites/tenements by the Housing Board'. Reg. 1(2) provides that the regulations shall apply to registration of intending purchasers of plots developed by the Board for construction of residential house/flat/bungalow. Reg. 3 lays down the conditions of eligibility. Sub-clause (3) provides that only those persons whose annual income exceeds Rs. 4.200/- but does not exceed Rs. 30,000/- shall be eligible, to apply for registration. Reg. 4 provides for reservation of plots for persons belonging to different categories namely: -
(i) Scheduled Castes/Scheduled Tribes and otherbackward classes ... ... ... 2%(ii) Freedom Fighters ... ... ... 1%(iii) Existing and ex-members of Parliament/M.LAs.and Ex-M.L.As. ... ... ... 2%(iv) Ex-Servicemen- - including personnel of Para-military forces and widows of defence personnel killed in action ... ... ... 1%(v) Blind and physically handicapped persons ... 1%
Reg. 5 provides for advertisement in local newspapers inviting applications for registration of plots. Reg. 12 pertains to 'Other Conditions'; Sub-clause (c) gives power to the Board to devise a special scheme for allotment of plots to certain classes of persons.
5. On behalf of the petitioners their learned Counsel Mr. Kakodkar formulated five grounds of challenge. (A) Reg. I2(c) is ultra vires the powers exercisable by the Board or Government under Section 129 of the Act. (B) As reg. 4 had expressly provided for reservation of plots for a certain class of persons, reg. 12(c) cannot be construed as authorising a special scheme for the same class set out in reg. 4. (C) The special scheme contravenes reg. 3(3). (D) The special scheme was not approved by Government as required by reg. 12(c) and (E) The special scheme violates Article 14 of the Constitution.
6. Grounds (A) and (B) can be taken together. I do not agree with the generality of Mr. Kakodkar's first ground of challenge. Nor do I agree with the second ground of challenge. Reg. 12(c), in so far as is material to the present petitions reads thus: -
The Board may devise a special scheme for allotment of plots to... and such other classes of persons as may be decided from time to time after obtaining prior concurrence of the Government.
If indisputably under Section 29(1) of the Act, the Board can make a general scheme providing for 'accommodation for any class of inhabitants', there is no reason why the Board cannot devise a special scheme merely because that class may fall within Section 29(1). Provided of course, the special scheme must have a rational nexus to the object sought to be achieved by the Act. If there is no such nexus, it is the special scheme that would be liable to challenge as in these petitions. But not the vires of Sub-clause (c). Mr. Kakodkar's first two grounds of challenge are repelled.
7. There is also no merit in Mr. Kakodkar's third contention that the special scheme contravenes reg. 3(3). It does not. Reg. 3 applies to general schemes end not to special schemes.
8. So also there is no merit in Mr. Kakodkar's fourth contention that the special scheme has not been approved by Government as required by reg. 12(c). An assertion to the contrary is made by the then-Administrator of the Board in his affidavit-in-reply. This is corroborated by a letter dated December 18, 1982 from 'he Under Secretary (Revenue) to the Secretary, Housing Board. None of this is impeached by the petitioners in any affidavit-in-rejoinder. There is no reason to assume, and none was suggested, why the then-Administrator's assertion on oath corroborated by documentary evidence, should not be accepted as correct.
9. Finally to Mr. Kakodkar's challenge that this special scheme violates Article 14 of the Constitution. I draw on the principles laid down by the Supreme Court in Budhan Choudhry v. State of Bihar : 1955CriLJ374 , reiterated in Ram Krishna Dalmia v. Justice Tendolkar A.I.R  S.C. 547 : (1958) 61 Bom. L.R. 192. These principles are as under: -
(A) While Article 14 forbids class legislation it does not forbid reasonable classification for the purpose of legislation.
(B) The classification must be founded on intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group,
(C) That differentia must have a rational relation to the object sought to be achieved by the statute in question and
(D) There must be a nexus between the basis of the classification and the object of the Act under consideration.
10. With these principles in the forefront, the first question that arises is whether the present classification of M.Ps. and M.L.As., is reasonable. Next is there an intelligible differentia which distinguishes M.Ps. and M.L.As. from others left out of the group. Thirdly, does that differentia qua M.Ps. and M.L.As. have a rational relation to the object sought to be achieved by the Act. And finally, is there a nexus between the basis of the present classification of M.Ps. and M.L.As. and the object of the Act.
11. I fear all these four questions must be answered in the negative. It is true M.Ps. and M.L.As. are worthy persons. They hold forth in their forum. They make our laws. They discharge their functions for the common weal. In short, they do the world of good in their sphere. Fair enough. But then so do others in their own sphere, in a full time capacity. Doctors, lawyers, social workers, engineers, artists, scientists, mathematicians to name a few. Modesty forbids me to say judges. Hence, pray what is the measure of reasonableness of the classification of M.Ps. and M.L.As. as a special class to be the beneficiaries of the special scheme which gives them plots admeasuring 400 to 500 square metres at a throw-away price of Rs. 43/- per square metre? Frankly, I see none. In the same strain, pray what is the intelligible differentia on which this classification of M.Ps. and M.L.As is founded and which distinguishes them from others left out? Frankly, 1 see none.
12. The question that next arises is whether there is any rational relation to the object sought to be achieved by the Act. Is there any nexus between the basis of this classification and the object of the Act?
13. What is the object of the Act? In this context, both parties relied on the Statement of Objects, and Reasons. On behalf of the petitioners it was urged that the Statement shows that the Act was promulgated not for the benefit of the affluent but for the benefit of the have-nots and weaker section of society. On the other hand, on behalf of the respondents it was urged that the Statement made no such distinction, as the object of the Act was to provide housing accommodation to all and sundry irrespective of their status or means.
14. The Statement of Objects and Reasons says: -
The object of the Bill is to provide for the setting up of a Statutory Housing Board...so as to take up on an ambitious scale a programme of providing industrial and rural housing and residential accommodation to meet the acute shortage of housing accommodation and the growing development needs of this territory.
There was no housing activity worth the name in the pre-liberation period. Taking note of the deficiency in Housing accommodation...in Goa,..Government should take steps to improve housing shortage by launching Housing Schemes, Slum Clearance, Low Income Group, Middle Income Group, Subsidised Industrial Housing Schemes etc....
15. Coming to the Act itself, the preamble says it is to provide for the establishment of a Housing Board in the Union Territory of Goa, Daman and Diu and for matters connected therewith. Section 29 provides that the Board shall devise housing, improvement and building schemes for a number of matters one of them being accommodation for any class of inhabitants. The Board shall also collect such information and statistics as may be necessary for the purposes of the Act. It is empowered to make a scheme making provision for schools, parks, dispensaries, hospitals, swimming pools, cinema houses, restaurants. It shall also provide for any other matter which in the opinion of Government, it is expedient to make provision with a view to providing housing accommodation and for the improvement of any area comprised in the scheme or of any adjoining area for the general efficiency of the scheme. Under Section 31 the Board is entitled to frame a housing accommodation scheme whenever the Board is of the opinion that it is expedient or necessary to do so in order to meet the needs for housing accommodation in any area. Under Section 53, the Board is empowered to acquire land needed for a housing scheme by agreement with the owner and pay compensation to the owner. The Board is also authorised to compulsorily acquire any land or interest therein for the execution of a housing, improvement or building scheme in the manner provided by the Land Acquisition Act, 1894.
16. There is no doubt in my mind, that the very purpose with which the Board was started and the object of the Act was to develop housing activity by devising various schemes, not for the benefit of the affluent and well-off who could fend for themselves by acquiring plots in the open market, but for the benefit of the have-nots and weaker sections of society who could not possibly afford the soaring market land prices, Reg. 1(2) itself envisages development of the plots by the Board for construction of residence. Can it ever be suggested that the Board is to indulge in this expensive exercise of plot development for the benefit of the affluent? This I believe needs no answer. It may well be that the Board has the power to reserve plots for persons belonging to certain categories and frame a special scheme for them, to wit, Scheduled Castes/Tribes and other backward classes, freedom fighters, ex-servicemen and widows of those killed in action and the blind and physically handicapped set out in reg. 4. I express no opinion, for in these proceedings 1 am not called upon to do so. Be that as it may, in this scheme of things where the Act is intended to come to the rescue of the weak and the hapless by improving housing facilities otherwise beyond their reach, pray where do M.Ps. and M.L.As. come in? They stand out in reg. 4 like a sore thumb.
17. Mr. Rebello, one of the allottee-respondents says that as Section 29(1) makes provision for 'accommodation for any class of inhabitants', hence M.Ps. and M.L.As. would fall within that 'class'. The answer is simple. In Section 29(1), class must comprise of such sections of the public having a common feature, such as income. Mr. Rebello cannot be heard to rejoin by saying that M.L.As. in Goa have less amenities than their counterparts elsewhere and get an honorarium only of Rs. 450/- per month. At the same time he does not deny that this is not their sole source of livelihood, having other sources of income from their main activities like law, medicine, and business.
18. On behalf of the Board, the price of Rs. 43/- per square metre was sought to be justified by its learned Counsel Mr. Dessai, He says that 60,000 square metres of land had been acquired for Rs. 5.25 per square metre. Out of that land, in 1981-82 four plots were allotted to the Board Members and two plots to the staff members at Rs. 45/- per square metre; in 1982, 12 plots were allotted to journalists accredited to Government. Thus does the Board extol its virtue in allotting the present plots to M.Ps. and M.L.As. at even a lesser rate namely Rs. 42/- per square metre. I express no opinion. I am not required to do so. The Board is not a profit making body, pontificates learned Counsel.
19. I should hope not and it is heartening to be told that it is not. Yet I see nothing meritorious in these solemn protestations, benefit being conferred as it is, on this special class, at the cost of those for whose benefit the Act was made. It is not without its own cynicism that the reservation of plots to ex-servicemen and widows of defence personnel killed in action and the blind and handicapped and freedom fighters is a niggardly 1% in contrast to the reservation in favour of M.Ps. and M.L.As. at 2%. This cynicism is compounded by the Board's protestation that once the M.Ps. and M.L.As. benefit from the special scheme, they would be excluded from getting another plot under a general scheme. Highly gratifying. But the paramount question is, are they at all entitled to the benefit of the special scheme. They are not. And that is the end of the matter.
20. To say, as does Mr. Dessai, that the petitioners have not established that the land prices in the open market are between Rs. 250 to Rs. 300 per square metre is futile. Even if the petitioner's experts' valuation reports are ignored, judicial notice can certainly be taken that the market prices of land are at least four times higher than the throw-away rate of Rs. 43 per square metre at which the M.Ps. and M.L.As, have been allotted the plots.
21. I entirely agree with Mr. Rebello and Mr. Dessai when they say that the object of the Act and the purpose of the Board is to make allotments at concession rates. But then pray to whom? And who has received the benefit of the Board's generosity? The weaker sections of society for whose benefit the Act was made? No. The M.Ps. and M.L.As.
22. It is meaningless for the Board and Government to harp on the fairness with which the allotments were made to the present respondent-allottees out of the several applications received from this class. It is not the fairness of this exercise that is in question but the principle.
23. It is impossible to come to the conclusion that the present classification is reasonable or that there is any rational relation between this special class and the objects sought to be achieved by the Act or that there is any nexus between the basis of this classification and the object of the Act. None of the prerequisites laid down by the Supreme Court are fulfilled. The Act is intended for the tattered dress and shoeless heel. The inclusion of M.Ps. and M.L.As. past or present by way of Sub-clause (iii) in reg. 4 is ultra vires and must be struck down.
24. Writ Petition No. 41/83 is made absolute with costs in terms of prayers (a-1) and (c) of the petition. Rule is made absolute accordingly.
25. Writ Petition No. 42/83 is made absolute with costs in terms of prayers (a) and (b) of the petition. Rule is made absolute accordingly.