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Jagabandhu Jena and ors. Vs. Land Allotment Committee and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberOriginal Jurn. Case No. 1505 of 1983
Judge
Reported inAIR1986Ori143
ActsAllotment of Government Lands in Rourkela Civil Township Rules - Rules 4 and 7; Constitution of India - Article 161
AppellantJagabandhu Jena and ors.
RespondentLand Allotment Committee and ors.
Appellant AdvocateJayant Das, ;Y. Das, ;T. Hafiz and ;M.S. Haque, Advs.
Respondent AdvocateGovt. Adv.
Cases ReferredB. S. Minnas v. Indian Statistical Institute
Excerpt:
.....for the government that no person has a right to enter into contractual relationship with the government and the government, like any other private individual, has the absolute right to enter into contract with any one it pleases. but the court, speaking through the learned chief justice, responded that the government is not like a private individual who can pick and choose the person with whom it will deal, but the government is still a government when it enters into contract or when it administering largess and it cannot, without adequate reason, exclude any person from dealing with it or take away largess arbitrarily. ' this proposition would hold good in all cases of dealing by the government with the public, where the interest sought to be protected is a privilege. it must,..........of making allotment of government lands in the civil township of rourkela. under the said rules a land allotment committee (hereinafter called 'the committee') comprising of the commissioner, the collector of sundargarh, the town planner, the director of industries and the additional district magistrate of sundargarh has been constituted. the committee is vested with the power to receive applications from the public for allotment of lands, consider the same and select the applicants considered most deserving.according to the procedure laid down in the rules the additional district magistrate of rourkela who is the member-secretary of the committee, is to enquire either himself or through any of the subordinate revenue officers into the contents of the applications and such other matters.....
Judgment:

Mohapatra, J.

1. In this writ petition the petitioners seek to challenge the allotment of Government lands in the civil township of Rourkela to be in contravention of the rules framed by the State Government for the purpose.

A set of administrative instructions styled as 'Rules for Allotment of Government Lands in the Rourkela Civil Township' (hereinafter called 'the Rules') have been issued by the State Government for the purpose of making allotment of government lands in the Civil Township of Rourkela. Under the said rules a land allotment committee (hereinafter called 'the Committee') comprising of the Commissioner, the Collector of Sundargarh, the Town Planner, the Director of Industries and the Additional District Magistrate of Sundargarh has been constituted. The Committee is vested with the power to receive applications from the public for allotment of lands, consider the same and select the applicants considered most deserving.

According to the procedure laid down in the rules the Additional District Magistrate of Rourkela who is the Member-Secretary of the Committee, is to enquire either himself or through any of the Subordinate Revenue Officers into the contents of the applications and such other matters as are relevant to the question of allotment of land and draw up lists of allottees whom he considers most deserving and place the same before the committee within a period of thirty days from the last date for receipt of applications. Thereafter, the Committee shall consider the names of the allottees recommended by the Additional District Magistrate along with the names not recommended and after such enquiries as they consider necessary draw up final lists of allottees for land for different purposes within a period of fifteen days from the date of consideration. Rule 7(2) expressly provides that while considering the lists mentioned above, the Committee shall abide by the principle enumerated in Rule 4. The decision of the Committee is appealable to the State Government in the Revenue Department.

2. Though the petitioners have taken various grounds in their writ petition, on ultimate analysis, the gist of their complaint is that while making selection of the allottees the Committee has failed to act in accordance with the provisions of the rules and particularly the order of priority laid down in Rule 4(f) has not been observed inasmuch as some of the petitioners who come within category No. 1 have not been included in the list while applicants coming within lower category have been selected. The petitioners further contend that the reasons given by the Committee for rejecting in limine the applications of the petitioners are wholly irrelevant and extraneous. On these grounds the petitioners pray for quashing the allotment made by the opposite parties.

3. The opposite parties in their counter-affidavit while denying the allegations made in the writ petition have taken the stand that the petitioners have no vested right to get allotment of government land and even assuming that there has been some violation of the provisions of the rules which are nothing but a set of administrative instructions, the petitioners are not entitled to enforce the same in a Court of law and no relief can be founded on the said rules. They assert that the matter of allotment of plots has been fairly and properly dealt with by the Committee and the selection of allottees has been made keeping in view the larger interest of the public. They, however, admit the factual position that without exhausting all the valid applications in category-1 the Committee has considered and accepted applications under lower categories. So far as the reason for rejecting the applications of the petitioners are concerned the relevant portion of the counter-affidavit is quoted as under:

'1. Jagabandhu Jena. Petitioner No. 1:

He was not in the list of eligible applicants for allotment of land because he has not produced a certificate from his employer regarding his annual income from salary as the certificate has not been signed by his employer but the same has been signed by somebody on behalf of the employer.

'2. Jogeshwar Acharya, Petitioner No. 2: He was in the preliminary list of eligible persons for allotment of land in category 1 and came within the zone of consideration in Category 1, but he has not been finally selected. The Committee already selected 41.8% of applicants under Category i and Sri Acharya being a part of the 58.2% applicants rejected, it is not a discrimination against him alone.

3. Sri Nimai Nanda, Petitioner No. 3:

Sri Nanda has not furnished his original displaced persons certificate though he had applied for consideration under the. category i.e. Category 1. He has not furnished certificate of his income from sources other than salary. Hence, he was not eligible for consideration.

4. Sri Karunakar Mohanty, Petitioner

No. 4:

5. Sri B. D. Mohapatra, Petitioner No. 5:

These two petitioners have got allotment ofhouses from the Orissa State Housing Board,Bhubaneswar vide OSHB's orders Nos. 1692St. 5-2-1983 and 1984 dt. 5-2-1983 respectivelyin the Civil Township of N. A. C. (C. T.)Rourkela. Since they have been allotted landwith building by Orissa State Housing Boardby the time of consideration of theirapplications, the Land Allotment Committeedid not consider their claims in pursuance ofRule 3 read with Rule 4(f)(iv) of the said Rules.'

4. Shri J. Das, the learned counsel for the petitioners advanced the following contentions-

(a) The Committee had no jurisdiction to accept any application beyond 15-6-1981 which was the last date specified in the notice calling for applications for allotment of land:

(b) The action of the Committee in considering applications from lower categories without exhausting all the valid applications in the higher categories is in contravention of Rule 4(f) of the Rules; and

(c) The reasons for rejecting the applications of the petitioners are wholly untenable.

5. The learned Government Advocate refuted the contentions raised by Sri Das relying on the stand taken in the counter-affidavit. He produced the relevant records relating to the selection of allottees.

6. Regarding the first contention raised by Sri Das, the learned Government Advocate has pointed out that though 15-6-1981 was initially fixed as the last date for receiving applications the date was extended from timeto time till 2-7-1981 and the extended dates were duly notified by the Additional District Magistrate, Rourkela. The extensions were considered necessary in the larger interest of the public, since many intending applicants had not been able to purchase forms and make necessary deposits in the Bank within the time specified, for the reasons beyond their control. On a perusal of the rules we do not find any provision therein prohibiting the extension of time for receiving applications. It is to be borne in mind that though styled as rules, the provisions are nothing but a set of administrative instructions meant primarily for the guidance of the Committee and other Subordinate Officers. Taking this aspect into consideration and the fact that the extensions were meant to alleviate the grievances of members of the public and to enable them to submit applications for allotment of Government land, we have no hesitation in rejecting the contention of the petitioners that application received after 15-6-1981 were not available to be considered by the Committee.

7. The second contention raised by Sri Das requires careful consideration. In the present case, the petitioners do not question the power of the State Government to lay down principles for allotment of Government land. The validity of the rules contained in Annexure-1 to the writ petition is also not challenged by them. Their complaint is that the provisions of the rules issued by the State Government have not been duly complied with by the Committee.

No doubt, the rules are a set of administrative instructions which do not vest the applicants with any right to allotment of Government land, but it is beyond controversy that the State Government having laid down certain principles for allotment of lands under the rules in order to ensure procedural fairness to the general public, the Committee which is a creature of the rules is not entitled to depart from the same. The petitioners who have submitted their applications on the representations made in the rules are entitled to have their applications considered and disposed of justly and fairly in accordance with the principles laid down therein. To accept the contention that the State Government as the owner has the right to select any person for settlement of its land and no citizen is entitled to approach the Court with anygrievance relating to the matter, would be vesting the State Government with arbitrary powers, which, to say the minimum, is against the basic concept of a Civilised Society.

Since the main thrust of the argument of Sri Das is on Rule 4(f) which lays down the order of priority for selection of allottees, it would be useful to quote the provisions of the said rule:

'Rule 4(f) in the matter of allotment, the applications shall receive priorities in the following order:

(i) Applicants who are displaced due to acquisition of land in connection with the establishment of Steel Plant and Township at Rourkela and have no land in Rourkela (Civil Township or Steel Township NAC areas) for the purpose applied for;

(ii) Industrialists who have set up small or medium industries at Rourkela and do not possess any land or building in the said area (Civil Township and Steel Township NAC areas) for the purpose applied for;

(iii) persons belonging to the poor class or middle class of Sundargarh District, who have no land in Rourkela (Civil Township or Steel Township NAC areas) for the purpose applied for:

(iv) Registered Societies etc. and permanent residents of the State, who belong to the poor class or middle class and have no land in Rourkela (Civil Township or Steel Township NAC areas) for the purpose applied for;

(v) Other applicants, who belong to the poor class or middle class who have no land in Rourkela (Civil Township or Steel Township NAC areas) for the purpose applied for.'

There is nothing in the rules to indicate that any power is vested in the Committee to select some applicants from amongst a category leaving out others even though they belong to a category entitled to priority over others as per the provisions of the rules. This is further clear from the fact that the rules do not lay down the criteria for any such selection. It is also worth noting that there is no provision in the rules vesting a residual power in the Committee to make a selection in an appropriate case irrespective of the classification laid down in Rule 4(f) of the rules. In these circumstances, it has to be held that the Committee, a creature of the Rule, has no power to flout the provisions of the rules or ignore the same. As such, the Committee erred in selecting applicants from categories placed lower in the order of priority without exhausting all the valid applications in Category-I.

8. The learned Government Advocate strenuously contended that the writ petition at the instance of the petitioners is not maintainable since they have no enforceable right. To be more specific, it was his contention that since the petitioners have no statutory right to get lease of Government land and no statutory duty is cast on the opposite parties in the matter, a writ of mandamus cannot be issued and the prayer to this effect is to be rejected. It is true that the petitioners cannot claim lease of Government land as of right. It is also true that the field in question is not covered under any statutory provision but| under a set of administrative instructions issued by the State Government. But from these it does not follow that the State is entitled to deal with its property in any manner it likes and to choose any person it likes to settle its property with A without any constitutional limitations upon it. The further question that arises in the present case is whether the State or any public authority is free to violate the rules/instructions framed/issued by the State Government and still not be amenable to the jurisdiction of the Court. The question has been answered in the negative by the Supreme Court in the case of Ramana Dayaram Shetty v. The International Airport Authority of India, AIR 1979 SC 1628. The relevant portions of the judgment can be profitably quoted here :

'We agree with the observations of Mathew, J. in V. Punnan Thomas v. State of Kerala, AIR 1969 Ker 81 (FB) that: 'The Government, is not and should not be as free as an individual in selecting the recipients for its largess. Whatever its activity, the Government is still the Government and will be subject to restraints, inherent in its position in a democratic society. A democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal'. The same point was made by this Court is Erusian Equipment and Chemicals Ltd. v. State of West Bengal, (1975) 2 SCR 674 : AIR 1975 SC 266 where the question was whether blacklisting of a person without giving him an opportunity to be heardwas bad? Ray, C.J., speaking on behalf of himself and his colleagues on the Bench pointed out that blacklisting of a person not only affects his reputation which is in poundian terms an interest both of personality and substance, but also denies him equality in the matter of entering into contract with the Government and it cannot, therefore, be supported without fair hearing. It was argued for the Government that no person has a right to enter into contractual relationship with the Government and the Government, like any other private individual, has the absolute right to enter into contract with any one it pleases. But the Court, speaking through the learned Chief Justice, responded that the Government is not like a private individual who can pick and choose the person with whom it will deal, but the Government is still a Government when it enters into contract or when it administering largess and it cannot, without adequate reason, exclude any person from dealing with it or take away largess arbitrarily. The learned Chief Justice said that when the Government is trading with the public, 'the democratic form of Government demands equality and absence of arbitrariness and discrimination in such transactions.......... Theactivities of the Government have a public element and, therefore, there should be fairness and equality. The State need not enter into any contract with anyone, but if it does so, it must do so fairly without discrimination and without unfair procedure.' This proposition would hold good in all cases of dealing by the Government with the public, where the interest sought to be protected is a privilege. It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norm which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largess including award of jobs, contracts quotas, licences etc. must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases, theaction of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, But was based on some valid principle which in itself was not irrational, unreasonable or discriminatory.'

The same principle has been reiterated by the Supreme Court in the case of B. S. Minnas v. Indian Statistical Institute reported in (1983) 4 SCC 582, wherein their Lordships referring to several earlier decisions including the case of International Airport Authority's case (AIR 1979 SC 1628) held that 'administrative authority is bound to adhere to the procedural standards fixed by it to avoid arbitrariness, failing which the action taken by it would be invalid and Bye-laws framed by the authority for procedural fairness even if not having statutory force are binding:'

In view of the authoritative pronouncements referred to above, the contention of the learned Government Advocate regarding the maintainability of the petition is devoid of force and has to be rejected.

9. Coming to the reasons given by the Committee for rejecting the applications of the petitioners we find that they are not tenable. Regarding Jogeshwar Acharya (petitioner No. 2) it is the admitted position that his application was free from defect and he comes within category No. 1. He was not selected under an erroneous impression that the Committee was free to consider the applicants, coming within the categories lower in order of priority without exhausting all the applicants under category 1. In view of our observations made in the foregoing paragraph his application deserves to be considered. Regarding the application submitted by Jagabandhu Jena (petitioner No. 1) the only reason given by the Committee for its rejection is that the certificate of his annual income has not been signed by the employer but by somebody on behalf of the employer. He is an employee under the Notified Area Council and the certificate is to be signed by an officer of the Notified Area Council. Hence, the rejection of his application is without any basis and his application also deserves to be considered. Similarly, in the case of Nimai Nanda (petitioner No. 3) the reason for rejection of his application is that the certificate of his income does nut disclose the income from the sources other than salary. He has asserted in the affidavit that he has no income other than his salary and as such the question of giving any certificate for income from other sources did not arise. He has also asserted that the displaced persons certificate duly attested was furnished. In these circumstances, rejection of his application was wholly unjustified and his application deserves to be considered. Karunakar Mohanty (petitioner No. 4) and B. D. Mohapatra (petitioner No. 5) had admitted in their respective affidavits that they have received allotments of houses constructed by the Orissa State Housing Board at Rourkela. There is nothing to indicate that the said allotments have been subsequently cancelled. As such they are not entitled to be considered for allotment of Government land under the rules. The complaint by these two petitioners are, therefore, rejected.

10. Regarding the order to be passed, we have carefully considered the matter and we feel that in the facts and circumstances of the case, it would not be proper to set aside the entire selection by the Committee at the instance of the petitioners (petitioners i to 3). We think it appropriate to direct the Committee to reconsider the matter relating to selection of allottees. Accordingly, we would call upon the opposite party No. 1 to re-examine the selection made by the Committee taking into consideration the applications of Jagabandhu Jana, Jogeswar Acharya and Nimai Charan Nanda (petitioners 1 to 3) strictly in accordance with the rules and in the light of the observations made in this judgment and pass appropriate orders within a period of three months from today. So far as Karunakar Mohanty and Banshidhar Mohapatra (petitioners 4 and 5) are concerned, the matter is closed and their applications need not be taken into consideration. The writ petition is disposed of in terms aforesaid. There will be no order for costs.

P.K. Mohanti, J.

11. I agree.


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