R.A. Mehta, J.
1. This petition was originally filed for the relief of granting the surplus land under the Urban Land (Ceiling & Regulation) Act, 1976 (hereinafter referred to as 'the Act') to the petitioners belonging to backward class and economically weaker section of the seciety. Prayer (b) was for ordering the respondents to allot 8157 sq. mts. out of Final Plot No. 32 for constructing houses for the members of the petitioner No. 2-Society. This land originally belonged to a textile mill of which the members of the petitioner No. 2-Society were or are employees. At the hearing of this petition, prayer (b) was deleted at the request of the Learned Counsel for the petitioners and the petition has been prosecuted as public interest litigation on the ground that the auction of the surplus land at market value is contrary to the public interest, common good and ultra vires the provisions of the Urban Land (Ceiling & Regulation) Act and its purposes. There is also a prayer for declaring Constitution 40th Amendment Act insofar as it protects explanation (b) to Section 23(i) of the Urban Land (Ceiling & Regulation) Act as ultra vires and for declaring that explanation as unconstitutional. There is also a prayer to quash and set aside resolution. By that Resolution, the State Government had laid down the policy for rehabilitating closed and sick textile undertakings which have surrendered their surplus lands under the said Act and by auctioning such surplus lands, a rationalisation fund is sought to be created for rehabilitating and reviving closed and sick textile undertakings.
2. The petitioners contend that the members of the petitioner-society belong to Scheduled Caste and are mill workers working under the 4th respondent-Company which owns and manages the textile mill known as Sarangpur Mill and the petition was directed against the act of the second respondent of giving a public notice on 11-2-1986 inviting public offers for purchase of land of Final Plot No. 31 and 32 of T.P. Scheme No. 18 admeasuring 13152 sq. mts. These lands are surplus lands vesting in the Government under the said Act and according to the petitioners, these lands ought to have been allotted to the petitioners for construction of residential houses as per the provisions of the said Act. Since the prayer for allotment of this land to the petitioners is given up as the petitioners have no legal right to claim this particular land, it is not necessary to deal with the facts and history regarding the claim by the petitioners to get this land in distant past.
3. As a public interest litigation, the Learned Counsel for the petitioners has raised the following contentions:
1. That Section 23(1) explanation (b) is ultra vires and the Constitution amendment protecting the Act by including it in the 9th Schedule is also ultra vires and they are ineonsistent with Article 39B of the Constitution.
2. That the Government Resolution is illegal and ultra vires the Act and more particularly Section 23 of the Act and contrary to the directive principles of the State policy.
4. Section 23(1) and (4) which are relevant for the purpose of deciding the present petition read as follows:
Disposal of vacant land acquired under the Act: It shall be competent for the State Government to allot, by order, in excess of the ceiling limit any vacant land which is deemed to have been acquired by the State Government under this Act or is acquired by the State Government under any other law, to any person for any purpose relating to, or in connection with, any industry or for providing residential accommodation of such type as may be approved by the State Government to the employees of any industry and it shall be lawful for such person to hold such land in excess of the ceiling limit. Explanation: For the purposes of this section-
(a) where any land with a building has been acquired by the State Government under any other law and such building has been subsequently demolished by the State Government, then, such land shall be deemed to be vacant land acquired under such other law;
(b) 'industry' means any business, profession, trade, undertaking or manufacture. 23.(4) Subject to provisions of Sub-section (1), (2) and (3), all vacant lands deemed to have been acquired by the State Government under this Act shall be disposed of by the State Government to subserve the common good on such terms and conditions as the State Government may deem fit to impose.
5. The impugned resolution dated 23rd December 1985 passed by the Gujarat Govt., regarding disposal of surplus lands of sick textile mills provide that the Govt, has decided as follows:
If such units possess surplus lands as per Urban Land Ceiling Act, and Units agree to surrender such lands to State Government, then the State Government would dispose of such lands in such a manner that development of disposed land would be within bounds of Town Planning Rules and that the disposal would fetch highest price. State Government would create a rationalisation fund from such monies and grant loan at a lower rate of interest to such Units for rationalisation.
For implementing the above decision, the Government has also laid down further policy. A committee has been constituted of high Government Officers of various concerned Departments. It is further provided that in respect of the lands in question, actions will have to be taken to dispose of the same by auction as per principles well established even disregarding demands of public bodies. The Committee is to fix upset price not more than the market price. Other guidelines tend to see that market price is realised for these surplus lands vesting in the Government originally belonging to the sick textile mills. It is also provided that immediate action shall be taken to dispose of the surplus lands of sick textile mills and to see that the sick textile mills get the loan at the earliest.
6. The affidavit-in-reply filed on behalf of the State Government shows that the land admeasuring about 18000 sq. mts. of Final Plot No. 31 and 32 of T.P. Scheme No. 18 have been declared as surplus and vested in the State Government under the provisions of the Act. Our of these surplus lands, about 13000 sq. mts. are to be disposed of by the State Govt. by inviting tenders through advertisement in local newspaper. It is slated that the lands in question are in commercial one and the present market value amounts to Rs. 3 Crore (The original prayer of allotment of these lands to about 50 members of the petitioner-Society would have meant allotment of land of nearly 3000 sq. mts., the market value of which would be nearly Rs. 50 to 60 lacs atleast). The affidavit-in-reply further states that the State Government can dispose of the surplus lands as provided under Section 23 of the Act and the Government has taken a policy decision regarding disposal of the surplus lands of sick textile mills as per the resolution referred to earlier.
7. In paras 8 and 9 of the affidavit-in-reply, it is stated as under:
I say that the sale proceeds of the land in question will be credited to modernisation fund out of which a soft loan may be given to concerned sick unit for revival/restructuring of the same.
I say that there is a grave problem of sick and closed textile mills and the State Government, in consultation with the Central Government and financial institutions have thought of a package scheme for revival/restructuring of the units so as to solve the problem. I say that the problem of unemployment of thousands of workers are also involved and one of the measure of the above mentioned package of assistance for closed and sick textile mills is to provide soft term loans from out of the funds created from the sale proceeds of such lands. The relevant extract of the speech of the Finance Minister in the Gujarat Legislative Assembly on 20-2-1984 is produced below:
If such units have land which is surplus under the provisions of the Urban Land Ceiling Act, in the event of such units agreeing to hand over such surplus land to the State Government it would arrange for the disposal of the land so as to fetch the best price, consistent with the existing provisions of the Town manning Rules in order to provide loans on soft terms for the purpose of modernisation of such units, by creating a Modernisation Fund from the sale proceeds of such land.
It is clarified that the remaining land including the land on which there is construction of chawl wherein the members of the petitioner-society might be staying have been excluded.
The respondents No. 4 Company has also filed an affidavit-in-reply. However, it is not necessary to refer to the same in detail, as the Government's action cannot be and need not be judged in view of the averments made therein, although an attempt was made by the petitioners to rely on some part of the affidavit of the 4th respondent, in order to show that the policy as understood by the 4th respondent was not in the common good and, therefore, the policy is ultra vires Section 23(4). We will refer to that aspect a little later.
8. As far as the challenge to the constitutional validity of Constitution 40th Amendment Act and to the provisions of Section 23 of the Act is concerned, the same is already concluded by the judgment of the Supreme Court in the case of Bhimsingh and Ors. v. Union of India and Ors. : AIR1981SC234 . In para 4, the Supreme Court upheld the validity of Section 23 with the following observations:
Section 23 of the Act is in our opinion valid and does not suffer from any constitutional infirmity. The definition of the word 'industry' in Clause (b) of the Explanation to that section is undoubtedly unduly wide since it includes 'any business, profession, trade, undertaking or manufacture'. If Sub-section (1) of Section 23 were to stand alone, no doubt could have arisen that the Urban Land Ceiling Act is a facade of a social welfare legislation and that its true, though concealed, purpose is to benefit favoured private individuals or associations of individuals. But the preponderating provision governing the disposal of excess vacant land acquired under the Act is the one contained in Sub-section (4) of Section 23 whereby, all vacant lands deemed to have been acquired by the State Government under the Act 'shall be disposed of to subserve the common good'. The provisions of Sub-section (4) are 'subject to the provisions of Sub-sections (1), (2) and (3)', but the provisions of Sub-section (1) are enabling and not compulsive and those of Sub-section (2) and (3) are incidental to the provisions of Sub-section (1). The disposal of excess vacant lands must therefore be made strictly in accordance with the mandate of Sub-section (4) of Section 23, subject to this, that in a given case such land may be allotted to any person, for any purpose relating to, or in connection with, any 'industry' or for the other purposes mentioned in Sub-section (1), provided that by such allotment, common good will be subserved. The governing test of disposal of excess land being 'special good', any disposal in any particular case or cases which does not subserve that purpose will be liable to be struck down as being contrary to the scheme and intendment of the Act. The Preamble to the Act ought to resolve interpretational doubts arising out of the defective drafting of Section 23. It shows that the Act was passed with the object of preventing concentration of urban land in the hands of a few persons and with a view to bringing about an equitable distribution of land in urban agglomerations to subserve the common good. Common good being the writing on the wall, any disposal which does not serve that purpose will be outside the scope of the Act and therefore lacking in competence in diverse senses. Private property cannot under our Constitution be acquired or allotted for private purposes though an enabling power like that contained in Sub-section (1) of Section 23 may be exercised in cases where the common good dictates the distribution of excess vacant land to an industry, as defined in Clause (b) of Explanation to Section 23.
In the concurring judgment, Krishna Iyer, J., after quoting Section 23 observed as follows:
Certain basics must be remembered as ideological tools of legal interpretation. The purpose of the enactment, garnered from the preamble, is to set a ceiling on vacant urban land, to take over the excess and to distribute it on a certain basis of priority. The whole story of the legislation, the long gestation of pre-legislative consideration, the brooding presence of Article 39( b) and (c) and the emphasis in Section 23(4) on common good as the guiding factor for distribution point to public purpose, national development and social justice as the cornerstone of the policy of distribution. It is not and never can be compulsory taking from some private owners to favour by transfer other private owners. The prevalent pathology of corrupt use of public power cannot be assumed by the court lest the same charge be levelled against its echelons. The wide definition of 'industry' or the use of general words like 'any person' and 'any purpose' cannot free the whole clause from the inarticulate major premise that only a public purpose to subserve the common good and filling the bill of Article 39(b) and (c) will be permissible. Even a private industry may be for a national need and may serve common good. Even a medical clinic, legal aid bureau, engineering consultant's office, private ambulance garage, pharmacist's shop or even a funeral homemay be a public utility. Professions for the people, trade at the service of the community and industry in the strategic sector of the nation's development may well be in private hands in the transitional stage of our pluralist economy undergoing a fabian transformation. Why should lands allotted to such private industries or professionals be condemned?
The touchstone is public purpose, community good and like criteria. If the power is used for favouring a private industrialist or for nepotistic reasons the oblique act will meet with its judicial Waterloo. To presume as probable graft, nepotism, patronage, political clout, friendly pressure or corrupt purpose is impermissible. The law will be good, the power will be impeccable but if the particular act of allotment is mala fide or beyond the statutory and constitutional parameters such exercise will be a casualty in court and will be struck down. We must interpret wide words used in a statute by reading them down to fit into the constitutional mould. The confusion between the power and its oblique exercise in an intellectual fallacy we must guard against. Fanciful possibilities, freak exercise and speculative aberrations are not realistic enough for constitutional invalidation. The legislature cannot be stultified by the suspicious improvidence or worse of the Executive.
I wholly agree with the perspective of my learned brother Sen, J. that Part IV which seeks to build a Social Justice Society, is basic to our constitutional order. Any transgression of Article 39(b) and (c) is beyond the scope of Section 23(1) and disposal of land thereunder must subserve the common good and not the reverse. This limitation on the wide words of Section 23(1) is a matter of semantics and reading down meanings of words with loose lexical amplitude is permissible as part of the judicial process. To sustain a law by interpretation is the rule. To be trigger-happy in shooting at sight every suspect law is judicial legicide. Courts can and must interpret words and read their meanings so that public good is promoted and power misuse is interdicted.
In para 20, it is further observed as under:
I have no doubt that even the crude drafting of Section 23(4) by the unwanted 'subject to' will not whittle down the power, why, the obligation, to distribute vacant land, not according to personal, political or official fancy but strictly geared to the good set down in Article 39(b) and (c).
9. As far as the second contention is concerned, reference to Section 23(1) by the petitioners in this connection does not seem to be appropriate. Section 23(1) enables the State Government to allot the surplus lands to any person for any purpose relating to or in connection with any industry and explanation (b) to that section explains that the 'industry' means any business, profession, trade, undertaking or manufacture. This is an enabling provision for alloting the land to any industry. The Learned Counsel for the petitioners has submitted that the State Government can allot the land only to an industry or for the purpose of industry and not for any other purpose. In the present case, the land is being sold by public auction in small plots for commercial or other purposes and not for any purpose relating to any industry and the purchasers of the plots to whom the plots would be allotted are not required to utilise the land only for the purpose relating to an industry and, therefore, this is said to be ultra vires the provisions of Section 23(1) of the Act.
10. This disposal of the land is not under Section 23(1), but is under Section 23(4) of the Act which provides that subject to the provisions of Sub-section (1), (2) and (3), all vacant lands deemed to have been acquired by the State Government under this Act shall be disposed of by the State Government to subserve the common good on such terms and conditions as the State Government may deem fit. It is the contention of the State Government that this land is being disposed of by the Stale Government to subserve the common good because the sale proceeds would be credited to a Modernisation fund for revival and restructuring of sick textile mills. There can be no doubt that revival of such large textile mill giving employment to thousands of persons and support to thousands of families and producing essential articles of basic need for the Society is common good. It is submitted by the Learned Counsel for the petitioners that by the policy laid down in the impugned resolution it will benefit only the private owners of the textile mills and will subserve their private good and the so-called common good will only be only a marginal and consequential. In this connection, the Learned Counsel for the petitioners has referred to the affidavit-in-reply of the 4th respondent wherein it is contended that the sale proceeds would be given to the textile mill as interest free loan for first six years and thereafter at a nominal rate of interest and that the entire sale proceeds would be entirely allocated to the 4th respondent under the rehabilitation scheme. The Government policy is contained in the resolution and affidavit filed by the Government, and its validity cannot be decided on the averments made by the 4th respondent. The Government has laid down the policy of creation of modernisation fund out of the sale proceeds of the surplus land and to grant loans at lower rate of interest to such sick textile mill. The impugned Government Resolution declaring its policy does not provide that the sale proceeds are to be utilised for interest free loan and, therefore, at this stage, it would be premature to say that on account of the affidavit-in-reply of the 4th respondent, the policy would be ultra vires Section 23(4) of the Act and against common good.
11. The Learned Counsel for the petitioner relied on the following observations of the Supreme Court in Bhimsingh's case (supra):
If Sub-section (1) of Section 23 were to stand alone, no doubt could have arisen that the Urban Land Ceiling Act is a facade of a social welfare legislation and that its true, though concealed, purpose is to benefit favoured private individuals or associations of individuals.
xxx xxx xxx xxxPrivate property cannot under our Constitution be acquired or allotted for private purposes.
xxx xxx xxx xxxIt is not and never can be compulsory taking from private owners to favour by transfer other private owners.
xxx xxx xxx xxxTo presume as probable graft, nepotism, patronage, political clout, friendly pressure or corrupt purpose is impermissible. The law will be good, the power will be impeccable but if the particular act of allotment is mala fide or beyond the statutory and constitutional parameters such exercise will be a casualty in court and will be struck down.
12. Relying on this it is submitted on behalf of the petitioners that this Government Resolution would be a fraud on the Urban Land Ceiling Act, and the disposal of surplus lands to subserve common good is the primary and the basic aim of the Act and the impugned policy resolution of the Government does not have that perspective in mind and the policy merely proceeds to assist the industry and the industrialist and for raising revenue and totally disregarding the interest of the masses, the weaker sections of the society and their common good. It is submitted that the common good of the Society overrides the so-called good of an industrial unit or the industrialist.
13. The common good is a term of very wide connotation and takes within its sweep variety of purposes. The good of the poor masses and houseless persons and of economically weaker sections of Society is a common good, but that is not only the common good. Rehabilitation of an industry is also a public purpose and common good. If the policy aims at the common good rehabilitating the industry, it would be within the scope and perspective of Section 23(4) of the Act. If it is not so, but if it is primary to help the private industrialist it would not be a common good. However, when the policy is primarily aimed at the common good of rehabilitating industry and not for helping the industrialist which might only be an incidental, it cannot be said to be against the spirit and provisions of Section 23(4) of the Act. The Supreme Court, in Bhimsingh's case (supra) held that:
Why should lands allotted to such private industries or professionals be condemned? The touchstone is public purpose, community good and like criteria.
The Learned Counsel for the petitioners has referred to the affidavit-in-reply of the respondent No. 4 for the purpose of showing that the sale proceeds will be utilised merely with a view to help the industrialist and the private owners of a mill-Company, because as a result of the interest free loan for 6 years, the private industrialist would be benefited and there is no provision for recovering interest for this period even after industry is rehabilitated and starts making profits. At this stage, all these arguments are merely speculative without any factual basis. The Govt., policy is clear and simple that a rationalisation or modernisation fund would be created out of the sale proceeds of the surplus lands and soft loan would be advanced to the sick units for rehabilitating them. This purpose is clearly for a common good. At this stage, there is no material and no evidence to believe that the sale proceeds would not be utilised consistent with the perspective of the Act and scope of common good envisaged by Section 23(4) of the Act. The closure of large industrial undertaking results into unemployment of thousands and miseries of thousands of families as also adversely affecting ancilliary industries and trades engaged in the supply of raw materials and services to the industrial unit and in marketing and disposal of finished products. The problem becomes more acute equipped when a large number of such units become sick and get closed. Lacs of people arc directly and adversely affected. The miseries of the unemployed workmen and their families would be the greatest and the economy also would be affected in general. In such circumstances, rehabilitation of such an industrial unit would ex-faeie and clearly be in the common good of the Society, as against the claim of about 50 or 100 persons over the surplus land in order to have their modest houses. It was submitted by the Learned Counsel for the petitioners that even out of the sale proceeds, for houseless and economically backward people, care should have been taken in the larger interest and common good of the society. It is one of the purposes which would be included in common good. However, it is for the Government to consider in what manner and in what priority and in what proportion the Government would implement the mandate of Section 23(4) of the Act to subserve the common good and it is not possible to hold that the present resolution of the Government is against common good or contrary to the scope, purpose and perspective of Section 23(4) of the Act.
14. The Learned Counsel for the petitioners has also referred to directive principles of State policy contained in Article 39(b) of the Constitution and submitted that the Government must direct its policy towards securing that the ownership and control of material resources of the community are so distributed as to best subserve the common good. Section 23(4) of the Act has also the same purpose of serving the common good and as discussed earlier, the State has translated this directive principle of State policy in action by enacting provisions of Section 23 and by the impugned Government Resolution as is discussed earlier to subserve the common good, Therefore, this contention based on Article 39(b) has also to be rejected.
15. It is also submitted that the impugned Government Resolution and policy is contrary to Section 35 of the Act. Section 35 enables the State Government to issue orders and directions of a general character as it may consider necessary in respect of any matter pertaining to the power and duties of the competent authority. The Government Resolution is not issued under Section 35 of the Act nor is it a direction to the competent authority. It is in the exercise of powers under Section 23 which have been expressly conferred on the State Government for disposal of vacant land required under the Act. Therefore, the submission based on Section 35 is completely out of place and is misconceived.
These were the only contentions raised by the Learned Counsel for the petitioners and all of them fail. Hence, the petition is summarily rejected at the admission stage as no prima facie case is made out for admission of the petition.