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Citation Codes
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citation codes
Case Number
Attorney(S)
Judges
Acts
  • 7, 12, 13, 14, 24 and 29.14. Since Rule
  • 34 and 35. Rule
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
Judges
Acts
  • 7, 12, 13, 14, 24 and 29.14. Since Rule
  • 34 and 35. Rule
Smart Summary

Factual and Procedural Background

This is a suo motu Public Interest Litigation concerning the allotment of plots by the Government or the Collector to sitting and former Judges of the Gujarat High Court, present and former Judges of the Supreme Court of India, and former Judges of this Court who are now Chief Justices in other States. The Court heard numerous counsel, including an amicus curiae (Senior Counsel N.D. Nanavaty) and several intervenors and counsel for many respondents. A Rule was issued in the matter. Several respondents sought time to examine the matter because service of the Rule had been staggered (some served at night, some in the morning and some remaining unserved). The Court framed a set of questions directed to the controversy and, in view of the seriousness and the involvement of Hon'ble Judges, referred the entire matter to the Acting Chief Justice for constitution of an appropriate larger Bench to hear and decide the case. The Court impleaded Neetibagh Judges' Cooperative Housing Society Limited as respondent No. 34 and the High Court of Gujarat through its Registrar General as respondent No. 35, directed service of the Rule on all respondents, and directed that the matter be placed before the Acting Chief Justice so the larger Bench could be constituted and the matter listed the next day (12.8.2015 at 11:00 a.m.).

Legal Issues Presented

  1. Whether, after allotment of plots to sitting Judges, any vacant plots could thereafter be allotted to former Judges of Gujarat High Court, or to persons who were lawyers or subordinate court Judges at the time of allotment.
  2. Whether the Neetibagh Judges' Cooperative Housing Society Limited could be considered to have been allotted land if the Society was formed but did not purchase the land (no sale deed on record), and whether allotments to Judges who are members of the Society were made contrary to the terms of allotment.
  3. Whether there existed any Government policy to allot individual plots at a prime location and, if so, whether any advertisement inviting applications was issued.
  4. Whether any Judge or Judges applied individually to the Collector, Ahmedabad or the State Government for allotment of plots.
  5. Whether a plot can be allotted to a Judge who already had his own house within an 8 km radius of the land, and whether such an allotment would be contrary to Government policy.
  6. Whether allotment of land to a Judge or individual who already had a house within 8 kms amounts to undue enrichment.
  7. Whether Ahmedabad Urban Development Authority or Ahmedabad Municipal Corporation undertook internal development of the area allotted to Neetibagh Judges' Cooperative Housing Society Limited free of cost, under whose orders, why, and whether free-of-cost development is permissible in law.
  8. Whether non-registration of a sale deed in the name of the Housing Society and allotment of plots in the name of Judges amounted to defrauding the State exchequer by evasion of stamp duty.
  9. Under what authority the Secretary of the Neetibagh Society wrote to the Collector requesting allotment to particular judges and why the Collector acted on such letters.
  10. Whether Gauchar land or water bodies could be allotted to a Housing Society or to individuals for construction of houses.

Arguments of the Parties

Respondents' Requests and Objections

  • Many learned Senior Counsel and counsel for the respondents requested time to examine the matter and obtain instructions before responding, noting staggered or incomplete service on respondents.
  • Some respondents objected to the framing of questions prior to being given an opportunity to file their responses; they submitted that questions should be framed only after opportunity to file affidavits or responses.

Other Requests Noted by the Court

  • Intervenor Mr. B.T. Rao requested impleadment of Neetibagh Judges' Cooperative Housing Society Limited as a party; the Court allowed this impleadment.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Sursinhji Rajput Chhatralay Trust v. Bavla Nagarpalika Division Bench decision cited in this opinion; used as the leading discussion point from which other authorities were extracted. The Court referred to this Division Bench decision and the authorities relied on therein as background for framing the questions in the present suo motu PIL.
Jasvantsinh Laxmansinh Chauhan v. Deesa Municipality, 1995 1 GLH 730 Municipality need not dispose of property only by public auction; Section 65 does not mandate auction in every case; municipality cannot dispose for ulterior motives or to give undue benefit to a class, but may consider needs of a section of society; Section 65 contains safeguards. Cited (through Sursinhji Rajput) to show that disposal/allotment of property is not restricted solely to auction and that statutory safeguards exist against arbitrary disposals.
(2012) 10 SCC 1 From paras 108 and 113: Article 14 does not constitutionally mandate auction as the exclusive method for disposal/allocation; Article 39(b) requires distribution of material resources to subserve the common good and does not limit distribution to one method (auction). Relied upon to support the proposition that auction is not the only permissible method of allocation and to place the allocation/ distribution issue within constitutional principles (Article 14 and Article 39(b)).
Sarvesh Atulbhai Gohil v. Jamnagar Urban Development Authority, 2014 (2) GLH 26 Observations noting a serious state of affairs regarding authorities' conduct (including illegal/unauthorized construction) and a broader concern about disregard for law, illustrated by reference to Delhi Development Authority v. Skipper Construction. Quoted to reflect the Court's concern about conduct of authorities and the social context; used when framing questions about possible improper allotments and institutional conduct.
Delhi Development Authority v. Skipper Construction Company Private Limited (1996) 4 SCC 622 Authority's observations about large-scale irregularities and contempt for law in the context of illegal/unauthorized construction (as quoted in Sarvesh Atulbhai Gohil). Referred to (via Sarvesh Atulbhai Gohil) for highlighting systemic problems and to underscore the seriousness of the issues raised in this PIL.
City Industrial Development Corporation v. Platinum Entertainment, (2015) 1 SCC 558 State agencies cannot give largesse arbitrarily; decisions must be founded on a sound, transparent and well-defined policy made known to the public; disposal of government land must avoid discrimination and favoritism and should be publicized. Relied upon to underscore the requirement of transparency, non-discrimination and publicity in allotments of government land; informed the Court's approach in framing questions about policy, advertisement, and favoritism.
Akhil Bhartiya Upbhokta Congress v. State of Madhya Pradesh, (2011) 5 SCC 29 State or its agencies must have a sound, transparent, discernible and well-defined policy for giving largesse; even where allotment is based on individual applications, the Rule of Law requires publicity so eligible persons are not excluded. Used to press the point that public disclosure and a discernible policy are necessary in allotments and that such principles apply to the facts raised in the suo motu PIL.

Court's Reasoning and Analysis

The Court first recorded the attendance of amicus curiae, intervenors and counsel for numerous respondents and noted that a Rule had been issued. Several respondents sought time to peruse records and respond; the Court acknowledged uneven service of the Rule. The Court observed that the dispute concerns allotments to sitting and former Judges and the matter's seriousness meant it should be decided by a larger Bench. Relying on earlier decisions (as summarized above) emphasizing safeguards, transparency, non-discrimination and the absence of a constitutional mandate for auction as the sole method of allocation, the Court framed ten specific questions addressing allotment procedures, the status of the Neetibagh Society and absence of sale deeds, existence of policy and publicity, potential undue enrichment, internal development done free of cost, non-registration and stamp duty concerns, and allocation of protected lands (Gauchar/water bodies).

The Court refused respondents' request to delay question-framing until after responses were filed, stating it was referring the entire matter to a larger Bench and that framing questions before reference conforms with High Court Rules. The Court expressly permitted the larger Bench to reformulate or add questions. The Court impleaded the Neetibagh Society and the High Court as respondents, directed service of the Rule on all respondents (including newly added ones), noted specific respondents who had not yet been served, and directed the registry to place the records and this order before the Acting Chief Justice for constitution of the larger Bench so the matter could be listed the next day.

Holding and Implications

Core Ruling: The Court REFERRED the matter to the Acting Chief Justice for constitution of an appropriate larger Bench to hear and decide the suo motu Public Interest Litigation and framed ten preliminary questions for consideration by that Bench.

Direct consequences and procedural implications:

  • The Court framed ten questions relating to allotment practices, status of the Neetibagh Society, policy/publicity, possibility of undue enrichment, internal development works, non-registration/stamp duty issues, and allotment of Gauchar/water bodies.
  • Neetibagh Judges' Cooperative Housing Society Limited was impleaded as respondent No. 34 and the High Court of Gujarat (through its Registrar General) as respondent No. 35; the Rule is to be served on all respondents including the newly added ones.
  • The larger Bench was given liberty to reformulate or add questions; the matter was to be placed before the Acting Chief Justice for constitution of the larger Bench and listed on 12.8.2015 at 11:00 a.m.
  • The Court rejected respondents' objection that questions should be framed only after they were permitted to file responses, citing the referral procedure under the High Court Rules.

No broader precedent was announced by this order; the decision effects referral to a larger Bench and procedural steps as stated above.

    Allotment Of Plots To Judges, In Re

    Vijay Manohar Sahai, A.C.J:— We have heard learned Senior Counsel Mr. N.D Nanavaty appearing as amicus curiae assisted by learned advocate Mr. Rajesh Savajani, who has been requested to assist the Court, learned advocate Mr. B.T Rao appearing as intervenor, Mr. Amarsinh Chavda, RTI activist residing at 127, Heritage Bungalows, Opposite Science City, Ahmedabad - 60, Mr. Vinod Pandurao Sonkusre, Social Worker, Ex Army Man, residing at 57/667, Mangal Murti Appt., Shashtrinagar, Naranpura, Ahmedabad - 380013. Learned advocate Mr. Jigar Patel appears for respondent No. 4, learned advocate Mr. Niral Mehta appears for respondent No. 5, Mr. Dipen Desai appears for respondent No. 6, learned advocate Ms. Mini Nair appears for respondent Nos. 8 and 9, learned advocate Mr. Uday Joshi appears for respondent Nos. 10 and 11, learned Senior Counsel Mr. Mihir Thakore assisted by learned advocate Mr. Salil Thakore appears for respondent No. 15, learned Senior Counsel Mr. R.S Sanjanwala assisted by learned advocate Mr. Dhaval D. Vyas appears for respondent No. 16, learned Senior Counsel Mr. Mihir Thakore assisted by learned advocate Mr. Darshan Vanandani appears for respondent Nos. 18, 19 and 30, learned Senior Counsel Mr. S.N Shelat assisted by learned advocate Mrs. Vaibhavi Nanavati appears for respondent Nos. 20 and 28, learned Senior Counsel Mr. P.C Kavina assisted by learned advocate Mr. Anshin Desai appears for respondent Nos. 21 and 22, learned Senior Counsel Mr. S.N Soparkar assisted by learned advocate Mr. B.D Karia appears for respondent No. 23, learned Senior Counsel Mr. Mihir Joshi assisted by learned advocate Mr. D.A Desai appears for respondent No. 25, learned Advocate General Mr. K.B Trivedi assisted by learned Additional Advocate General Mr. P.K Jani, learned Government Pleader Ms. Manisha Lavkumar and learned Assistant Government Pleader Ms. Sangita Vishen appears for respondent Nos. 1, 2, 3 a nd 31 and learned Advocate General Mr. K.B Trivedi assisted by learned AGP Ms. Sangita Vishen appears for respondent Nos. 32 and 33.

    2. Rule.

    3. Learned Senior Counsel appearing for the respective respondents pray that they may be granted time for looking into the matter. Some of the respondents have been served in the night, some of the respondents have been served in the morning and some of the respondents are still to be served. To enable the counsel for the respondents to take effective steps in this suo motu Public Interest Litigation, we pass the following order:—

    4. The dispute in this suo motu Public Interest Litigation is with regard to allotment of plots by the Government or the Collector to the Hon'ble Judges (present and former) of this Court as well as present and former Judges of the Supreme Court of India as well as former Judges of this Court, who are now working as Chief Justice in other State. Before, we frame the questions which may be answered by the respondents, we may point out few decision.

    5. In Letters Patent Appeal No. 1211 of 2013 rendered by the Division Bench of this Court in Sursinhji Rajput Chhatralay Trust v. Bavla Nagarpalika decided on 3rd March, 2015, the Division Bench has held as under:-

    “7. In support of his case, learned counsel for the appellant has relied upon the following decisions:

    1) Jasvantsinh Laxmansinh Chauhan v. Deesa Municipality, 1995 1 GLH 730, more particularly paragraph 5 thereof, which reads as under:

    It is difficult for us to agree with the contention of the learned counsel for the petitioners that in every case where the property is supposed to be disposed of, it can be done only by public auction. There is no provision in Section 65 of the Act to that effect. Of course, the municipality cannot dispose of its property for an ulterior reason or not for the purposes of the Act, nor can it circumvent the provisions of the Act to directly or indirectly give undue benefit to persons or a class of persons. This can, however, not prevent the municipality from considering favourably the demands or the needs of a section of society. Section 65 of the Act contains sufficient safeguards and does not, in our opinion, suffer from the vice of excessive delegation. The challenge to the said provision is without any basis.

    2) In a three Judges Division Bench decision of the Apex Court (2012) 10 SCC 1, which has been relied upon by the Division Bench, more particularly paragraphs 108 and 113, which read as under:-

    108. Such being the constitutional intent and effect of Article 14, the question arises - can auction as a method of disposal of natural resources be declared a constitutional mandate under Article 14 of the Constitution of India? We would unhesitatingly answer it in the negative since any other answer would be completely contrary to the Scheme of Article 14. Firstly, Article 14 may imply positive and negative rights for an individual, but with respect to the State, it is only couched in negative terms; like an admonition against the State which prohibits the State from taking up actions that may be arbitrary, unreasonable, capricious or discriminatory. Article 14, therefore, is an injunction to the State against taking certain type of actions rather than commanding it to take particular steps. Reading the mandate of auction into its scheme would thus, be completely contrary to the intent of the Article apparent from its plain language.

    113. Finally, reading auction as a constitutional mandate would be impermissible because such an approach may distort another constitutional principle embodied in Article 39(b). The said article enumerating certain principles of policy, to be followed by the State, reads as follows:

    The State shall, in particular, direct its policy towards securing:

    a) … … …

    b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;

    The disposal of natural resources is a facet of the use and distribution of such resources. Article 39(b) mandates that the ownership and control of natural resources should be so distributed so as to best subserve the common good. Article 37 provides that the provisions of Part IV shall not be enforceable by any Court, but the principles laid down therein are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. Therefore, this Article, in a sense, is a restriction on distribution built into the Constitution. But the restriction is imposed on the object and not the means. The overarching and underlying principle governing distribution is furtherance of common good. But for the achievement of that objective, the Constitution uses the generic word distribution. Distribution has broad contours and cannot be limited to meaning only one method i.e auction. It envisages all such methods available for distribution/allocation of natural resources which ultimately subserve the common good.”

    5. In another judgment of the Division Bench of this Court in Sarvesh Atulbhai Gohil v. Jamnagar Urban Development Authority, 2014 (2) GLH 26, the Division Bench has observed in paragraph 17 as under:—

    “17. This petition portrays an extremely sorry state of affairs at the end of the authorities, namely, the Jamnagar Urban Development Authority as well as the Jamnagar Municipal Corporation. We are reminded of the observations made by the Supreme Court in the case of Delhi Development Authority v. Skipper Construction Company Private Limited reported in (1996) 4 SCC 622, in connection with the menace of illegal and unauthorized construction of buildings and other structures. The observations are worth noting.

    “37. ……. We feel impelled to make a few observations. What happened in this case is illustrative of what is happening in our country on a fairly wide scale in diverse forms. Some persons in the upper strata (which means the rich and the influential class of the society) have made the property career the sole aim of their life. The means have become irrelevant in a land where is greatest son born in this century said means are more important than the ends. A sense of bravado prevails; everything can be managed; every authority and every institution can be managed. All it takes it to ‘tackle’ or ‘manage’ it in an appropriate manner. They have developed an utter disregard for law nay a contempt for it; the feeling that law is meant for lesser mortals and not for them. The courts in the country have been trying to combat this trend, with some success as the recent events show. But how many matters can we handle. How many more of such matters are still there? The real question is how to swing the polity into action, a polity which has become indolent and soft in its vitals? Can the courts alone do it? Even so, to what extent, in the prevailing state of affairs? Not that we wish to launch upon a diatribe against anyone in particular but Judges of this Court are also permitted, we presume, to ask in anguish, what have we made of our country in less than fifty years? Where has the respect and regard for law gone? And who is responsible for it?”

    6. The Apex Court in City Industrial Development Corporation v. Platinum Entertainment, (2015) 1 SCC 558 has held in para 49 and 50 as under:-

    “49. State and its agencies and instrumentalities cannot give largesse to any person at sweet will and whims of the political entities or officers of the State. However, decisions and action of the State must be founded on a sound, transparent and well defined policy which shall be made known to the public. The disposal of Government land by adopting a discriminatory and arbitrary method shall always be avoided and it should be done in a fair and equitable manner as the allotment on favoritism or nepotism influences the exercises of discretion. Even assuming that if the Rule or Regulation prescribes the mode of allotment by entertaining individual application or by tenders or competitive bidding, the Rule of Law requires publicity to be given before such allotment is made. CIDCO authorities should not adopt pick and choose method while allotting the Government land.

    50. Furthermore, this Court has already stated in Akhil Bhartiya Upbhokta Congress v. State of Madhya Pradesh, (2011) 5 SCC 29, that the State or its agencies or instrumentalities must give largesse founded on a sound, transparent, discernible and well-defined policy, which should be made known to the public at large and further held that a rational policy of allotting land on the basis of individual applications cannot de hors an invitation or advertisement by the State or its instrumentality, bringing it to the knowledge of public at large so that the eligible persons should not be excluded from lodging their competitive claims.”

    7. In view of the aforesaid decisions and looking to the controversy involved in this case, we propose to frame the following questions:-

    (i) Whether after allotment of plots to sitting Judges, if still some plots remained vacant, whether it could be allotted to the former Judges of Gujarat High Court or not and whether the vacant plots could be allotted to Judges who were lawyers or subordinate Court Judges at the time of allotment of plots?

    (ii) Whether the Neetibagh Judges' Cooperative Housing Society Limited was allotted land after the Society was formed as a Society, but it did not purchase the land from the Government or from the Collector as there is no sale deed on record, which is admitted by the Collector, then how the Judges who are Members of the Housing Society were allotted land contrary to the terms of allotment?

    (iii) Whether there is any policy of the Government to allot individual plot at a prime location, if yes, whether any advertisement was issued inviting applications?

    (iv) Whether any Judge or Judges have applied to the Collector, Ahmedabad or the State Government for allotment of plots individually?

    (v) Whether the plot can be allotted to the Judges who are having their own house within the radius of 8 km from the land? Whether such a Judge could be legally allotted land contrary to the policy of the Government?

    (vi) Whether a Judge or any individual, who is having house within the periphery of 8 Kms. from the alloted land by the Government, amounts to undue enrichment?

    (vii) Whether Ahmedabad Urban Development Authority or Ahmedabad Municipal Corporation had made internal development of the total area of the land allotted to Neetibagh Judges' Cooperative Housing Society Limited free of cost and under whose orders and why? Whether free of cost development is permissible in law?

    (viii) Whether non-registration of sale deed in the name of the Housing Society and allotment of plots in the name of Judges was to defraud the State exchequer by evasion of stamp duty?

    (ix) Under what authority the Secretary of the Neetibagh Judges' Cooperative Housing Society Limited wrote letters to Collector, Ahmedabad to allot plot to “x” Judge and the Collector had allotted plot to “x” Judge ha to be explained?

    (x) Whether Gauchar land or water bodies could be allotted to a Housing Society or to an individual or individuals for the purpose of construction of house?

    8. Learned counsel for the respondents pray that time be granted to them for looking into the matter and respond by way of affidavit, if required, that whether such a Public Interest Litigation would be entertainable or not. We are not inclined to accept the request made by learned counsel for the reason that interest of justice demands that this matter pertains to Hon'ble Judges of this Court and in view of the seriousness, this matter should be decided by a larger Bench and therefore, we refer the entire matter to Hon'ble the Acting Chief Justice for constitution of appropriate larger Bench to hear and decide the same.

    9. It shall be open to the larger Bench to reformulate the questions and frame new question since the entire case has been referred to the larger Bench.

    10. Learned counsel for the respondents have raised objections against framing of the questions while referring the matter to the larger Bench and they submitted that after giving opportunity of filing their response, only thereafter, the questions should have been framed. We reject the request of the respondents as we are not deciding the matter and we are referring the entire matter to the larger Bench and as per the High Court Rules, the matter is to be referred to larger Bench only after framing the questions, therefore, we have framed the questions.

    11. Learned advocate Mr. B.T Rao has made a request that Neetibagh Judges' Cooperative Housing Society Limited through its Secretary, Sola, Opposite - High Court of Gujarat, Ahmedabad may be impleaded as party - respondent No. 34. We implead Neetibagh Judges' Cooperative Housing Society Limited through its Secretary as party - respondent No. 34. The High Court of Gujarat through its Registrar General is also impleaded as respondent No. 35. Office shall carry out the necessary amendment and implead respondent Nos. 34 and 35. Rule be issued to newly added respondent No. 34. Office is directed to serve the Rule today to all the respondents including the newly added respondents.

    12. Since learned counsel Mr. G.M Joshi is appearing on behalf of High Court of Gujarat, he has waived the service of Rule. He may also file his response.

    13. Office has filed a note dated 11.8.2015 indicating that Notice has not been served to respondent Nos. 7, 12, 13, 14, 24 and 29.

    14. Since Rule has been issued today, Rule be served on all the respondents.

    15. Office is directed to place the entire records as well as the the order passed by us today before the Hon'ble the Acting Chief Justice for constituting the larger Bench today, so that the matter may be listed tomorrow i.e 12.8.2015 at 11:00 a.m before the larger Bench.

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    Allotment Of Plots To Judges, In Re
    (Aug 11, 2015)