ORDER
Chandrakantaraj Urs, J.
1. These Appeals are directed against the Common Order dated 8-9-1989 passed by a learned Single Judge of this Court in W.Ps.Nos. 8546 to 8548 of 1988 connected with W.P.No.15377/1988, allowing the Writ Petitions partly and disallowing a certain prayer of the petitioners therein. In the result, the aggrieved 5th respondent in W.Ps.Nos. 8546 to 8548/1988, M/s. Revajeethu Builders and Developers (hereinafter referred to as Revajeethu for short) has preferred Writ Appeals Nos. 2071 to 2074/1989 arising out of the said Writ Petitions as well as W.P.No. 15377/1988. Writ Appeals Nos. 2059 to 2062 of 1989 are preferred by the 4th respondent in W.Ps.8546 to 8548/1988, viz., M/s Narayanaswamy and Sons. Writ Appeals Nos. 2083 to 2085/1989 are preferred by the Writ Petitioner in W.Ps.Nos. 8546 to 8548/1988 to the extent of one of his prayers or relief prayed for by him being refused. Similarly, Writ Appeal No. 1928/1989 is preferred by the petitioners in W.P.No. 15377/1988 being denied a similar relief prayed for by them, as the petitioner in W.Ps.Nos. 8546 to 8548/1988.
2. We propose to dispose of the aforementioned appeals by the following common order as they arise out of the common order passed in the said Writ Petitions. In the course of this common order, we propose to refer to the parties by the ranks assigned to them in the Writ Petitions or by any other appropriate expression used for brevity.
3. The facts leading to the Writ Petitions in brief are as follows. One Shri S. Vasudeva, an Advocate, practising before this Court presented Writ Petitions as aforesaid seeking inter alia quashing of two orders of the Government dated 6-3-1987 and 18-4-1987 bearing G.No.11 CEI 87, produced as Annexures J and K in his Writ Petitions, made in purported exercise of its power under Sub-section (1) and 1(a) of Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as the Act). The first of the orders permitted the 4th respondent M/s. Narayanaswamy and Sons in the aforementioned Writ Petitions to sell an extent of 16,194 square metres of vacant land comprised in S.Nos. 6/1 and 6/2 of Dasarahalli, VI Block, Jayanagar, Bangalore. By the other order the State Government permitted the said 4th respondent to sell an extent of 3444 sq. metres of vacant land comprised in the very same survey numbers to the 5th respondent as well as granted exemption to that extent of land from the ceiling provisions of the Act. Pursuant to these orders, the said 4th respondent sold to the 5th respondent -Revajeethu an extent of 5 acres 24 guntas comprised in the said S.Nos. 6/1 and 6/2 for a consideration of Rs. 90 lakhs. The certified copy of the sale deed in question as well as the plan annexed thereto of the vacant land was produced as one of the Annexures to the petitions of Shri Vasudeva. The petitioner Shri S. Vasudeva was not personally aggrieved by the aforementioned orders and the sale deed, as he had no personal interest in the lands that formed the subject matter of the orders as well as the sale deed. He had presented the Writ Petitions inter alia contending that the orders in question had been passed by the 1st respondent - State of Karnataka (hereinafter referred to as the State Government) in mala fide exercise of its powers without due application of mind and without taking into consideration the public interest and in contravention of the express provisions and the objects of the Act. Therefore, he prayed for as many as 9 reliefs in the aforementioned Writ Petitions in public interest and the reliefs prayed for were as follows:
(a) A Writ of Mandamus directing the respondents 1 to 3 to take action for forfeiture of the land for contravention of Section 79 of the Karnataka Land Reforms Act;
(b) A Writ of Mandamus directing the respondents 1 to 3 to acquire the land for the purpose of weaker Section under the provisions of the Urban Land Ceiling and Regulations Act;
(c) By a Writ of Certiorari to quash the order No. HUD.CE.11/87 dated 6-3-1987 and No. HUD.CE.11/87 dated 18-4-1987 granting exemption from the purview of the Urban Land (Ceiling and Regulations) Act, under Section 20(1)(a) and (b) of the Urban Land Ceiling Act, issued by the Under Secretary, Housing and Urban Development Department, Government of Karnataka, Bangalore;
(d) Directing the 9th respondent to initiate proceedings against the 5th respondent and 4th respondent under Chapter XXC of the Income Tax Act which came into force on 1-10-1987 in relation to the sale deed executed by the 4th respondent in favour of the 5th respondent registered on the 30th September, 1987 before the Sub-Registrar, Jayanagar, Bangalore, registered as Document No. 1928/87-88 of Book-1, Volume 1116, pages 65 to 83 on 30-9-1987;
(e) Directing the 10th respondent to hold an enquiry into the Benami Transaction entered into between the 5th respondent and others in respect of the purchase of land in question under the registered sate deed dated 30-9-1987 and formation and constitution of partnership as on 30-9-1987 and initiate action in accordance with law;
(f) To declare the sate deed dated 30-9-1987 executed by M/s. Narayanaswamy and Sons in favour of the 5th respondent as null and void;
(g) And to grant any other Writ, Order or Direction as deemed fit under the facts and circumstances of the case, in the interest of justice;
(h) An appropriate Writ, Order or Direction to the 7th respondent to initiate action under Section 45(A) of the Karnataka Stamp Act, 1957 against the respondents 4 and 5;
(j) Appropriate Writ or Direction to the first respondent to take action under Section 6 of the Karnataka Parks, Play-fields, and Open Space (Reservation and Regulation) Act, 1985 against the respondents Nos. 4 and 5 in respect of lands measuring 60' x 156' earmarked for Bull-ward in S.No. 6/1 and 6/2 of Dasarahalli Village, Uttarahalli Hobli, Bangalore South, situated on the eastern side of the said survey lands.'
4. Similarly, the petitioners in W.P.No. 15377/1988 are persons who claimed to be in public life and who belong to the Congress-I, political party, admittedly, and who have questioned the very same orders of the State Government with prayers for more or less the same reliefs as Shri S. Vasudeva.
5. The facts leading to the passing of the impugned orders and the consequential instrument of conveyance executed by the 4th respondent Narayanaswamy and Sons a family partnership firm (hereinafter referred to as the land owner) in favour of Revajeethu which are not disputed may be stated and they are as follows: The owners of the vacant land which is the subject matter of the Writ Appeals and some more, which according to them did not constitute excess land, together with the building thereon under the provisions of the Act. By a sale deed dated 17- 2-1937 executed by Dyavappa and his sons in favour of B. Munivenkatappa (since deceased) relating to S.No. 6/2 the land measuring 3 acres 39 guntas was sold, while subsequent documents and records disclosed the extent in the said survey number to be 4 acres 4 guntas. Similarly, under a sale deed dated 20-12-1937 executed by Muni Mallappa in favour of late B. Munivenkatappa the common ancestor of the land owner in respect of S.No. 6/1; the land sold was 2 acres 5 guntas. In a subsequent sale deed of 30-9-1953 produced by S. Vasudeva as one of the Annexures to his Writ Petitions, the extent is shown in the said survey numbers as 2 acres 5 guntas and 3 acres 39 guntas respectively. No Kharab portion was mentioned in the last mentioned sale deed. That last mentioned sale deed was executed by Rao Saheb Munivenkatappa son of Narayanaswamy in favour of Narayanaswamy and Sons. Thus, at an undisputed point of time the lands comprised in S.Nos. 6/1 and 6/2 of Dasarahalli Village in so far as the land owner was concerned, measured totally 6 acres and 4 guntas. The lands comprised in these survey numbers came to be acquired by the then Government of the erstwhile State of Mysore in or about 1948 and subsequently released from acquisition. In regard to the last mentioned fact there appears to be some difference in the stands taken by the parties to the proceedings before the learned Single Judge and we will refer to the same at the appropriate time. What may be usefully mentioned at this stage is that in the lands so acquired by Rao Bahaddur Munivenkatappa common ancestor of the partners in Narayanaswamy and Sons, a family partnership, the 4th respondent had established a granite factory. It is claimed in that behalf that an extent of 25 guntas was acquired by the owners from the Government for an approach road to the factory. When matters stood thus, the Act was passed and in that circumstance an application was made by the land owner under Section 20 of the Act seeking exemption from operation of the provisions relating to ceiling in respect of 16,194 sq. metres and exemption came to be granted by an order dated 17-7-1985 made by the State Government. It may be stated by us that that order was never challenged before the learned single Judge in the Writ Petitions filed by both Vasudeva as well as DP. Sharma and another. Subsequently, on 6-1-1987 a partnership firm in the name and style of Revajeethu Enterprises came to be formed. Fifty per cent interest in that firm is owned by one Shobha Makhija. The remaining 50 per cent is held by others among whom a family of businessmen in Bangalore had the major interest. It is unnecessary for us to state anything more in this behalf as they do not affect the questions which will fall for consideration and which will be stated later in the course of this order. It suffices at this stage to state that Revajeethu came into existence in order to develop the vacant land of the land owner as developers after purchasing the same from the land owner.
6. On 9-1-1987 the Competent Authority under the Act passed an order to acquire 3444 sq. metres of land held by that Authority to be excess land in possession of the land owner under the Act. On the same day, an application was made by the land owner to the then Minister for Urban Development - 2nd respondent in the Writ Petitions filed by Vasudeva, seeking permission to sell 5 acres 24 guntas of vacant land to Revajeethu. That application was purported to be one made under Section 20 of the Act on the ground of hardship. That application was processed and on 6-3-1987 the permission was granted. However, on 24-3-1987 another application came to be made seeking exemption from the application of the ceiling provisions of the Act in respect of the very same 3444 sq. metres which had been declared to be the excess land in possession of the land owner earlier by order dated 9-1-1987 made by the Competent Authority under the Act. Therefore, on 18-4-1987 yet another order came to be passed granting exemption and permission to sell. These two orders dated 4-3-1987 and 18-4-1987 were questioned by the Writ Petitioners seeking the reliefs which we have set out earlier.
7. We have already set out the main grounds urged by the petitioners. At this stage, we would like to add one of the grounds which appears to have been the most controversial before the learned Single Judge as well as before us and that is that the orders in question came to be passed by the State Government on account of the relationship of Shobha Makhija to the then Chief Minister of Karnataka, Ramakrishna Hegde (hereinafter referred to as the Chief Minister), on the basis of which the contention of malafides have been urged by the Writ Petitioners. It is said that the said Shobha Makhija is the sister of the son- in-law of the Chief Minister.
8. In the light of these undisputed facts, the learned Single Judge having regard to the pleadings and the contentions urged before him by the parties formulated the following 5 points for his consideration and proceeded to pass the final orders or directions on such points:
(1) Whether the petitioners are entitled to maintain the petitions under Article 226 of the Constitution?
(2) What is the extent and nature of the land comprised in S.Nos. 6/1 and 6/2 of Dasarahalli. Whether an extent of 5 acres 24 guntas sold under the Sale Deed dated 30th September, 1987 by respondent-4 to respondent-5 was available?
(3) Whether the impugned orders dated 6-3-1987 and 18-4-1987 (Annexures J and K respectively) passed by the State Government under Section 20 of the Act are legal and whether they fall within the scope and ambit of the Act?
(4) Whether respondents 2 and 8 misused their official positions and acted with ulterior motive and caused passing of the impugned orders dated 6-3-1987 and 18-4-1987 (Annexures J and K respectively) with a view to confer benefit on respondent-5. If so, whether the impugned orders Annexures J and K are vitiated by malafide exercise of the power?
(5) What is the effect of the findings on point Nos. 1 to 4 on the Sale Deed dated 30-9-1987 executed by respondent-4 in favour of respondent-5?
9. In the light of examination of the records and appreciating the contentions pleaded and advanced by the parties before him on the points formulated as above, the learned Single Judge of this Court came to allow the Writ Petitions holding:
(1) that the Group Housing Policy of the State Government as embodied in the decision of the Committee held on 22-10-1986 and as communicated under the D.O. Letter No. HUD 485 MNK 86 dated 24-11-1986 referred to in para 8.6 of his order in so far as it related to encourage Group Housing Scheme through individuals and partnership of individuals by transferring vacant land in excess of the ceiling limit to such persons was quashed and the 1st respondent (the State Government) was restrained from enforcing the same through individuals and partnerships of individuals in respect of vacant land in excess of the ceiling limit;
(2) that the impugned orders bearing Nos. HUD 11 CEI 87 dated 6-3-1987 and HUD 11 CEI 87 dated 18-4-1987, Annexures J and K respectively in the Writ Petitions of Vasudeva were declared null and void and therefore quashed;
(3) that the sale deed dated 30-9-1987 executed by the 4th respondent in favour of Revajeethu by the land owner registered as Document No. 128/87-88 on 30-7-1987, a certified copy of which was produced as Annexure-A in W.Ps.Nos. 8546 to 8548/1988 by the Sub-Registrar, Jayanagar, Bangalore, was declared to be null and void and as having no effect in the eye of law in so far as it related to an extent of land measuring 19,638 sq. metres covered by the orders impugned dated 6-3-1987 and 18-4-1987 (quashed) but such rendering of the sale deed invalid and ineffective did not affect the sale deed in so far as it related to the remaining area pointed out in the course of the learned single Judge's order;
(4) that respondent-State of Karnataka and the Special Deputy Commissioner for Urban Land Ceiling, Bangalore, the Bangalore Development Authority by its Commissioner and the Commissioner, Corporation of the City of Bangalore were directed to identify the extent of 1 acre 2 guntas and 58 sq. yards acquired out of S.No.6/1 of Dasarahalli under the Notification No.L.2090/ML.28- 48-4 dated 1-9-1948 for road and Boulevard and set apart the same for that purpose within two months from the date of the order and use the same for that purpose only;
(5) the application dated 9-1-1987 and 24-3-1987 filed by the land owner should stand remitted to the State Government with a direction to consider them in accordance with law under Section 20(1)(b) of the Act in the light of the findings recorded, observations made, and the interpretation place on Section 20(1) of the Act in the course of the order of the learned single Judge with a further direction that before granting the prayers in the application on the ground of undue hardship, the State Government should ascertain the extent of the debt from the creditors of the 4th respondent who had advanced the loan prior to the Act coming into force and in that manner such debts that were subsisting and had remained to be enforceable and recoverable on the date of the applications i.e., 9-1-1987 and 24-3-1987 and in the event of the State Government granting permission to the land owner to sell the vacant land in excess of the ceiling limit on the ground of undue hardship, it should see that in the excess vacant land sites were formed of various dimensions not exceeding 60' x 90' keeping in view the sites already formed in the locality and each site was sold in public auction by the Competent Authority with a condition that no person would be entitled to purchase in public auction more than one site and the sale proceeds be credited in the office of the Competent Authority who shall directly pay the amount to the creditors with notice to respondent-4 and obtain due discharge from the creditors. It was however directed that the sale of sites to the extent necessary to discharge the debts only should be held and the remaining portion should be acquired under the Act. Lastly, the petitioner in W.P.Nos. 8546 to 8548/1988 was held to be entitled to costs, taking into consideration the efforts made by him in espousing the cause of public interest and having regard to the magnitude of the case, the money and energy spent by him and as such costs in the sum of Rs. 10,000/- were awarded to be paid by the 1st respondent-State Government, respondent-4 the land owner and respondent-5 Revajeethu jointly and severally sharing among themselves the cost so awarded equally.'
10. !t is on account of the directions given in the light of the conclusions reached by the learned single Judge in regard to the validity of the order giving permission to sell and order exempting 3444 sq. metres as at Annexures J and K and the determination of the nature and extent the land of the land owner that the 5th respondent-Revajeethu has preferred Writ Appeals aggrieved by such findings and the directions given. 'The other Appeals filed by the Writ Petitioners relate to the finding recorded by the learned single Judge on point No. 4 formulated by him to the effect that on giving anxious consideration and keeping in view the facts proved and the evidence on record that it could not be held that the Writ Petitioners had established that respondent-2 the Minister for Urban Land and respondent-8 the Chief Minister had misused their official position and authority in passing the impugned orders to favour and confer benefits upon Revajeethu and therefore it could not be held that the impugned orders Annexures J and K were vitiated on that ground because it was not proved that there was mala fide exercise of power by respondent-2 the Minister for Urban Land and the Chief Minister in order to confer benefits on Revajeethu. Therefore, aggrieved by that finding they have filed the Appeals contending that that finding was contrary to the records and the law declared by Courts on the subject.
11. It is in the light of these facts that we are called upon to adjudicate in these Appeals the correctness or otherwise of the findings recorded by the learned single Judge on the various points formulated by him and the conclusions reached that the impugned orders which came to be quashed for reasons stated by him were not vitiated on account of the mala fide exercise of power by the Urban Land Minister - 2nd respondent and the then Chief Minister - 8th respondent.
12. Before us, Mr. Ganesh, learned Counsel appearing for the appellant - Revajeethu, has submitted the arguments in support of the case of Revajeethu that the order of the learned single Judge is liable to be set aside in its entirety except in regard to the finding on the allegation of mala fide against the then Urban Land Minister and the then Chief Minister while the learned Counsel for the appellants were lead by Shri B.R.L. Iyengar, Senior Advocate in the other Appeals who were the Writ Petitioners before the learned single Judge and Shri Vasudeva himself the petitioner-appellant appeared in person before us have submitted the arguments. For the land owner Mr. S. Vijayashankar, learned Counsel, has submitted his arguments more or less adopting the arguments advanced on behalf of Revajeethu. The land owner itself has not filed any Appeal against the order of the learned single Judge.
13. Before we proceed to notice the rival contentions and deal with them, it is, we think, apt that we should preface the same with an observation that the Writ Petitions themselves were entertained as Public Interest Litigation. Therefore, the learned single Judge, proceeded on the assumption that it would be for the Court to grant relief in such a litigation not necessarily in conformity with the reliefs prayed for by the petitioners but reliefs that would sub-serve public interest. That is obvious to us from the first paragraph of the order under appeal. We must sound a note of caution in matters of Public Interest Litigation. Undoubtedly, it is too late in the day to shut the gates of the Courts, particularly the High Courts to Public Interest Litigation. Much has been said before and certainly much more will be said later in regard to this aspect of our Processual Jurisprudence evolved over the years in order to enforce the Fundamental Rights of the people as well as maintain purity in public administration actuated by personal motives and self-aggrandizement of those that are in power at any given point of time. This is the least that the Judiciary may do in the discharge of its functions under the scheme of the Constitution, particularly the High Courts in exercise of their extraordinary jurisdiction under Articles 226 and 227 of the Constitution. At the same time in our enthusiasm to do Justice in Public Interest Litigation, the Court should not clutch at jurisdiction where none exists, convert itself into administrative body administering the State in accordance with Judicial standards evolved by it nor should the Court in the exercise of its power conferred to interpret the Constitution take over the functions of the Legislature and legislate which is not the province of Judiciary notwithstanding that there is what is known as Judge Made Law in abundance, it is with this uppermost in our mind that we in turn proceed to examine the merits of rival contentions and the records made available to us and from which the learned single Judge has extensively quoted in the course of his order. We also propose to refer to the order under appeal in accordance with the reported version as reported in Indian Law Reports Karnataka Series [I.L.R. 1989(2) Karnataka 2909].
14. Mr. Ganesh, learned Counsel for Revajeethu, has inter alia contended that the impugned orders granted in favour of the land owner to sell what was already exempted under an earlier order of 1985 which was never challenged by any of the petitioners could not have been set aside on the ground that it was beyond the competence of the State Government in its exercise of power under Section 20(1)(a) of the Act and much less on the plea of the petitioners who lacked the locus standi to challenge the same. The emphasis was that if a finding was recorded that there were no malafides in passing the impugned exemption granted and permission to sell the exempted land, the Court should not have proceeded further. That contention was supported by referring to the numerous Cases set out in Book-4 given to us (which it was submitted was also made available to the learned single Judge at the time of arguments) which disclosed that the land owner and Revajeethu were not singled out for any favour as alleged and similar exemptions and permission to sell was granted before and after the impugned orders. It was next contended by Mr. Ganesh that the learned single Judge erred in declaring the policy decision of Group Housing to be bad as it was out-side the purview of Judicial Review under Article 226 of the Constitution. As a limb of that contention, he submitted that the learned single Judge, erred in holding that the State Government could not accord permission to sell land under the provisions of the Act. It was contended by the learned Counsel for Revajeethu that any interpretation of Section 20(1)(a) and (b) of the Act which tends to restrict or interfere with the extent of power or the width of discretion of the State Government should be avoided as it would run contrary to the language of the Section and the scheme of the Act and therefore what was amenable to Judicial Review was only the manner of exercise of such power and the discretion and not any other matter which would fall out-side such manner of exercise of power and discretion. It was further contended by Mr. Ganesh, learned Counsel for Revajeethu, that the Court under Article 226 of the Constitution may not cancel the exemption granted subject to the conditions imposed except for breach of those conditions as that could only be done by the Government in exercise of its power under Sub-section (2) of Section 20 of the Act. It was lastly contended that the question of extent and nature of land came to be determined on totally inadequate pleadings and on affidavits and as such there was no justification for the learned single Judge to proceed to adjudicate on title in the absence of pleadings and evidence in derogation of the restraints the High Courts in the Country had imposed on themselves prohibiting litigations urging and establishing title or seek declaration of title in proceedings under Article 226 of the Constitution. In support of the above contentions, the learned Counsel has placed reliance on a number of Judicial Authorities to which we will make a reference when we take up the contentions for consideration.
15. As earlier noticed, Mr. S. Vijayashankar, appearing for the land owner who is respondent in these Appeals and appellant in W.As.Nos. 2059 to 2062 of 1989, has endorsed the contentions of Mr. Ganesh and also relied upon certain Authorities in support of those contentions.
16. As against these contentions of the appellant - Revajeethu and the land owner, learned Advocate General appearing for the State of Karnataka wanted to address arguments in support of the [earned single Judge's conclusions and the order. We firmly declined to permit him to do so on the ground that the State Government had filed its objections and the learned Advocate General then appearing for the State had supported the impugned orders and if permitted would amount to allowing the Government to challenge its own orders. We pointed out the incongruity of such a situation notwithstanding the reliance placed by the learned Advocate General on Rule 22 of Order 41 of the C.P.C. We pointed out that if the Government wanted to support the learned single Judge's order, it had nothing more to do than acquiesce in the directions given and it could not be permitted in Appeal proceedings to go back on its original stand before the learned single Judge merely because there was a change in the Government, making mockery of our Judicial Process. But we do record with satisfaction that we gave a patient hearing to whatever the learned Advocate General had to say which was no more than placing reliance on the Judgment of the Gujarath High Court on the scope and ambit of Section 20 of the Act and to which we are bound to make a reference in the course of our order.
17. Mr. S. Vasudeva, the Writ Petitioner, who espoused the public cause submitted with reference to various dates to which we will make a reference in the course of our Order that the Group Housing Policy taken by the State Government was to assist the appellant -Revajeethu to purchase the property in question. He did not press the finding against him recorded by the learned Single Judge that the vacant land in question was not agricultural but converted urban land. He further contended that the State Government did not follow the directions given by the Central Government while giving exemption and permission to sell and as such exemption given to a partnership firm which was not a Housing Co-operative Society was contrary to such directions and therefore the exemptions and permission were liable to be struck down or quashed. He further contended that there was a breach of condition in as much as the sale was not completed within six months and therefore the order in question should be struck down (a ground not canvassed before the learned single Judge). He further contended that certain facts found proved in the case as indicated by the learned single Judge did give rise to serious doubt that respondent - Urban Land Minister and the then Chief Minister might have used their official position to held Revajeethu. In that behalf, he pointed out that the circular of February, 1987 particularly para-2 therein should have induced the learned single Judge to conclude that the mala fide was established.
18. Mr. B.R.L. Iyengar, learned Senior Advocate appearing for the Appellants in Writ Appeal No. 1928/1989 submitted that good faith and honesty, honest negligence could be distinguished from negligence and therefore if guidelines were not followed by the State Government then the impugned orders should be held to be vitiated as having been passed in mala fide exercise of power as there was no reference to the directions or guidelines on which the learned Single Judge placed reliance at page 2988 of the Order as reported in I.L.R. 1989 Karnataka. The learned Senior Advocate mainly placed reliance on the language of Section 20 of the Act and contended that under Clause (a) of Sub-section (1) of Section 20 of the Act, exemption could not be granted except in public interest, to wit, the earlier exemption in 1985 was granted in respect of an industry which did constitute public interest and the permission to sell the same by the first of the impugned orders for a purpose other than the ground for which the exemption was granted amounted to non-consideration of the ground of exemption independently, afresh, at the time of permitting transfer and therefore it was a clear error of law or illegality, which would render the orders legally mala fide. As yet another limb of that argument, the learned Senior Counsel commended to us that having regard to the location of the land, it was imperative on the part of the State Government to direct enquiry in regard to the need of a public purpose despite the fact that the land had been released from acquisition for a public purpose at an earlier point of time. The learned Senior Advocate also addressed the Court on the total want of pleadings in the affidavits filed by the then Urban Land Minister and the then Chief Minister. He specifically drew the attention of the Court to the fact that the objections filed by the State of Karnataka before the learned single Judge did not deny the fact that the land had been acquired or a portion of it by the Bangalore Development Authority (which had been directed to be made a party by the learned single Judge) and the same had been reserved for a park and boulevard.
19. The other learned Counsel who have addressed arguments are Mr. H.B. Datar, Senior Advocate for Bangalore Development Authority and he did no more than state that the said Authority stood by the affidavit it had filed before the learned single Judge to which we will make a reference in due course.
20. Mr. Udaya Holla, learned Counsel appearing for the then Chief Minister, pointed out that the allegations of Shri Vasudeva were not direct, in regard to mala fides and there was no relationship as such between Shobha Makhija and the Chief Minister and as such the entire allegation was without any foundation or truth in it. He specially drew the attention to para-7 of the statement of objections at page 199 of Book-2 filed before us by the appellant - Revajeethu. He also relied upon a number of Decisions to which we will make a reference.
21. Mr. Jagannath, learned Counsel appearing for the Urban Land Minister pointed out that the allegations in paras 4 and 12 of the Writ Petitions were vague and the same having been denied, the matter should rest there. He supported the conclusions reached by the learned single Judge in regard to there being no proof of mala fide exercise of power.
22. It is convenient for us to take up the question of want of locus standi in so far as the Writ Petitioners were concerned on the question of exemption granted together with permission to sell the land belonging to the land owner. The land owner was not the only person who was given exemption or permission to sell the land under the provisions of the Act; that a number of persons before the passing of the impugned Orders and after the passing of the impugned Orders had been given exemption in more or less similar circumstances and therefore singling out the exemption granted to the land owner with permission to sell to Revajeethu to be subjected to Public Interest Litigation was not only unfair but also should have been construed by the learned single Judge as motivated for their own individual advancement and no public interest as such was served. He drew our specific attention to the compilation in Book-4 which among other things contained from pages 1 to 5, a number of Government Orders granting exemption from the ceiling provisions of the Act. Actually the list relied upon contains as many as 249 such exemptions. Our attention was specifically drawn to two exemptions granted by Government Order dated 9th September, 1987 in favour of one Smt. Ramakka others residing at No. 12 and 13 of Subbayyanapalya in Banasavadi Road, Bangalore-33. By the said order. Ramakka and others were given exemption from the operation of the ceiling provisions of the Act as well as permission to sell, the extent of land being 6947.50 sq. metres. By an order dated 9th April, 1987 which is very close to the dates of the impugned orders and in proximity of time, the Government granted exemption under Section 20 of the Act to one K.L Ramesh, The land belonging to Ramesh was situated more or less in the same area as the land of the land owner sold to Revajeethu. They also permitted the said Ramesh to sell the land. One of the conditions imposed was that Ramesh should sell the land to M/s. Cauvory Housing Company and that the said Company should use the land for putting up Group Housing Scheme. The extent of land so exempted and permitted to be sold was 33,892.82 sq. metres, far larger than the area of the land exempted and permitted to be sold by the land owner to Revajeethu. That such orders were passed is not disputed by the learned Advocate General or the other Counsel appearing for the Writ Petitioners and others. However, we must notice that Mr. Vasudeva one of the Writ Petitioners stated that he did not have knowledge of those orders and therefore he could not meet the same by proper pleadings, as it was brought to his notice when the arguments were heard by the learned single Judge and as such he was unable to offer any comments in regard to them. Mr. B.R.L Iyengar, learned Senior Advocate for the appellants in W.A.No. 1928/1989, however, on instructions, submitted that in respect of the exemption granted in favour of Ramesh certain action had been initiated by the Lokayuktha in the State of Karnataka. But we have no material in that behalf before us except the submission Therefore, we do take it, in the absence of denial that the two orders among others had indeed been passed by the State Government and therefore the learned Counsel for Revajeethu was justified in bringing to our notice and that the learned single Judge was made aware of those facts. However, we find that the learned single Judge though he had the material before him did not choose to express himself on that aspect of the matter. The entire Order is silent about it. It is in the light of these facts that the learned Counsel urged that public interest was not the primary object of the Writ Petitions and therefore they did not have the locus standi.
23. The learned single Judge has dealt with the question of locus standi under point No. 1 formulated by him. He has relied upon the decided cases of the Supreme Court which are quite well known and has proceeded to hold that having regard to the fact that the Act was passed by Parliament to further the objects of one of the Directive principles of State Policies under Article 39(b) and (c) of the Constitution; that the ownership and control of the material resources of the community were so distributed as best to sub-serve the common good and that the operation of the economic system did not result in the concentration of wealth and means of production to the common detriment. There cannot be any doubt that the Act is a piece of legislation which is to further the principal object underlying the Constitution of India i.e., to make way for an egalitarian society and reduce the disparity of wealth between the rich and poor.
24. The learned Counsel, Mr. Ganesh, drew our attention to the observation of Khalid, J., in the case of SHRI SACHIDANAND PANDEY AND ANR. v. THE STATE OF WEST BENGAL AND ORS., AIR 1987 SC 1109, which is as follows:
'My purpose in adding these few lines of my own is to highlight the need for restraint on the part of the public interest litigants when they move Courts. Public interest litigation has now come to stay. But one is led to think that it poses a threat to Courts and public alike. Such cases are now filed without any rhyme or reason. It is, therefore, necessary to lay down clear guidelines and to outline the correct parameters for entertainment of such petitions. If Courts do not restrict the free flow of such cases in the name of Public Interest Litigations, the traditional litigation will suffer and the Courts of law, instead of dispensing justice, will have to take upon themselves administrative and executive functions.'
25. We have already expressed earlier in the course of this order that limitations to which the Court must subject itself in determining the scope and extent of its interference. The passage extracted above does no more than lend support to our own view. Observation in the same case by Chinnappa Reddy, J., is as follows:
'Where an administrative action or order of the Government involves the problem of environment and the Government is alive to the various considerations requiring thought and deliberation and has arrived at a conscious decision after taking them into account, it may not be for the Court to interfere in the absence of mala fides. On the other hand, if relevant considerations are not borne in mind and irrelevant considerations influence the decision, the Court may interfere in order to prevent a likelihood of prejudice to the public. Whenever a problem of ecology is brought before the Court, the Court is bound to bear in mind Article 48-A of the Constitution, the Directive Principle which enjoins that 'The State shall endeavour to protect and improve the environment and to safeguard the forests and will life of the Country', and Article 51A(g) which proclaims it to be the fundamental duty of every citizen of India 'to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.' When the Court is called upon to give effect to the Directive Principle and the fundamental duty, the Court is not to shrug its shoulders and say that priorities are a matter of policy and so it is a matter for the policy-making authority. The least that the Court may do is to examine whether appropriate considerations are borne in mind the irrelevancies excluded. In appropriate cases, the Court may go further, but how much further must depend on the circumstances of the case. The Court may always give necessary directions. However, the Court will not attempt to nicely balance relevant considerations. When the question involves the nice balancing of relevant considerations, the Court may feel justified in resigning itself to acceptance of the decision of the concerned authority.'
(Emphasis suggested by the learned Counsel)
26. Similar was the view expressed by the majority of Judges in the case of S.P. GUPTA AND ORS. v. PRESIDENT OF INDIA AND ORS., , : [1982]2SCR365 ; In that case it was held the Lawyers had interest and locus standi to file the petitions in order to protect the independence of Judiciary, when a Chief Justice was transferred from one High Court to another and some additional Judges of a High Court were not confirmed, it also opined that independence of the Judiciary itself was a matter of public importance and therefore of public interest in the light of the above pronouncements to which we have referred, reliance placed on the decision of a learned single Judge of the Andhra Pradesh High Court in the case of KASANI NARAYANA AND ORS. v. GOVERNMENT OF ANDHRA PRADESH AND ORS., : AIR1985AP64 wherein it was held that strangers who had no interest in the land exempted under Section 20 of the Act could not be held to have locus standi to prosecute the Writ Petitions under Article 226 of the Constitution really would not survive for our consideration. In the case of Vasudeva at least, he had nothing else in his mind but the public interest and public good in unearthing facts and bringing it before the Court and espousing a cause which would tend to preserve purity in administration and prevent self-aggrandizement and unjust enrichment by those in power. He had made specific allegation of mala fides against the Urban Land Minister as well as the then Chief Minister. Similarly, the other Writ Petitioners the appellants in W.A.No. 1928/1989 were also men in public life. Their motive, as men in public life may not be questioned by the Court even on the ground of their political affiliations as long as their efforts would promote the cause of good and fair Government. In that view of the matter, we do not find any fault in the conclusion reached by the learned single Judge on the question of locus standi, though we will not be unmindful of the fact that more or less in the period in question several orders giving exemption from the operation of the ceiling provisions of the Act as well as permission to sell the exempted land, were issued to others and the land owner in this case as well as Revajeethu cannot be said to be the exclusive beneficiaries of any favour done by the Government.
27. As another limb of the argument of locus standi, Mr. Ganesh, learned Counsel for Revajeethu, contended that once the learned Single Judge had come to the conclusion that the impugned orders were not made as a result of the abuse of power by the then Minister for Urban Land and the then Chief Minister, he should have dropped all further investigations as only the allegation of mala fide by the Writ Petitioners had given them the locus standi to prosecute the Writ Petitions in public interest and to maintain purity in administration.
28. No doubt the argument is very appealing. When once the Court entertains a Public Interest Litigation even on the basis of a post card or inland letter or a telegram which would be hopelessly wanting in pleadings, nevertheless, the Courts undertake to look into the matter complained of whether it be in relation to illegal detention affecting personal liberty of individuals or whether it affects bonded labour or treatment of prisoners or plight of pavement dwellers or pollution of environment, on its own for the simple reason to do otherwise would be to make a mockery of Public Interest Litigation and abrogate Constitutional obligation entrusted to the Courts to uphold the Rule of Law. On the facts of the case on hand whatever may be the grievance of the parties in regard to pleadings, one cannot but fail to notice that there was express averments made by the Writ Petitioners pointing out that then Minister for Urban Land and the then Chief Minister as well as many of the public authorities like the Bangalore Development Authority and the Corporation of the City of Bangalore had failed to protect public interest for the purpose of which the said Authorities had been created. As more than once observed, when the Court is seized of a matter of public importance the person who has brought the cause or the complaint before Court loses his own importance and is, unlike the ordinary litigant, without power to withdraw either the allegations made against holders of public office or lapses of the Public Authorities except in exceptional circumstances; but may never withdraw the petition itself as observed by the Supreme Court in SHEELA BARSE'S CASE. Therefore, once the locus is conceded to move the Court and the Court is seized of the matter, the Court is free to carry out its investigation, if necessary, in public interest to its logical conclusion. A mere recording of a finding against mala fides legal or actual would not prevent the Court from looking into other aspects of the case which would sub-serve public interest and put on guard Public Authorities who have been guilty of serious administrative lapses.
29. Therefore, on the facts of this case we are satisfied that the Court need not have stopped further investigations if it came to the conclusion that the Writ Petitioners had failed to prove the alleged mala fides on the part of the then Minister for Urban Land and the then Chief Minister. We therefore must reject this contention of Mr. Ganesh subject to such exceptions which we intend to point out later in the course of this order.
30. It was next urged by Mr. Ganesh that the learned single Judge erred in declaring the Policy Decision of Group Housing taken by the respondent-State Government at a Meeting of the Committee held under the Chairmanship of the Chief Minister was in excess of the jurisdiction vested in the High Court under Article 226 of the Constitution. The thrust of the argument was that the learned single Judge misguided himself in considering the decision of that Committee in regard to Group Housing as a decision taken under the provisions of the Act. As a result of the decisions taken at that Meeting a Government Order dated 24-11-1986 bearing No. HUD 485 MNX 86 was issued by the State Government and communicated to the Commissioner, Bangalore Development Authority, with a copy to the Chairman of that Authority as well as the Secretary to the Chief Minister and the Private Secretary to the Minister for Urban Development. We see from the order of the learned single Judge (See I.L.R. 1989 Karnataka at page 2969) that he proceeded to test the Policy Decision of the State Government in regard to Group Housing vis-a-vis the scope and objects of the Act. Mr. Ganesh pointedly referred to the fact of the composition of the Committee and pointed out that it was not the Policy Decision under the Act concerning the Urban Land that may vest as a result of the implementation of the Act, but it was only a decision concerning the land that belonged to the Bangalore Development Authority within its jurisdiction or to any other Government land which would be available to the Government de hors the Act. He drew our attention in this behalf to the explanation to Sub-section (3) of Section 4 of the Act which defines Group Housing. Section 4 of the Act provides for the ceiling limit and Sub-section (3) thereof is as follows;
'(3) Notwithstanding anything contained in Sub-section (1), where in respect of any vacant land any scheme for group housing has been sanctioned by an authority competent in this behalf immediately before the commencement of this Act, then, the person holding such vacant land at such commencement shall be entitled to continue to hold such land for the purpose of group housing.'
In other words Sub-section (3) of Section 4 of the Act is an exception to the earlier provisions contained in Sub-sections (1) and (2) fixing the ceiling limit under the Act under various categories, (a), (b), (c) and (d). The expression 'dwelling unit' is defined under Clause (e) of Section 2 of the Act to mean in relation to a building or a portion of a building a unit of accommodation in such building or portion, used solely for the purpose of residence. The thrust of the argument was that the Act itself had for its object Group Housing as an exempted category to which ceiling laws of limits provided under the Act would not be applicable if such Group Housing had been sanctioned by any Competent Authority before the commencement of the Act,
31. The two provisos to Sub-section (3) of Section 4 of the Act themselves throw considerable light that the exemption so provided by the sub-section is not without guideline or meaning. Reference to Section 10 in the Explanation to Sub-section (3) of Section 4 of the Act is to save the vacant land which has been reserved for Group Housing in Sub-section (3) of Section 4 of the Act being hit by the proceedings for acquisition under Section 10 of the Act. In this context, it will be useful to keep in mind the procedural mandate under Section 10 of the Act. Under Sub-section (4) of Section 10 of the Act prohibition is imposed to transfer by way of sale, mortgage, gift, lease or otherwise any excess vacant land (including any part thereof) specified in the notification aforesaid and any such transfer made in contravention of that provision shall be deemed to be null and void and no person shall alter or cause to be altered the use of such excess vacant land.
32. The learned Counsel drew our attention to the fact that by the 1985 order a little over 16,194 sq. metres had already been exempted for the purpose of establishing industry and it was in that circumstances that the 4th respondent was compelled to make an application for exempting the remaining 3444 sq. metres of land which came to be notified as excess vacant land held by the 4th respondent in terms of Sub-section (3) of Section 10 of the Act. It is on that basis, it has been contended by the learned Counsel that Group Housing cannot be said to be alien to the scheme of the Act as held by the learned single Judge in paragraph 8.9 of the order. The real point made by the learned Counsel is that the policy of the State Government, as earlier noticed, was with reference to land which was already in the control of the Bangalore Development Authority, the respondent impleaded by order of the learned single Judge or any other Government land and it was not related to or anyway relatable to the land which had not yet vested in the State Government under the provisions of the Act i.e., in conformity with Section 10 of the Act. At the Meeting held on 22-10-1986 under the Chairmanship of the Chief Minister, the Committee formulated the policy resulting in the D.O. letter of 24-11-1986 was not a Policy Decision taken, under the Act but independently of the Act. As such, we are convinced that the learned single Judge totally misdirected himself in coming to the conclusion that the decision had been taken by the State Government to encourage individuals and not House Building Co-operative Societies to build group of houses under the Act and therefore contrary to the guidelines issued by the Central Government in its letter dated 7-5-1980 to which reference has been made by the learned single Judge in paragraph 8.9 of his order.
33. The learned Counsel drew our attention to the observations of the Supreme Court in the case of RURAL LITIGATION AND ENTITLEMENT KENDRA AND ORS. v. STATE OF UTTAR PRADESH AND ORS., , : [1987]1SCR641 In the said Decision the petitioner before the Supreme Court under Article 32 of the Constitution had challenged the grant of lease to quarry limestones in certain areas of Uttara Pradesh which was hazardous to the environment particularly to the forest growth. The Supreme Court did record a finding to the effect in the said case that that for removing the limestone quarry from the mine roads had been laid and for that purpose the hill had been interfered with. Traffic hazards for the local population both animals and men had increased. It further recorded a finding that the limestone quarries in question were estimated to satisfy roughly 3 per cent of the Country's demand for such raw material and that the Tata Iron and Steel Company was the largest consumer of the limestone for manufacturing of a special kind of steel. It was in that context, it observed that it was for the Government and the Nation, and not for the Court to decide whether the limestone deposits should be exploited at the cost of ecology and environmental considerations or the industrial requirement should be otherwise satisfied. It may be perhaps possible to exercise greater control and vigil over the operation and strike a balance between preservation and utilisation that would indeed be a matter for an expert body to examine and on the basis of appropriate advice, Government should take a policy decision and firmly implement the same.
34. Reliance was also placed on the observations made by the Supreme Court in the case of VINCENT PANIKURLANGARA v. UNION OFINDIA AND ORS., : [1987]2SCR468 That was also a case of Public Interest Litigation wherein certain directions were sought by the petitioner under Article 32 of the Constitution to protect public health and ban imports and manufacture of certain drugs which had been so recommended by the Drugs Consultative Committee. After examining the case in detail, the Supreme Court observed that having regard to the magnitude, complexity and technical nature of the enquiry involved in the matter and keeping in view the far-reaching implications of the total ban of certain medicines for which the petitioner had prayed, at the outset it was clearly indicated that the Judicial proceeding of the nature initiated was not an appropriate one for determination of such matters. It further observed that there was force in the contention of the petitioner that the Hathi Committee too was not one which could be considered as an authoritative body competent to reach definite conclusions and as such the Central Government could not be blamed for not acting upon the recommendations of that Committee.
35. We may further add that as pointed by the learned Counsel for appellant - Revajeethu if the object of the Act was to avoid concentration of urban land in the hands of a few persons and stop speculation and profiteering by use of urban land in order to bring about equitable distribution of land in urban agglomeration to sub-serve the common good then it would not make any difference whether that was accomplished through Co-operative House Building Societies as suggested by the Central Government in its letter of 7-5-1980 or individuals. We do not want to express ourselves finally at this stage on this aspect except to observe that when individuals are permitted to sub-serve the purpose of the Act there is likelihood of exploitation and profiteering and if that is checked then there should not be much to choose between the Housing Co-operatives or the individuals for purpose of group housing. .
36. In our view, this aspect of the case dealt with by the learned single Judge was a little outside the scope of investigation required to be done in the light of the causes espoused in public interest by the Writ Petitioners. In fact, Vasudeva indeed contended that the Policy Decision of 24-11-1986 was taken in order to facilitate Revajeethu and the land owner. We have found it difficult to accept it because Revajeethu as a partnership firm was constituted only on 6-1-1987 well after the Policy Decision of the Government. The two could not possibly have any connection particularly in view of the fact that on 9-1-1987 the Competent Authority under the Act had issued notification for acquiring the excess vacant land measuring 3444 sq. metres under Section 10 of the Act. Therefore, we are convinced that the Policy Decision was not a Policy Decision taken to favour any particular individual but a general policy decision taken by the Government to issue directions to Bangalore Development Authority, a Statutory Authority entrusted with the task of developing Bangalore City by providing proper layouts and distribution of sites as well as the Concurrent Authority under the Country and Town Planning Act to sub-serve the purposes and carry into effect the provisions of that Act in determining the land use and other connected matters under the said Act.
37. The learned single Judge lost sight of the provision made in Section 23 of the Act for disposal of land acquired under the Act. Legislative guidelines are contained therein. (See: Para 4 in BHIMSINGHJI'S CASE). It is therefore obvious that Policy Decision of 24-11-1986 could not have related to land which had not vested in the Government under the provisions of the Act.
38. The next contention for the appellant - Revajeethu has been that any interpretation of Section 20 of the Act which tends to restrict or interfere with the extent of power or the width of discretion vested in the State Government by the provisions of that Section should be avoided as that would be contrary to the language of that Section and therefore what was amenable for Judicial Review was the manner of exercise of power and exercise of discretion and no more.
39. On this aspect, all the Counsel appearing before us have addressed arguments and have taken us through the various Decisions of some of the other High Courts which have examined the scope of Section 20 of the Act and other provisions of the Act which have some bearing on the provisions contained in Section 20 of the Act. It is not disputed by the Counsel appearing before us that the power exercised by the State Government under Section 20 of the Act is quasi-judicial in nature and therefore every order passed under the Act must have implicit evidence in the order itself that there has been due application of mind in exercising the power coupled with discretion conferred on the State Government by Clauses (a) and (b) of Sub-section (1) of Section 20 of the Act.
40. Mr. Ganesh, learned Counsel for the appellant, has contended that the learned single Judge erred in coming to the conclusion that the State Government lacked authority under the provisions of Section 20 of the Act to grant exemption to a person holding vacant land in excess of the ceiling limit and enable such person to transfer such excess vacant land to an individual other than Housing Co-operative Societies or Group Housing Co-operative Societies for the purpose of putting up dwelling units as that would be contrary to the directions of the Central Government contained in the letter of 2/7-5-1980. It is in the light of this argument, that the scope and ambit of Section 20 of the Act should be examined by us with reference to other provisions relevant in that regard in the Act. Section 20 of the Act is as follows:
'20. Power to exempt - (1) Notwithstanding anything contained in any of the foregoing provisions of this Chapter -
(a) where any person holds vacant land in excess of the ceiling limit and the State Government is satisfied, either on its own motion or otherwise, that, having regard to the location of such land, the purpose for which such land is being or is proposed to be used and such other relevant factors as the circumstances of the case may require, it is necessary or expedient in the public interest so to do, that Government may, by order, exempt, subject to such conditions, if any, as may be specified in the order, such vacant land from the provisions of this Chapter;
(b) where any person held vacant land in excess of the ceiling limit and the State Government, either on its own motion or otherwise, is satisfied that the application of the provisions of this Chapter would cause undue hardship to such person, that Government may, by order, exempt, subject to such conditions, if any, as may be specified in the order, such vacant land from the provisions of this Chapter;
Provided that no order under this clause shall be made unless the reasons for doing so are recorded in writing.
(2) If at any time the State Government is satisfied that any of the conditions subject to which any exemption under Clause (a) or Clause (b) of Sub-section (1) is granted is not complied with by any person, it shall be competent for the State Government to withdraws, by order, such exemption after giving a reasonable opportunity to such person for making a representation against the proposed withdrawal and thereupon the provisions of this Chapter shall apply accordingly.'
41. We have already noticed that the function' of the State Government having regard to the power coupled with discretion conferred on it is quasi judicial in character. This is conceded as noticed by us by all the parties appearing before us. At this stage itself we must notice that once an authority is vested with quasi judicial functions then such Authority cannot be interfered with by outside forces even if it be the Central Government as it cannot impose its will on the State Government in its exercise of discretion and power under Section 20 of the Act. Putting it in another way, quasi judicial functions cannot be interfered with by outside agencies or if such outside agencies are permitted to interfere with the quasi-judicial function of any specified Authority, then the very character of quasi judicial function disappears. We must, therefore, approach with caution and examine the binding nature of the guidelines issued by the Central Government from time to time particularly with reference to granting of exemptions under Section 20 of the Act in view of the strong reliance placed by the learned single Judge on the letter of the Central Government bearing the date 2/7-5-1980.
42. In this behalf, it will be useful to notice at this stage itself Sections 35 and 36 of the Act which are as follows:
'35. Power of State Government to issue orders and directions to the Competent Authority - The State Government may issue such orders and directions of a general character as it may consider necessary in respect of any matter relating to the powers and duties of the Competent Authority and thereupon the Competent Authority shall give effect to such orders and directions.
'36. Power to give directions to State Government - (1) The Central Government may give such directions to any State Government as may appear to the Central Government to be necessary for carrying into execution in the State any of the provisions of this Act or of any rule made thereunder.
(2) The Central Government may require any State Government to furnish such returns, statistics, accounts and other information, as may be deemed necessary.'
43. From the plain language employed in Section 35 of the Act, it is clear that the State Government may issue orders and directions of a general character as it may consider necessary in respect of any matter relating to the powers and duties of the Competent Authority and thereupon the Competent Authority is bound to give effect to such orders and directions. In other words, and in short, the State Government has power only to issue directions and orders to the Competent Authority under the Act. The Competent Authority is defined under Clause (d) of Section 2 of the Act to mean any person or authority authorised by the State Government by notification in the Official Gazette to perform the functions of the Competent Authority for such area as may be specified in the notification and different persons or authorities may be authorised to perform different functions.
44. In contra distinction to the power conferred on the State Government under Section 35, the Act confers on the Central Government under Section 36, power to give directions to any State Government as may appear to the Central Government to be necessary for carrying into execution in the State any of the provisions of the Act or of any Rule made thereunder. In other words, the significant omission is with reference to the making of an order as in the case of the State Government under Section 35 of the Act. But it may only give directions to any State Government for carrying into execution in the State any of the provisions of the Act which undoubtedly includes Section 20 of the Act. From that it may not be possible to deduce or interpret the provision in such a way that the Central Government must substitute itself in place of the State Government in exercise of its power under Section 20 of the Act. The power conferred by Section 36 of the Act, in our opinion, should be read down to mean where there is no proper implementation of the provisions of the Act, the Central Government in appropriate cases may issue directions to States to give effect to the provisions of the Act. To illustrate, we may say, if a State Government has not disposed of applications made under Section 20 of the Act, the Central Government may issue a direction asking the State Government to dispose of such applications. But it may not do more than that, i.e., it may not tell how and in what manner such applications may be disposed of or in what way the discretion of the State Government may be exercised in a set of given cases. If the power of the Central Government for the administration of the Act is confined to the issuance of directions under Section 36 of the Act and making of Rules under Section 46 of the Act, then the State Government's power under Section 20 of the Act, to act as a quasi judicial authority is unfettered by any guidelines or anything in the nature of guidelines issued by the Central Government which the State Government may well ignore in the exercise of its quasi judicial function.
45. Now, if we examine the contents of Clause (a) of Sub-section (1) of Section 20 of the Act, we cannot but fail to notice from the language employed that the State Government must record a satisfaction either on its own motion or otherwise having regard to the location of such land, the purpose for which the land is put to use or is proposed to be used and such other relevant factors as the circumstances of the case may require and only the Government may, by order exempt subject to such conditions that may be specified by it in such an order, such excess vacant land held by a person when it is necessary or expedient in public interest so to do. In other words, learned Counsel, Shri B.R.L. Iyengar, commended to us, the State Government as a quasi judicial authority must keep in mind the location of the land, the use to which the land is put to or proposed to be put to as well as the public interest that will be served by the exemption granted from the operation of the provisions of Chapter-III in which the provision for ceiling is made. Sub-section (1) of Section 20 of the Act, we should not fail to notice, opens with a non obstante clause. In the result, despite the provisions contained in Sections 1 to 19 of the Act, the State Government is empowered to grant exemptions.
46. Similarly, Clause (b) of Sub-section (1) of Section 20 of the Act, the satisfaction of the Government must be with reference to the undue hardship that may be caused to the person who holds vacant land in excess of the ceiling limit subject to the proviso which mandates that an order granting exemption under Clause (b) of Sub-section (1) of Section 20 of the Act shall record the reasons in writing for exempting the excess land on grounds of undue hardship from the ceiling provisions of the Act. Sub-section (2) of Section 20 of the Act similarly empowers the State Government to withdraw the exemption for any breach of the conditions imposed by it while granting the exemption subject, however to giving an opportunity to the person, who is likely to be affected by such withdrawal of exemption, of making representation against the proposal of withdrawal. We have noticed earlier more than one High Court has expressed itself on the scope and ambit of Section 20 of the Act. The learned single judge as well as the Counsel for Writ Petitioners have placed strong reliance on the decision of the Gujarat High Court in the case of THAKORBHAI DAJIBHAI DESAI v. THE STATE OF GUJARAT, : AIR1980Guj189 . The learned single Judge has placed strong reliance and has extracted copiously passages from the said Decision. On a careful study of the said Decision, we are of the view that nothing is said there by the learned Judges of the Gujarat High Court which is either startling or innovative which is not evident in the plain language of the Section itself. It was a case in which Clause (b) of Sub-section (1) of Section 20 of the Act specifically fell for consideration. The expression 'Undue hardship' was the point which fell for consideration of the learned Judges. It was held that 'undue hardship' was not mere hardship. Undue hardship definitely cannot be hardship ordinarily so expressed. Any difficulty is hardship as a standard English Dictionary would indicate the meaning. Undue hardship, therefore, must be a hardship which is out of the ordinary or extraordinary. We must not lose sight of the fact that under the scheme of the Act, person holding land in excess of the ceiling limit will be deprived of it and a fixed compensation subject to a maximum limit alone is liable to be paid. Any loss of property, particularly, immoveable property, in itself is a hardship. Therefore, 'the expression 'undue hardship' has special significance. For instance even under other laws dealing with compulsory acquisition of land for public purposes. Legislature has always taken notice of the hardship caused to the person who has been deprived of the land for a public purpose. While he may be adequately compensated in accordance with the provisions of the law under which the acquisition is made, the provision is always or invariably made for payment of solatium in addition to the value of land acquired. The payment of solatium is to offer solace to the person who has suffered hardship by losing his land which in the context of our Country means displacement in many cases of a person from the land forcing him to shift to another land or another place. Therefore, undue hardship must necessarily be more than the hardship caused by mere deprivation of property. We, therefore, do not find any error on the part of the learned single Judge in finding favour with the Ruling of the Gujarat High Court on the question of what constitutes undue hardship. But the learned single Judge himself, like the learned Judges of the Gujarat High Court, has clearly stated that it is not possible to exhaustively enumerate what would be undue hardship which would cover all cases. Undue hardship would certainly vary from case to case. In Thokorbhai's case as well as in the case of land owner, in the instant case, the undue hardship pleaded was the financial liability of the owner of the land. It is in this context, the learned single Judge directed his mind to the extensive financial liability claimed by the owner which it could not meet unless the excess land under the provisions of the Act was exempted from the application of the ceiling limit with permission to sell. The financial liability could and would arise for various causes. But such liability, we have no doubt, to constitute undue hardship, should be a liability acquired before the Act came into force. It certainly cannot be undue hardship, if the liability or the undue hardship is created after the coming into force of the Act. It may not be necessary to pin point undue hardship related to heavy mortgage in favour of individuals or banks as the application of the provisions of the Act in such cases would affect not only the mortgagor but also the mortgagee. The mortgagee's security would stand extinguished if the excess land which forms part of the subject matter of the mortgage vests in the Government in terms of Section 10 of the Act. There may be several other instances which do constitute undue hardship. For instance, educational institutions run by individuals or Association of Persons having vacant land in excess of the ceiling limit would be hard pressed to provide adequate play-grounds for such educational institutions or provide for vacant land for development of the institution by increasing intake of the students or opening new disciplines to be taught. Similarly, an industry which has to diversify in order to survive economically must have at its disposal the land which otherwise would be acquired by the Government as excess land under the provisions of the Act. Yet another instance is where even an ordinary private individual not being an industry or educational institution or a trust administering charitable institutions may have excess land hit by the ceiling provisions of the Act and have a temple or a family burial ground or a memorial for the deceased members of the family which is sacred to him and him alone and who on that account may plead undue hardship and claim exemption that the ground hallowed and dedicated to the memory of his ancestors in the form of graves mausoleums or memorials shall not be desecrated. In appropriate cases, it is for the Government to satisfy itself whether such claims should be entertained and the exemption granted.
47. It will be an assumption of Jurisdiction on the part of the Courts to substitute their opinion for the satisfaction which the State Government is required to record before it makes an order either under Clause (a) or (b) or under both of Sub-section (1) of Section 20 of the Act. On this aspect of the matter, we cannot have any disagreement with the learned single Judge except to the extent we have indicated that what constitutes undue hardship shall be decided by the State Government concerned on the facts and circumstances of each case and Judiciary cannot substitute its opinion as to what constitutes undue hardship, unless in a given case, the undue hardship is no hardship at all and therefore the exercise of power by the State Government is obviously perverse and in utter disregard of the duty cast upon it and as such suffers from legal malafides.
48. In this regard, it will not be out of place to quote from Prof. Wade in regard to origin of the expression 'quasi-judicial'. The learned author in his text on Administrative Law has said this:
'It was for discretionary decisions based on policy that the term 'quasi-judicial' was introduced, so that the principles of natural justice might be applied to them so far as practicable.'
(H.W.R. Wade, Administrative Law, Fourth Edition, 417)
Even our own Supreme Court has over a period decided a number of cases tending to eliminate the sharp difference between 'quasi-judicial' function and administrative orders, so that more and more administrative acts or actions will come within the purview of Judicial Review under Article 32 or Article 226 of the Constitution, particularly, for issuance of Writ of Certiorari. It is more or less, well settled that quasi-judicial obligation even when it is not specifically may be inferred from the nature of function exercised by the specified authority.
49. Thus while examining the scope of Section 20 of the Act, the argument advanced on both sides in regard to permission to sell whether or not implicit within that Section must necessarily fall for our consideration. The learned single Judge on the facts of this case, came to the conclusion that among other things permission to sell granted to the land owner to sell the exempted land to Revajeethu, the appellant, was in violation of the mandate contained in the guidelines of the Central Government in the letter of 2/7-5-1980. In other words, the learned single Judge construed the guidelines as imposing a prohibition on the State Government to permit to sell in favour of individuals as against the Housing Co-operative required to construct dwelling units. We are of the opinion that the learned single Judge erred in doing so because guidelines or even directions under Section 36 of the Act cannot run contrary to the express provisions of the Act or the policy underlying the Act for the purpose of which the Act has been passed. Having regard to the non-obstante clause with which Section 20 begins, once the exemption is granted, the prohibition contained in Section 5 of the Act to transfer land disappears as that Section would have no application to the exempted land. Therefore, the permission to sell or prohibition to sell flows out of the express power of granting exemption. In the instant case, the exemption of 1985 was granted with a condition imposed against alienation except to the extent indicated in one of the conditions i.e., to mortgage in favour of certain selected financial institutions. Thus, the learned single Judge erred in reading into the guidelines without having due regard to the context in which it was issued i.e., in the light of the plight of Housing Co-operative to obtain vacant land after the commencement of the Act. Therefore, the letter was no more than a recommendation to the State Governments concerned, that while granting exemption, the State Government may keep in mind the needs of the Housing Co-operatives to obtain vacant land. Nothing more can be read into those guidelines and certainly not a negative mandate to prohibit alienation in favour of individuals. More or less, this view of ours finds support in the decision of the Madhya Pradesh High Court in the case of NANDAKISHORE v. STATE, : AIR1982MP33 .
50. In the same light we must see the permission granted to sell the land that was exempted, i.e., larger extent in 1985, was not really a power exercised by the State Government under Section 20 of the Act but more in the nature of its executive or incidental power deleting a condition earlier imposed so that the exempted land owner, would not attract the rigour of Sub-section (2) of Section 20 of the Act Therefore, as vehemently contended by Mr. B.R.L. Iyengar at one stage of the arguments, that the need for fresh application of mind was necessary in the case of the larger extent of land, the exemption of which had not been challenged because the ground on which the exemption was granted itself was sought to be annulled by granting permission to sell. Undoubtedly the result may be so. The power exercised is not the power to grant exemption under Section 20 of the Act. There may be any number of cases in which the exemption may be granted without a condition being imposed in regard to alienation. When Section 5 is out of the way then the exempted under either of the clauses under Sub-section (1) of Section 20 of the Act, will be free to alienate it by operation of law of property which is assured to him under Article 300A of the Constitution.
51. Section 21 of the Act which provides for treating the excess land of any person who while filing his declaration undertakes to erect dwelling units for the weaker sections to be treated as not excess land, itself, indicates that individuals also may benefit in the scheme of the Act. Whether in that process they make a profit or not will be a question of fact with which the Courts need not concern themselves. The fact remains that in the scheme of the Act or in the policy underlying the Act, avoiding concentration of wealth, individuals are not totally ruled out from taking advantage if otherwise the objects of the Act are achieved. Once we understand the scope and ambit of Section 20 of the Act in that manner, we cannot but hold that the learned single Judge was in error in considering that the exemption and permission granted to sell the exempted lands was violative of the guidelines of the Government of India contained in the letter of 2/7-5-1980.
52. However, the other reasons given by him for setting aside the impugned orders, we will have to deal separately while dealing with the arguments advanced by the learned Counsel for the appellant in that behalf.
53. Before parting with this aspect, we cannot but fail to notice the observations of the Supreme Court in the case of NARENDRA KUMAR MAHESHWARI v. UNION OF INDIA AND ORS., AIR 1982 SC 2138 wherein it was clearly laid down as follows:
'It may, however, be stated that being not statutory in character, these guidelines are not enforceable. See the observations of this Court in Fernandez v. State of Mysore, : [1967]3SCR636 . (Also see R. Abdullah Rowther v. State Transport Appellate Tribunal, AIR 1959 SC 396: Deputy Assistant, Iron and Steel Controller v. Manekchand Proprietor : [1972]3SCR1 ; Andhra Industrial Works v. CCI and E : [1975]1SCR321 ; K.M. Shanmugham v. S.R.V.S. Pvt. Ltd., : [1964]1SCR809 . A policy is not law. A statement of policy is not a prescription of binding criterion. In this connection, reference may be made to the observations of Sagnata Investments Ltd., v. Norwich Corporation [(1971) 2 QB 614 and P. 626], Also the observations in British Oxygen Co. v. Board of Trade, 1971 AC 610. See also Foulkes' Administrative Law, 6th Ed. at pages 181-184. In Ex P. Khan (1981-1 All E.R. page 40), the Court held that a circular or self made rule can become enforceable on the application of persons if it was shown that it had created legitimate expectation in their minds that the authority would abide by such a policy/guideline. However, the doctrine of legitimate expectation applies only when a person had been given reason to believe that the State will abide by the certain policy or guideline on the basis of which such applicant might have been led to take certain actions. This doctrine is akin to the doctrine of promissory estoppel. See also the observations in Lord Wilberforce in I.R.C. v. National Federation, 1982 AC 617. However, it has to be borne in mind that the guidelines on which the petitioners have relied are not statutory in character. These guidelines are not judicially enforceable. The competent authority might depart from these guidelines where the proper exercise of his discretion so warrants. In the present case, the statute provided that rules can be made by the Central Government only. Further-more, according to Section 6(2) of the Act, the competent authority has the power and jurisdiction to condone any deviation from even the statutory requirements prescribed under Sections 3 and 4 of the Act. In Regina v. Preston Supplementary (1975) 1 WLR 624 at P. 631, it had been held that the Act should be administered with as little technicality as possible. Judicial review of these matters, though can always be made where there was arbitrariness and mala fide and where the purpose of an authority in exercising its statutory power and that of legislature in conferring the powers are demonstrably at variance should be exercised cautiously and soberly.'
It further laid down that the guidelines did not affect or regulate the right of any person other than the Company applying for consent. The manner of application of these guidelines, whether strict or lax, did not either directly or indirectly, affect the rights or potential rights of any others or deprive them, directly or indirectly, of any advantages or benefits to which they were or would have been entitled. In this context, there was only a very limited scope for Judicial Review on the ground that the guidelines had not been followed or had been deviated from. Any member of the public could perhaps claim that such of the guidelines as impose controls intended to safeguard the interests of members of the public, investing in such public issues, should be strictly enforced and not departed from; departure therefrom would take away the protection provided to them. The scope for such challenge would necessarily be very narrow and restricted and would depend to a considerable extent on the nature and extent of the deviation................. A Court, however, would be reluctant to interfere simply because one or more of the guidelines had not been adhered to even where there were substantial deviations, unless such deviations were by nature and extent such as to prejudice the interests of the public which it was their avowed object to protect. Per contra, the Court would be inclined to perhaps overlook or ignore such deviations, if the object of the statute or public interest warranted, justified or necessitated such deviations in a particular case. That was because guidelines, by their very nature, did not fall into the category of legislation, direct, subordinate or ancillary. They had only an advisory role to play and non-adherence to or deviation from them was necessarily and implicitly permissible if the circumstances of any particular fact or law situation warranted the same. Judicial control took over only where the deviation either involved arbitrariness or discrimination or was so fundamental as to undermine a basic public purpose which the guidelines and the statute under which they were issued were intended to achieve.
54. We may also usefully refer to the decision of the Supreme Court in the case of STATE OF UP. AND ORS. v. DHARMANDER PRASAD SINGH, : [1989]1SCR176 to the following effect:
'However, Judicial review under Article 226 cannot be converted into appeal. Judicial review is directed, not against the decision, but is confined to the examination of the decision making process. In Chief Constable of the North Wales Police v. Evans (1982) 1 W.L.R. 1155 refers to the merits-legality distinction in judicial review. Lord Hailsham said:'The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the Court.'
Lord Brightman observed:
'.....Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.....'
And held that it would be an error to think:
'....that the Court sits in Judgment not only on the correctness of the decision-making process but also on the correctness of the decision itself.'
55. In the light of the above pronouncements which are binding on us, learned single Judge was clearly in error in embarking on an investigation as to the identity of the extent of the property, the past history of the acquisition, dropping of the acquisition proceedings, inaccuracy of the boundaries and identity of the lands, claims of the Bangalore Development Authority which had remained dormant for over 20 years and such other factors which were not germane to the power exercised by the State Government under Section 20 of the Act in disposing of the applications of the land owner seeking no more than relaxation of the condition of exemption granted earlier in 1985 and exemption and permission to sell, the smaller extent of land that had been notified as excess land under the Act on grounds of undue hardship.
56. The learned single Judge after having reached the conclusion that the orders impugned were not sustainable in law proceeded to give certain directions and what he considered as facts proved with reference to breach of condition by the appellant as well as the land owner. The learned single Judge specifically relied upon the affidavit filed on behalf of the land owner wherein it was admitted that a sum little over 38 lakhs had been paid to partners of the firm who had been expelled long prior to sale in favour of Revajeethu and as such there was breach of condition that the sale proceeds or consideration was not applied towards discharge of debts disclosed in the affidavit filed before the Government, more so, when the affidavit so filed had shown the obligation to the expelled partners only in the sum of Rs. 80,000/- or under. Consequently, he found that to be sufficient reason to set aside the sale deed itself for breach of condition.
57. Under Sub-section (2) of Section 20 of the Act, it is only the State Government which may after giving adequate opportunity to represent may withdraw the exemption granted under Sub-section (1) of Section 20 of the Act. That power cannot be usurped by the Court for that would be acting as an appellate Court or assuming jurisdiction where none exists.
58. We should not fail to notice that rights, whatever they may be, of the expelled partners had been directly or indirectly affected by the order of the learned single Judge without hearing them or they being made parties to the proceedings under Article 226 of the Constitution before the learned single Judge.
59. It is in the light of the above that we must now consider the argument of Shri Ganesh, Counsel for the appellant and Shri S. Vijayashankar, Counsel for the Land Owner that the learned single Judge could not have without pleadings, recording oral and/or documentary evidence and impleading proper parties decide questions of title to immoveable property on mere affidavits and records, that too incomplete records. This argument relates to the decisions of the learned single Judge on Point No. 2 formulated by him.
60. We may at the outset state that we are also handicapped by lack of pleadings and necessary parties and the inadequacy of the records that are not complete.
61. No doubt, Mr. Vasudeva in his petition had out-lined the history of the land acquired by Rao Saheb Munivenkatappa from his vendors which in turn had been notified for acquisition by the then Bangalore City Improvement Trust Board for a public purpose, namely, for creating lay-out, park and boulevard etc. The notification issued under Section 4(1) of the Land Acquisition Act is dated 1st September, 1948. The total extent of land in the relevant survey numbers or sub-survey numbers is shown to be 2-08 guntas in S.No. 6/1 and 4-04 guntas in S.No. 6/2. The name of the owner was shown as B. Munivenkatappa in respect of both the survey numbers. According to that notification whole of the extent in the said survey numbers was required. Thus, at that point of time the revenue records showed that B. Munivenkatappa owned 6-12 guntas of land. The boundaries shown in the notification do not really assist in identifying the property for the boundaries on all the four sides East, West, South and North, merely gave survey numbers of the lands situate in those directions and at that point of time were shown as agricultural lands. That at a subsequent point of time most of it came to be withdrawn from acquisition is also not in dispute as noticed by the learned single Judge. No document such as the notification under Section 48 of the Land Acquisition Act was ever placed before the learned single Judge. He drew his inferences from the Register maintained by the Bangalore Development Authority which was none other than the successor to the Bangalore City Improvement Trust Board. No doubt, such Register is public record within the meaning of what constitutes to be public records under the Evidence Act. But no presumptive value as such to entries therein is available as to its correctness. Abundant material appears to have been dug out by the Special Land Acquisition Officer from the records after the learned single Judge had directed that the Bangalore Development Authority be impleaded as respondent in the proceedings before it. A letter of 24-1-1956 of the Special Land Acquisition Officer of the then City Improvement Trust Board, Bangalore, is also relied upon to show that only an extent of 1 acre and 2 guntas and 58 sq. yards out of S.Nos. 6/1 and 6/2 of Dasarahalli Village, Bangalore South Taluk belonging to Rao Saheb B. Munivenkatappa alone need be acquired. To that letter, there were Annexures referred to as draft copies of withdrawal statements in respect of the remaining area which was shown as 5-09 guntas and 63 sq. yards. But the Land Acquisition Officer did not place before the Court any evidence that the said 1-02 guntas and 58 sq. yards was ever taken possession of under any mahazar as required by the provisions of the Land Acquisition Act. Certain other documents such as sketch etc. had been relied upon by the learned single Judge unilaterally without affording sufficient opportunity to the parties particularly, the land owner to meet adverse inferences drawn against the land owner on the basis of those records or entries therein. In para 6.9 the learned single Judge noticed that an extent of 24 guntas of land and 85 sq. yards adjoining the lands which was with the City Improvement Trust Board was proposed to be exchanged, but nothing came out of that. We are mentioning these only having regard to the fact that even in a Public Interest Litigation, the Court under Article 226 of the Constitution does not proceed to determine questions of title on the motion of a person who himself does not have title to the property. None of the Writ Petitioners claim title to the properties in questions, namely, the lands exempted from the provisions of the Act to the extent permitted by the impugned orders.
62. As far back as in the year 1957, the Supreme Court in the case of SOHAN LAL v. UNION OF INDIA AND ANR., A1R 1957 SC 529 @ 531 ruled as follows;
'(5) We do not propose to enquire into the merits of the rival claims of title to the property in dispute set up by the appellant and Jagan Nath. If we were to do so, we would be entering into a field of investigation which is more appropriate for a Civil Court in a properly constituted suit to do rather than for a Court exercising the prerogative of issuing writs. These are questions of fact and law which are in dispute requiring determination before the respective claims of the parties to this appeal can be decided. Before the property in dispute can be restored to Jagan Nath it will be necessary to declare that he had title in that property and was entitled to recover possession of it. This would in effect amount to passing a decree in his favour. In the circumstances to be mentioned hereafter, it is a matter for serious consideration whether in proceedings under Article 226 of the Constitution such a declaration ought to be made and restoration of the property to Jagan Nath be ordered.'
63. Again the case of UNION OF INDIA v. T.R.VARMA, : (1958)IILLJ259SC it was held, merits of rival claims to property shall not be investigated in summary proceedings under Article 226 of the Constitution and on the basis of affidavits which is the normal procedure adopted by the High Courts in the Country in such proceedings. The same principles have been reiterated in the case of UNION OF INDIA v. GHAUS MOHAMMAD , : 1961CriLJ703 and it is as follows:
'The question whether the respondent is a foreigner is a question of fact and where there is a great deal of dispute on the question which would require a detailed examination of evidence a proceeding under Article 226 of the Constitution would not be appropriate for a decision of the question. The question is best decided by a suit.'
There has been no departure from the cardinal principle that under Article 226 of the Constitution questions of title shall not be decided, particularly, with reference to immoveable property and when title is disputed. We must in this behalf and on our own state the following; in cases of all properties in respect of which there is dispute between persons who claim to be rival owners, the lis is strictly between such claimants and that right is not transferable except by procedure known to law to members of the public who may agitate the same and question the title on behalf of one or the other of the rival claimants. Therefore, whatever may be the bona fides and locus standi of the Writ Petitioners on the facts of this case, whatever may be the pleadings and material they placed before the Court i.e., before the learned single Judge by way of pleadings and reference to official records, whatever may be the affidavit filed by the Bangalore Development Authority, the fact remains that the entire exercise of investigating the extent of the land in S.No. 6/1 and 6/2 of Dasarahalli Village, its nature, the acquisition and relinquising from acquisition was all futile when the real owner namely, the State in which we must presume or the erstwhile City Improvement Trust Board, Bangalore, in whom the title had vested had kept quiet for such a long time without commencing any proceedings to assert its title and possession. Inadequacy of pleadings on both sides without understanding the implications should not have been relied by the learned single Judge to question the title of the land owner, in proceedings under Article 226 of the Constitution in the light of the law laid down by the Supreme Court to which we have already adverted to above. Therefore, we do find that the learned single Judge acted in excess of his jurisdiction in reaching the conclusion which he did under Point No. 2 and the directions which we gave in the light of the conclusions reached by him on such material.
64. In any event the exercise was academic as the State Government while proceedings were in progress before the learned single Judge directed the Bangalore Development Authority to make sure that Revajeethu set apart an extent of 1 acre and 2 guntas of land purchased by it for the purpose of park, boulevard and road originally envisaged by the erstwhile City Improvement Trust Board, Bangalore. This is evidenced by an order bearing No. HUD 36 ULC 88 dated 23-7-1988 directing the B.D.A. to ensure, before sanctioning the plans of Revajeethu to provide for park, boulevard and road in the land in question.
65. This apart it is doubtful whether the High Court exercising jurisdiction under Article 226 of the Constitution may set aside an instrument of sale to which the State, a local authority or other authority is not a party. Specific procedure is provided under Section 39 of the Special Relief Act for cancellation of instruments by a suit by a person who has apprehension that an instrument if left outstanding may cause him injury. The sale deed or instrument of sale between the land owner and Revajeethu was not going to cause injury to any person in the sense that expression is used in Section 39 of the Special Relief Act. Writ Petitions were filed in public interest not on account of personal injury apprehended and parties to the instrument of sale were private individuals not amenable to a Writ of Certiorari. The only direction or order that the High Court under Article 226 of the Constitution could have passed was to quash the order or orders of exemption for any infirmity in them and allow the law to take its course in regard to the validity of the instrument of sale.
66. This leaves us with the only other question which the appellant in W.A. Nos. 2083 to 2085/1989 filed by Vasudeva and W.A.No. 1928 of 1989 by D.P. Sharma and another falls to be considered by us and that is whether the learned single Judge erred in not recording a finding on the available material that the then Chief Minister and the Urban Land Minister had acted mala fide in the passing of the impugned orders.
67. We cannot do any better to understand the thrust of the allegations which formed the foundation for laying the charge of mala fide at the doors of the 2nd and 8th respondents, namely, Urban Land Minister and the then Chief Minister than reproduce what the learned single Judge has summarised while considering Point No. 4 formulated by him:
'9.1. It is the case of the petitioners that Smt. Shobha Makhija is related to respondent-8 being the sister of the son-in-law of respondent-8 who was the Chief Minister of the State at the relevant point of time; that she holds 50% interest in the 5th respondent-partnership firm, as such her interest in the firm is equivalent to the interest of the remaining 18 partners; that the 2nd respondent at the relevant point of time was the Minister for Urban Development when the 8th respondent was the Chief Minister; that the State Government adopted the policy to encourage individuals who are prepared to take up group-housing only with a view to benefit respondent-5; that the land in question was identified by Shobha Makhija (partner of respondent-5) and respondent-8 and thereafter a policy decision was taken by the Government to encourage private individuals who come forward to take up group-housing; that it was because of this, in the application dated 9-1-1987 filed by the 4th respondent before the 2nd respondent, the proposal to sell the land in question to the 5th respondent was mentioned and it was prayed to grant exemption and permission to sell the land in question to the 5th respondent to develop the same by building group housing to the extent of 60% and row of houses in the balance extent of 40% and to sell the same to the intended buyers of such houses; that because of this, the file relating to the application dated 9-1-1987 seeking exemption and permission to sell the land in question moved very swiftly; that the recommendation from the Special Deputy Commissioner was obtained within 20 days and the first order was passed on 6-3-1987, that immediately thereafter, the 4th respondent made an application dated 24-3-1987 before the 2nd respondent seeking permission to sell the remaining portion of the land measuring 3444 square metres to the 6th respondent; that this application was also processed very swiftly and on the basis of the report dated 27-3-1987 made by the Special Deputy Commissioner, Bangalore Urban Land Ceiling, the permission was granted on 15-4-1987 and the order was issued on 18-4-1987; that the 2nd respondent being the Minister for Housing and Urban Development, took undue interest in the matter as the relative of the Chief Minister (respondent-8) was interested and saw to it that the permission sought for by the 4th respondent to sell the land in question to the 5th respondent was granted without much delay; that even before the 5th respondent had come into existence, the 4th respondent was contacted by the agent of the 5th respondent and the deal was settled and in order to facilitate the grant of permission by the State Government, the 5th respondent's name was stated in the application; that the factors as to whether the grant of permission to sell the land in question to the 5th respondent was in the public interest and as to whether there was undue hardship caused to respondent-4 and if there was undue hardship caused to rospondont-4 due to indebtedness no safeguards or the modus operandi were directed to be adopted to see that the land fetches a fair market value and the creditors are paid so that respondent-4 is relieved of indebtedness, and all other factors relevant to the issue were not at all examined in a quasi judicial manner as the 8th respondent was interested to see that his relative Smt, Shobha Makhija who holds 50% interest in the 5th respondent-partnership was benefited. It is also contended that even before respondent No. 5 was registered, the deal to sell the vacant land in question to respondent-5 was settled as the agent of the 5th respondent approached the 4th respondent even before the application was filed. In this regard the petitioners relied upon the very averments made by respondent-4 at para 1.8 of the statement of objections filed in W.P.Nos. 8546 to 8548 of 1988. It is also further contended that Shri Talfam N. Nanjunda Shetty, the father of Shri T.N. Umesh and Shri T.N. Sateesh, partners of respondent-5 firm, had business and financial connection with the brother of Smt. Shobha Makhija and he was closely associated with the Chief Minister; that the considerable amount for paying the consideration flowed from his business concerns; that respondent-5 firm came to be constituted mainly to develop the immoveable property to be acquired by the firm to an extent of 5 acres 24 guntas in Sy.Nos. 6/1 and 6/2 of Dasarahalli and to carry on business as builders and developers of flats, shops, commercial complex and other types of buildings, dealers in real estate, therefore it is contended that the deal was settled between respondent-4 and Smt. Shobha Makhija and Tallam N. Nanjunda Shetty with the knowledge of respondent-8 as otherwise it would not have been possible for them to specifically mention the land in question in the partnership deed.'
Before us also more or less the same points have been urged by the learned Senior Counsel appearing for Shri A.K. Subbaiah, Counsel for Appellant in W.A.No.1928/1989 and Mr. Vasudeva the appellant in the other Appeals who were the Writ Petitioners before the learned single Judge. The learned Senior Counsel Shri B.R.L. Iyengar laid stress on the sequence of events commencing with the formulation of policy in regard to utilisation of urban land for providing dwelling units by individuals and firms in October, 1986 culminating in the orders impugned in the Writ Petitions. The emphasis has been placed on the formation of the partnership firm Revajeethu on 6-1-1987. On the very day namely, on 9-1-1987, when the order for acquisition of excess land came to be passed an application to sell the entire extent of 5 acres 24 guntas to 5th respondent came to be made before the 2nd respondent - Minister for Urban Land. On 12-1-1987 the Minister directed the application to be processed. In the meanwhile, copies of the application and other material had been filed before the Special Deputy Commissioner for Urban Land. On 17-1-1987 the Special Deputy Commissioner for Urban Land called for report from the Special Land Acquisition Officer, Bangalore Development Authority. The Land Acquisition Officer submitted his report on 21-1-1987 pointing out the position in respect of 1-02 guntas and 58 sq. yards which according to him had been acquired in 1945 itself. On that very same day, the Special Deputy Commissioner made the report to the Government. On 25th February, 1987 the Government issued circular regarding hardships founded on indebtedness etc. On the very same day, the Secretary put up the note and on 4-3-1987 the Urban Land Minister approved the order and the same was issued on 6-3-1987. On 24-3-1987 yet another application was made in respect of 3444 sq. metres which had not been exempted under the 1985 order. On 27-3-1987 the Special Deputy Commissioner submitted his report even before he had received the necessary instructions in that behalf. On 18-4-1987 the 2nd order impugned granting exemption and permission to sell 3444 sq. metres came to be passed. On 5th June 1987 the partnership was registered and in September, 1987 the sale deed was executed in terms of the impugned orders in favour of Revajeethu by the land owner. The emphasis laid by the Senior Counsel Shri B.R.L Iyengar has been on the speed at which the files had moved and the interest taken by the Special Deputy Commissioner for Urban Land and other officials to see that the matter was hurried through. He, therefore, submitted that the sequence of events demonstrated that there was no proper application of mind in granting exemption under Section 20 of the Act. At the same time, it was conceded by Shri B.R.L. Iyengar that the exemption granted for a little over 16,000 sq. metres in the year 1985 was undoubtedly in public interest as it was in conformity with the guidelines issued by the Government for granting exemption for establishment of industry issued by the Government of India. The thrust of the argument was that when the same was permitted to be sold by the first of the impugned orders, there should have been fresh application of mind and therefore it was conclusive evidence of total lack of application of mind. We have already dealt with this aspect earlier while dealing with the scope of Section 20 of the Act. The guidelines cannot be construed as directions issued under Section 36 of the Act. In any event, permission was sought to sell on grounds of hardship not for grant of exemption but to relax the condition imposed in the exemption order against alienation. Therefore, as pointed oat by us, the application of mind was not under the provisions of Section 20 of the Act in so far as it related to 16,000 and odd sq. metres exempted in the year 1985 but under the executive power of the State to relax the conditions which it had imposed. In this behalf, it will be useful to extract the condition in the order of 17th July, 1985. Condition No. (iii) reads as follows:
'(iii) The persons mentioned in column 1 of the schedule shall not transfer by way of sale, mortgage, gift, lease or otherwise the lands described in columns 2 and 3 of the schedule without prior permission of Government and such permission shall be subject to such conditions as Government may deem fit to impose.'
68. Therefore, much of the force in the argument that there was need for fresh application of mind does not appear to be well founded in as much as the condition imposed as above itself reserved liberty to the grantee of the exemption to approach the Government for relaxation of that condition and it was open to the Government to so relax if it was satisfied that the circumstances warranted such relaxation subject to such conditions which it may in turn impose regarding alienation. Once that part of the action falls outside the scope of Section 20 of the Act, that a quasi-judicial authority has acted without proper application of mind must necessarily fall to the ground.
69. Yet another limb of the same argument was the speed with which the papers were processed, exemption and permission granted. In Narendra Kumar's case supra, the Supreme Court had occasion to consider this aspect with reference to haste and favouritism. It is useful to extract the relevant paragraph which is as follows:
'This has caused us certain amount of anxiety. Speed is good; haste is bad, and it is always desirable to bear in mind that one should hasten slowly. However, whether in a particular case, there was haste or speed depends upon the objective situation or on overall appraisement of the situation. Here, as discussed earlier, the material shows that the details of the proposals have been examined and discussed and that an examination of the merits has not been a casualty due to the speed with which the application was processed; and especially in view of the fact that no injury has been caused to the investors and no substantial loss to their securities have been occasioned. We are of the opinion that much cannot be made of this criticism. Learned Additional Solicitor General placed before us other instances where applications had been sanctioned within shorter times.'
70. From the above it is clear that merely because files have been processed with great speed there need not necessarily be an inference that it was done as an act of favouritism. We have already pointed out earlier that even in other cases the files have been disposed of within a short time from the date of application. In fact, the 2nd respondent-Urban Land Minister is on record in his affidavit that he was always in the habit of passing the orders on applications made under Section 20 of the Act with the utmost speed and without delay and that is borne out by the records. Therefore, we cannot accept the argument that because of the speed at which the papers moved, the Court should infer legal mala fides and such speed and haste was due to the intention of conferring undue favour on the party concerned namely, the major partner of Revajeethu. In fact, the learned Judge has pointed out in the course of his order at para 9.11 as follows:
'All this shows that respondent-4 itself is capable of getting the things done at the official level. Added to this, one of the partners of respondent-5 firm holding major share was the relation of respondent-9, therefore respondents 4 and 5 and Shri Tailam Nanjunda Shetty were themselves capable of getting the work done as swiftly as possible, at the official level without the knowledge of and notice to and interference by respondents 2 and 8 for which respondents 2 and 8 cannot be held responsible.'
71. It was next argued by Mr. B.R.L. Iyengar, Senior Counsel, that where there was lack of good faith and honesty and honest negligence could be distinguished from negligence with or in respect of knowledge of public harm that was caused, the Court should draw an inference of legal or even actual mala fides. Our attention was drawn to the Ruling of the Supreme Court in the case of MUNICIPALITY OF BHIWANDI AND NIZAMPUR v. KAILASH SIZING WORKS, : [1975]2SCR123 the passage relied upon by the learned Counsel is at paragraph-12 of the Judgment as reported in the All India Reporter and it is as follows:
'In Jones v. Gordeon, (1877) 2 App. Cas 616 Lord Blackburn pointed out the distinction between the case of a person who was honestly blundering and careless, and the case of a person who has acted not honestly. An authority is not acting honestly where an authority has a suspicion that there is something wrong and does not make further enquiries. Being aware of the possible harm to others, and acting in spite thereof, is acting with reckless disregard of consequences. It is worse than negligence, for negligent action is that, the consequences of which, the Law presumes to be present in the mind of the negligent person, whether actually it was there or not. This legal presumption is drawn through the well known hypothetical reasonable man. Reckless disregard of consequences and mala fides stand equal, where the actual state of mind of the actor is relevant. This is so in the eye of law, even if there might be variations in the degree of moral reproach deserved by recklessness and mala fides.'
We do not see how there is want of good faith in the instant case. We have referred to the number of exemptions granted from the provisions of the ceiling limit under the Act earlier in the course of our order. It cannot be that there was lack of good faith and there was negligence on the part of the Government in the passing of the impugned orders only to attract the rigour of the Ruling of the Supreme Court on which the learned Counsel relied upon. Similarly, reliance placed on a vintage English Ruling in the case of SUSANNAH SHARP v. WAKEFIELD AND ORS., 1891 A.C. 173 we do not think is of much assistance. The passage relied upon is from the Judgment (speech) of Lord Halsbury, Lord Chancellor and it is as follows:
'An extensive power is confided to the justices in their capacity as justices to be exercised judicially; and 'discretion' means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion: Rooke's case; according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself.'
That dicta of Lord Halsbury has been followed more or less without any dilution in all cases where discretion has to be exercised judiciously and with responsibility. While discussing the scope and ambit of Section 20 of the Act we have dealt with the Indian decisions on the subject which have relevance and the extent of Judicial Review permissible in such acts of discretion performed by Authorities vested with power to decide something in favour of an applicant like Revajeethu and the land owner. In this behalf, it will be useful to notice the submission made by Mr. S. Vijayashankar in opposition to the argument of Mr. Iyengar. Our attention was drawn to a Division Bench decision of the Madhya Pradesh High Court arising under the Act. The learned Judges in the case of Nandakishore v. State of M.P. examining the scope of Section 20 of the Act ruled as follows:
'On a case of undue hardship being made out, the State Government may by order exempt subject to such conditions, if any, as may be specified in order, such vacant land from the provisions of the said Chapter. Thus in essence the provision is for the benefit of the holder and its object appears to be to grant exemption so as to avert causing of undue hardship to him by operation of the law. If the State Government feels satisfied that a case has been made out for grant of exemption claimed, then an order of exemption may be passed even without hearing the claimant. An order in favour of a party can be passed behind his back even. But the question is whether an order affecting the interests of the claimant adversely can be passed without hearing him. Having regard to the object which the provisions placed in Section 20(1)(b) of the Act have to achieve and also having regard to the serious consequences which will ensue in case the claim for exemption is rejected without hearing the claimant, it has to be held that the claimant has to be heard before refusal of his claim for exemption, so that he may show that there will be undue hardship to him in case exemption is not granted. Section 20(1)(b) of the Act does not negate natural justice and in absence of express exclusion of the rule of audi alteram partem, it is fair, indeed fundamental, that the person claiming exemption should not be prejudiced by action without opportunity to show the contrary.'
72. From the above it is clear, the learned Judges were dealing with a case where the Government had refused the exemption prayed for in terms of Clause (b) of Sub-section (1) of Section 20 of the Act peremptorily. In that context it was held that the provision was beneficial provision and when the benefit of the provisions is denied the person had a right to be heard. In other words, the Legislature itself looks upon with favour the persons placed in great difficulties to seek exemption as a matter of right and therefore if we were to infer legal mala fides on grounds of lack of good faith, there had to be much more than material to which our attention was drawn by the learned Senior Counsel.
73. We have seen from the order of the learned single Judge and the copious references he had made to averments in the various affidavits filed by the parties that material was not wanting to evidence proper application of mind. The learned single Judge reasoned that such material was not in conformity with the guidelines or recommendations of the Central Government that would enable the State Government to grant exemption under Section 20(1)(a) and permission to sell as well under both the Clauses (a) and (b) of Sub-section (1) of Section 20 of the Act. He also reasoned that there was violation of the conditions imposed while granting permission to sell in as much as the sale consideration was not properly applied towards eliminating the hardship, the undue hardship, suffered by the land owner. We have earlier in the course of our Order pointed out that breach of the conditions in the impugned orders was entirely within the domain of the State Government under Sub-section (2) of Section 20 of the Act, the Court could not usurp that power or step into that exclusive domain reserved for the State Government by Section 20(2) of the Act.
74. Mr. B.R.L. Iyengar drew our attention to the Ruling of the Division Bench of the Andhra Pradesh High Court in the case of KATYA CO-OPERATIVE BUILDING SOCIETY LIMITED AND ORS. v. GOVERNMENT OF ANDHRA PRADESH AND ORS., : AIR1985AP242 In the said case, the Division Bench of that High Court has held that the guidelines contained in the letter of the Government of India dated 6-1-1977 and 7-5-1980 were directions issued under Section 36 of the Act. But we have already given our reasons, following the Ruling of the Supreme Court, that such guidelines are at best recommendations or suggestions and cannot bind the exercise of the quasi-judicial power of the State under Section 20 of the Act. Therefore, in conformity with the Ruling of the Supreme Court in regard to the effect of guidelines or suggestions which are not in the nature of a command or an order or direction, we respectfully disagree with the views expressed by the learned Judge of the Andhra Pradesh High Court.
75. In support of the proposition as to what would constitute legal mala fides, the learned Senior Counsel Mr. B.R.L. Iyengar drew our attention to the Ruling of the House of Lords in the case of ROBERTS v. HOPWOOD AND ORS.. 1925 A.C. 578. In that case it was held that the discretion conferred upon the Council by the statute must be exercised reasonably, and that the fixing by the Council of an arbitrary sum for wages without regard to existing labour conditions was not an exercise of that discretion; (2) that an expenditure upon a lawful object might be so excessive as to be unlawful, and that to the extent by which the amount exceeded legality the Auditor was bound to disallow it and surcharge the excess upon the persons responsible. The thrust of the argument was that once having acquired the land for a public purpose then having released from acquisition in public interest, it was imperative on the part of the Government to direct its enquiry towards denial of needs of the public vis-a-vis the interest of the applicant who claimed to have suffered undue hardship. If such enquiry was not held, it was argued, it would not be a proper exercise of discretion vested in the State Government under Section 20 of the Act and as such the impugned orders would suffer from legal mala fides. We do not think we should accede to that contention. Indeed, while examining the scope of Section 20 of the Act, we have pointed out that Group Housing is not necessarily in all cases a policy that would enure to the benefit of the entrepreneur but will also benefit the public as solving the housing problem is also the aim of the statute by making available the surplus land that would otherwise vest in the Government under the Act to provide and meet the need of increased demand for accommodation.
76. We have also seen with reference to Section 21 of the Act that provides for exploitation of excess land if dwelling units for the lesser income group is provided by the owner. Therefore, when the exemption given is in furtherance of one of the objects of the Act, though not exactly in line with the recommendations of the Central Government i.e., to release the land in favour of Housing Co-operatives, we cannot agree that asking Revajeethu to build dwelling units would not also serve a public purpose. Therefore, we are of the view that the Government while devising the policy to encourage individuals and firms and the like of them to provide dwelling units had applied its mind sufficiently to the public need and as such applied that policy in granting exemption and permission not only in the case of Revajeethu but also in the cases to which we have earlier referred where twice the amount of land was released in favour of the land owner with identical conditions. In that case land was released from the rigour of the law in favour of one Ramesh in the same area. Therefore, we must reject that argument as well.
77. Certain submissions were made in regard to actual mala fides by Mr. B.R.L. Iyengar regard being had to the inadequacy of denial positively in the affidavits filed by the Urban Land Minister and the then Chief Minister. We do not agree that there was no specific denial by the then Chief Minister or the Urban Land Minister in regard to the allegation of mala fides. May be, the denial was not as elaborate as another person in the same position would have done. We must examine the general and vague nature of the allegations made before we hold that respondents 2 and 8 guilty of not adequately traversing the allegations of mala fides against them, if there was want of pleadings, that was applicable to both the Writ Petitioners and respondents 2 and 8. It is the totality of the averments in the affidavits which we must look at and not piece by piece and then pass Judgment. Therefore, even if that is attributed to the statement filed by the State Government, that there was no specific denial that the land was acquired by the predecessor of Bangalore Development Authority, we find that acquisition was shrouded in some mystery and proper documents had not been produced before the Court. The learned single Judge relied upon secondary evidence to come to the conclusion that certain portions of the land had stood acquired; but there was no direct evidence of possession having been taken by the City of Bangalore Improvement Trust Board at the relevant time. Therefore, in the light of the affidavit filed by the Bangalore Development Authority on the directions of the Court, it could not be said that it was conclusively established that the land had been acquired. In any event, we have pointed out earlier; that that has become academic since the land owner and Revajeethu have consented to accommodate the boulevard, park and the road when they submit their plans for approval of the Bangalore Development Authority in regard to land user as that Authority is also the Competent Authority under the Country and Town Planning. Act. Therefore, we do not find any substance that there has been actual mala fide committed by the Government in not traversing in regard to the fact of earlier acquisition in its statement of objections.
78. We may only state that Mr. Vasudeva the Writ Petitioner had in prosecuting his appeals against the denial of his prayer for holding respondents 2 and 8 guilty of mala fide exercise of power did no more than submit arguments similar to the arguments submitted by Mr. B.R.L. Iyengar for the other appellants in W.A.No. 1928/1989. He, however, submitted that certain facts found proved in the cases gave room for serious doubt that respondents 2 and 8 might have used their official position to help respondent-5, having regard to the circular of February, 1987. It was contended that respondents 2 and 8 had acted mala fide but then there was nothing in the second of the instructions in that circular which ran contrary to what we pointed out in regard to relaxing the condition that may have been imposed on alienation when exemption was granted. At the cost of repetition, we must state. Section 20 of the Act does not speak of permission to sell; by operation of taw the exempted land is freed from the rigour of the prohibition on transfer imposed in the preceding Sections particularly Section 5 of the Act. Therefore, condition against alienation imposed at the time of granting exemption is so imposed in exercise of the power under Sub-section (1) of Section 20 of the Act. The relaxation of that condition in appropriate cases will not fall as a matter covered by Section 20 of the Act. There may be instances where exemptions may be granted without any condition imposed. For instance, a case where somebody owns vacant land which is only a few metres in excess of the ceiling imposed. Such excess land vesting in the State Government may not be of use to anybody but the owner of the land. In such cases, no condition may be imposed for sale of such land. We have pointed out certain other instances where the grounds for exemption are such that question of imposing restriction on sale may not arise at all particularly when such rights affect the rights of mortgagee whose security would otherwise be diminished. Therefore, for the reasons, we have rejected Mr. E.R.L. Iyengar's contentions, we must also reject Mr. Vasudeva's contentions in regard to mala fide exercise of power.
79. He further urged before us that there was violation of one of the conditions as the sale was not effected within the period of six months. Factually, we find that to be not correct as the sale had been completed within the period of six months as permission was granted only on 18-4-1987, six months therefrom would be 18-10-1987, but the sale deed was executed in September 1987 itself. Therefore, there is no substance in that argument.
80. A feeble attempt was made to point out that some officer attached to the Chief Minister had induced registration of the document from which we should infer the involvement of the Chief Minister. We do not think the materials produced are such that Court should act on such materials to infer mala fides. The learned single Judge rightly held, relying upon the decision of the Supreme Court in ROYAPPA'S CASE, : (1974)ILLJ172SC to the effect:
'The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charges of unworthy conduct against ministers and other high authorities, not because of any special status which they are supposed to enjoy, nor because they are highly placed in social life or administrative set up - these considerations are wholly irrelevant in judicial approach - but because otherwise, functioning effectively would become difficult in a democracy. It is from this stand point that we must assess the merits of the allegations of mala fides made by the petitioners against the second respondent.'
And wisely ruled suspicion was not proof and allegation of mala fides being quasi criminal in character, the benefit of doubt, if any, should go in favour of the persons against whom the allegations were made. We, therefore, do not find substance in the Appeals filed by the Writ Petitioners,
81. In regard to finding of the learned single Judge on Point No. 4, it may be useful for us to notice the argument advanced on behalf of the Chief Minister by Mr. Udaya Holla, the learned Counsel. He pointed out that Mrs. Makhija the major partner in Revajeethu was strictly not a relation of the Chief Minister but only related to the son-in-law of the Chief Minister. Strictly speaking it is so. Amongst the Hindus in the early days marriage was confined to groups of families who were inter-related; but over the years as a result of urbanisation and modernisation of the Hindu society, marriages are not so confined. Inter-caste, inter-communal, inter-racial and international and inter-religious marriage are not uncommon even in Hindu society of today. In some cases such marriages may last and may be enduring. In some cases they may not last for long. When such is the condition a relative of an in-law cannot strictly be construed to be on the same footing as a son, son-in-law, daughter, daughter-in-law, wife, father, mother or brother or brother-in-law. Unfortunately, certain allegations as pointed out by him had been made that funds for Mrs. Makhija came from sources with which her brother the son-in-law of the Chief Minister was associated with. But they were vague allegations without any concrete evidence placed before the Court. The son-in-law was never impleaded. He drew our attention to a catena of Decisions to some of which we have already referred such as Pandey's case supra and Rural Litigation and Entitlement Kendra's case. But, however, reference to reliance placed on the Decision of the Supreme Court in the case of BARIUM CHEMICALS LTD. AND ANR. v. COMPANY LAW BOARD AND ORS., : [1967]1SCR898 requires to be noticed. In that Decision a Constitution Bench of the Supreme Court after referring to some earlier Decisions, pointed out that it was clear that in the absence of tangible materials the only answer which the respondents would aver against the allegations as to mala fides would be one of general denial. Therefore, the learned Counsel pointed out that the affidavit filed by the Chief Minister was not a mere bald denial but specifically stated that he had nothing to do in the passing of the impugned orders; that he had not in any way influenced either the Minister or the officials though he admitted that Mrs. Makhija was the sister of his son-in-law. Therefore, the learned Counsel contended that it would be futile to advance an argument as was done by Mr. B.R.L. Iyengar, learned Counsel for the appellants in W.A.No. 1928/1989 that there was no adequate and positive denial by the Chief Minister,
82. We have not referred to many of the Citations cited at the Bar on both sides as that would only, lengthen our Order without changing the same in substance. In the light of the reasons we have given, we have no hesitation to set aside the Order of the learned single Judge in so far as it relates to points Nos. 1, 2, 3 and 5 formulated by him without disturbing his findings on point No. 4 in regard to the allegations of mala fide. In the result, the Appeals filed by Revajeethu and the land owner must be allowed and the Writ Petitions dismissed and the Appeals filed by the Writ Petitioners stand dismissed as well as their Writ Petitions. In the circumstances parties will bear their own costs.
83. We make it clear that if there is any breach of the conditions of the orders of exemption or permission to sell it is open to the Government to examine such breach or breaches and take appropriate action in accordance with law. That should serve the public interest sufficiently if there has been breach of the conditions of the exemption or permission to sell.
84. Before parting with those cases, we may not fail to notice that the Special Deputy Commissioner, Urban Land, Bangalore City at the relevant time, as is patent from the records showed some interest in promoting the interests of Revajeethu and the land owner. But no specific allegations were made against him and he was not called upon to answer any charge of mala fides. But it is our duty to point out that bureaucrats as a rule should not give the impression that they are interested in any party who is seeking relief from the Government in accordance with law. The actions must be such that the administration will always rise above reproach. Indeed in the very same records in contrast to the performance of the Special Deputy Commissioner, Urban Land, Bangalore City, the Secretary in charge of Housing and Urban Land at the relevant time has acted in an exemplary manner pointing out the various short comings in the applications and the materials furnished by the land owner according to his understanding of the law. This we take, will be adhered to by all those who are concerned with the administration of the state and the special statutes that further the philosophy underlying our Constitution to achieve the goal of an egalitarian society where gulf between the rich and the poor, if not eliminated, at least is narrowed down considerably.
85. My learned Brother Rajendra Babu, J., having perused the draft of this order submitted to him has chosen to write a separate order in respect of certain matters regarding which he had some reservations; but has agreed with the conclusions reached and therefore the final order passed remains unaffected. The area of difference is set out in my learned Brother's order. In regard to that area of difference my using the expression 'we' in the course of my order must be treated as my individual view.
86. Rule issued in the Writ Petitions is discharged in terms above.
Rajendra Babu, J.
1. I have had the advantage of reading the draft order of my learned Brother Chandrakantaraj Urs, J. White I concur with the conclusions drawn by him, I have certain reservations on certain aspects dealt with in his order which is the reason for this separate order.
2. These appeals arise out of a common order passed by a learned single Judge of this Court allowing the Petitions in part. There are two sets of Appeals before us: One set of Appeals are filed by the owner of the land and the builders or land developers, while the other set of Appeals are filed by the original petitioners in the Writ Petitions to the extent the relief prayed for by them is refused or findings recorded are against them.
3. I shall only refer to such facts and contentions as are necessary for the purpose of writing this separate Order inasmuch as the learned single Judge in the course of his order and my learned Brother, in his order, in these Appeals have adverted to them in very great detail.
4. The petitioners who brought the Writ Petitions have filed the same in public interest stating that: the land belonging to the owner has been exempted under Section 20 of the Urban Land (Ceiling and Regulation) Act 1976 (hereinafter referred to as the Act) and thereafter some of the conditions imposed therein are relaxed under two orders of the Government dated 6th March 1987 and 18th April rich and the poor, if not eliminated, at least is narrowed down considerably.
85. My learned Brother Rajendra Babu, J., having perused the draft of this order submitted to him has chosen to write a separate order in respect of certain matters regarding which he had some reservations; but has agreed with the conclusions reached and therefore the final order passed remains unaffected. The area of difference is set out in my learned Brother's order. In regard to that area of difference my using the expression 'we' in the course of my order must be treated as my individual view.
86. Rule issued in the Writ Petitions is discharged in terms above.
Rajendra Babu, J.
1. I have had the advantage of reading the draft order of my learned Brother Chandrakantaraj Urs, J. While I concur with the conclusions drawn by him, I have certain reservations on certain aspects dealt with in his order which is the reason for this separate order.
2. These appeals arise out of a common order passed by a learned single Judge of this Court allowing the Petitions in part. There are two sets of Appeals before us: One set of Appeals are filed by the owner of the land and the builders or land developers, while the other set of Appeals are filed by the original petitioners in the Writ Petitions to the extent the relief prayed for by them is refused or findings recorded are against them.
3. I shall only refer to such facts and contentions as are necessary for the purpose of writing this separate Order inasmuch as the learned single Judge in the course of his order and my learned Brother, in his order, in these Appeals have adverted to them in very great detail.
4. The petitioners who brought the Writ Petitions have filed the same in public interest stating that: the land belonging to the owner has been exempted under Section 20 of the Urban Land (Ceiling and Regulation) Act 1976 (hereinafter referred to as the Act) and thereafter some of the conditions imposed therein are relaxed under two orders of the Government dated 6th March 1987 and 18th April given by the learned single Judge and by my learned Brother in his order in these appeals, and I respectfully concur with their views.
6. An analysis of the order under Appeal would reveal that the Decision rested on the following aspects of the matter:
(i)(a) That the impugned orders dated 6-3-1987 and 18-4-1987 are based on a policy decision which is contrary to the policy of the Act in allowing concentration of wealth in a few and in granting exemption under Section 20 of the Act and in allowing sale to 'Revajeethu' the builders.
(b) The group housing scheme should have been confined only to co-operative societies and the policy decision is contrary to guidelines issued by Government of India in Notification No. 9/48/78-UCU dated 2/7-5-1980,
(c) The hardship pleaded by the petitioners being one of indebtedness, there was not enough material to rely upon the same and exemption could only be given in respect of debts incurred prior and not subsequent to the commencement of the Act.
(ii) The entire extent of the land comprised in survey numbers 6/1 and 6/2 of Dasarahalli does not belong to the land owners but the same having been acquired pursuant to a notification issued in 1948 and only a portion having been released from such acquisition that extent alone could have been considered for exemption or permission for sale under Section 20 of the Act.
7. Now a careful perusal of the impugned orders made by the Government would disclose that exemption has been given on 17-7-1985 in respect of land measuring 16194 square metres to utilise the same for purposes of an industry and permission was granted to sell by order dated 6-3-1987. While the order dated 18-4-1987 has been made granting exemption under Section 20 of the Act with permission to sell the same. These two orders dated 6-3-1987 and 18-4-1987 impugned in these proceedings are rested on two grounds:
(i) the indebtedness of the land owners;
(ii) public interest would be subserved by the land owners being permitted to sell the same for using the land for group housing by constructing 600 dwelling units.
It is pertinent to notice a further development during the pendency of the proceedings in this Court namely that a portion of the land measuring 1 acre 02 guntas should be preserved and used for the purposes of road and boulevard by order issued in 1988. That order should also be read as a condition to the exemption granted to the land owners under Section 20 of the Act.
Under Section 20 of the Act exemption from operation of ceiling provisions could be granted under Clause (a) in public interest while under Clause (b) to relieve hardship of a person. If a composite order is made without stating under which of the provisions such order is made, but facts disclose the situation covers both aspects and order is a composite one, it cannot be criticised as having been made without application of mind to each of the grounds for there is due consideration on both the aspects.
8. The first question to be considered is whether the order granting exemption is contrary to the guidelines of the Central Government.
8A. A detailed reference to the events leading to the formulation of the scheme for group housing is available in the records and the finding of the Government on the material gathered by it is that there will be shortage of 75000 dwelling units per year and therefore by way of a crash programme such units have to be provided and in that direction one of the solutions thought of by the Government was to grant exemptions to individuals or firms or companies under the provisions of the Act to develop housing schemes. The question that arises for consideration is whether such group housing scheme proposed by the Government whether under the provisions of the Act in question or under any other provision of the Act in question or under any other provision of law of any other enactment is opposed to the guidelines issued by the Government of India in the guidelines issued by the Government of India in No. 9/49/78-UCU dated 2-6-1978 what was considered was that the Housing Co-operative Societies experience difficulties in securing lands and therefore the Government of India considered the matter and having regard to the provisions of Section 20 of the Act, the purpose for which the land is proposed to be used, expressed that there was no objection to exempt the land held by the land owners under Section 20 of the Act in excess of the limit so that the same may be transferred to the registered Housing Co-operative Societies or the Group Housing Co-operative Societies for the purpose of dwelling units subject to certain conditions. The Circular nowhere prohibits any private enterprise engaging in group housing other than a Housing Co-operative Society. All that is stated therein is that in view of the difficulties experienced by the Housing Societies the guidelines should be followed in the matter of relaxing conditions in relation to Section 20 of the Act. That does not bar the Government from exercising its power in relation to other persons as well. With this view that has been expressed by my learned brother Chandrakantaraj Urs, J. I am in full agreement. But as to his views on the scope of the guidelines that could be issued by the Government of India and whether the view of the Andhra Pradesh High Court in Katya Co-op. Building Society Ltd. v. State of A.P. should be 3 dissented from, I have my reservations. In my view it is unnecessary to consider those aspects in these cases. If the guidelines are understood in the manner analysed as above, the question of the Policy Decision formulated by the Government coming into conflict with such guidelines does not arise and consequently the question whether that guideline is a direction for the purpose of Section 36 or the scope of Section 36 also does not arise for consideration. And on these aspects I do not propose to express any opinion. Suffice to conclude that, with respect, I cannot subscribe to the view that impugned policy decision regarding housing scheme is contrary to guidelines of Government of India.
9. In Bhim Singhji v. Union of India, : AIR1981SC234 in examining the scope of the Act it is stated thus: The policy behind the legislation is to set a ceiling on urban vacant land, to take over excess and distribute it on a certain basis of priority and the guiding factor for distribution of such land being for public purpose, national development and social justice. It is not and never can be compulsory taking from some private owners to favour some other private owners. The concepts of 'industry', 'any person' and 'any purpose' do not free the relevant clauses from the in articulate major premise that only a public purpose to subserve common good will be permissible. Even a private industry may be for National good and may serve common good. Thus, the policy of this Legislation does not rule out the land found to be in excess to be used for public good through private enterprise. Hence, with respect, I cannot subscribe to the view of the learned single Judge that in allowing sale of the land to private enterprise of the builders is contrary to policy underlying the enactment as to concentration of wealth.
9A. The next question that needs to be considered is whether there was material before Government for exercising powers under Section 20(b) of the Act and whether there is proper exercise of power under that clause.
The Government in considering whether there was any hardship caused to the land owners took note of the material produced by them in the shape of audited balance-sheets, affidavits filed in that regard, copies of the plaints, attachment orders, certificates made by the auditors, confirmation given by the creditors and the details of the creditors to show the financial distress of the petitioners. On the basis of this material, the Government came to the conclusion that the land owners were in great financial distress. It cannot be said that the view of the Government in this regard was not based on sufficient material. Reliance is placed upon the decision in Thakur Bhai Darji Bhai v. State of Gujarat which explains the concept of hardship envisaged in Section 20 in the context of indebtedness of the land owners. After referring to various aspects of the matter and stating that the mere fact that the holder of excess vacant land is indebted to some extent by itself is not to be considered to constitute undue hardship, the claim cannot be granted under Section 20(1)(b) of the Act. It was also noticed that it would be difficult to visualise a holder of land who had no debt whatsoever and therefore stated that mere fact of some debt would not be sufficient to constitute hardship to accord a privileged treatment. At the same time their Lordships also pointed out that indebtedness by itself is not a ground for claiming exemption under the head 'undue hardship' is not to say that indebtedness in no case would constitute undue hardship. Therefore, the true principle set forth in that Decision is that a holder of a land in excess of the ceiling limit cannot claim exemption from Chapter III merely on the ground of indebtedness, but if such indebtedness is so heavy that if exemption is not granted he is likely to be ruined he is entitled to claim exemption. Therefore, that Decision cannot be understood as stating that the indebtedness by itself can in no circumstance be a ground for granting exemption. In the present case, the Government has taken note of the extent of indebtedness, the nature of the indebtedness, whether it was incurred prior or after the Act came into force. Hence, even on token of the tests in Thakurbhai's case, it cannot be said that the view of the Government is wrong. If as contended, the debts incurred should be confined only to a case arising prior to the date of commencement of the Act is the intendment of the Act, it may not hold water in cases where exemption has already been granted under Clause (a) of Section 20 and thereafter it turns out that such land had been given by way of security to raise loans for the purpose of industry and if the industry fails can it be said that the Government cannot permit sale of such land? In such an event to restrict that the debt should be confined to a date prior to the commencement of the Act may not stand to reason. In the present case, the land owners had been permitted to utilise their land by granting exemption under Section 20(a) of the Act. It is in the course of their business that they had incurred losses and the indebtedness also arose as a result of those transactions. In respect of those lands also relaxation was made on grounds of hardship for the purpose of sale. When .the extent of debts, even granting that the amount to be paid to the expelled partners is to be excluded, is enormous and to a large extent still remains to be paid, it cannot be said that the landowners were not in financial distress not resulting in hardship to them. The question whether the lands in dispute are not required for the purpose of the Government might assume significance if the Government had exercised its powers only in relation to granting exemption under Section 20(1)(a) of the Act for the purpose of group housing. In the present case, it is not merely for the purpose of group housing but also to relieve the hardship of the land owners that such exemption has been given.
10. The material placed before the Court clearly shows that there is total paucity of material as to what happened to the acquisition that commenced under the notification of the year 1948. Whether actual possession was taken and the land vested in the Government or not is not clear. Even at the stage of Appeal neither the Government nor the Bangalore Development Authority was in a position to place any material to claim title over the property in question. I do not think any investigation should have been embarked upon by the Government while granting exemption under Section 20 of the Act
11. The contention urged on behalf of some of the petitioners that the Section does not contemplate imposition of conditions regarding transfer of property is an over simplistic approach. In the present case, when the parties themselves approached the Government for exemption they were willing to sell the land and asked for permission in that regard. Whether there should be imposition or relaxation of any condition or otherwise is implicit in the exemption provision itself. Hence the power under the provision to grant exemption does not get exhausted and can also be exercised as and when needed to relax or modify conditions,
In the result, the Government had properly exercised the discretion on the question of hardship and this decision of the Government cannot be scrutinised as if the same could be done in an appeal, in exercise of powers of Judicial Review. Hence, with respect, I disagree with the finding of the learned single Judge on this aspect of the matter also.
12. The next aspect, I would like to advert is the one relating to the extent of the land. The finding that the land owners had no title to an extent of 1 acre 15 guntas and 58 square yards is contended to have been recorded wholly without jurisdiction. To support the proposition that questions of title cannot be tried in Writ Proceedings reliance is placed on the decision of the Supreme Court in STATE OF ORISSA v. RAMACHANDRA. It is submitted that at no stage of the proceedings had any of the parties raised the question of the alleged acquisition of 1 acre 15 guntas and 58 square yards nor had the matter been put in issue in the course of the proceedings. Neither the Bangalore Development Authority nor the Government contended that the land stood acquired. The Government in order to claim possession should have had recourse to the ordinary process of law as has been held by the Supreme Court in State of UP v. Dharmendra Prasad Singh, AIR 1964 SC 685. The extent of land held by the petitioners is 6 acres 12 guntas. The notification issued under Section 4(1) of the Land Acquisition Act dated 1st September 1948 discloses that the land was sought to be acquired for the purpose of formation of layout, park and boulevard. The total extent of the mentioned in that notification is 2 acres 8 guntas in survey number 6/1 and 4 acres 4 guntas in survey number 6/2. According to the notification, the whole extent of the land in the said survey numbers was sought to be acquired. Thus, at that point of time, revenue records must have shown that the land in possession of the said Munivenkatappa was 6 acres 12 guntas. The records of the Bangalore Development Authority would further disclose that at a subsequent point of time most of the land was sought to be withdrawn from acquisition. No notification issued under Section 48 was placed before the Court. The Register maintained by the Bangalore Development Authority which is in possession of the records maintained by its predecessor Bangalore City Improvement Trust Board would show that an extent of 1 acre 2 guntas and 58 square yards was held by them. But the Register was not maintained with reference to any award being passed pursuant to acquisition or possession taken thereupon. In this state of affairs could be said that only 5 acres 9 guntas and 63 square yards were in possession of the petitioners and not the other extent of 1 acre 2 guntas and 58 square yards? Can on such scanty material an inference of title be drawn either in favour of the landowners or against them? On such disputed questions of title I do not think it would be appropriate to settle the same on the basis of affidavits and some sketchy material placed without a full dress trial. Consideration of the matter as to the extent of the land held by the land owners becomes academic inasmuch as during the pendency of the proceedings before this Court the Government had directed the Bangalore Development Authority to ensure that the builders set apart 1 acre 2 guntas of land purchased by them for the purpose of boulevard and road originally envisaged by the erstwhile City Improvement Trust Board. On behalf of the builders a categorical statement had been made before the Court that they will abide by the order issued by the Government. In the circumstances, the entire question as to the extent of land in this regard becomes academic and that ground cannot be urged to upset the orders impugned in these proceedings.
13. If on these issues the findings of the learned single Judge are set aside the consequential order made declaring that the sale deeds are nullified also does not arise and cannot be sustained. While giving direction to remit the matter to the Government the learned single Judge has formulated a scheme for additional conditions to be imposed by the Government in the matter of grant of exemption. The learned single Judge has formulated a scheme in substitution of the conditions imposed by the Government. In matters of this nature when the Government itself is the proper authority to understand what would be the best in the circumstances, I do not think it would be appropriate for this Court to substitute its views to that of the Government, The formulation of such a policy clearly falls within the domain of the Government. Therefore, on that aspect of the matter also, with great respect to the learned single Judge, I cannot persuade myself to agree with him.
14. For the reasons stated above I agree with my learned brother Chandrakantaraj Urs, J. that Appeals filed by the land owners and I and-developers or builders should be allowed, while Appeals by Writ Petitioners should be dismissed, with the result that the Writ Petitions also stand dismissed.
Chandrakantaraj Urs, J.
Mr. A.K. Subbaiah, learned Counsel for the appellant in Writ Appeal No. 1928 of 1989 made an oral motion seeking permission to grant certificate of fitness to appeal to Supreme Court. We have founded our conclusions on the decisions of the Supreme Court and therefore refuse certificate of fitness prayed.
Even after we had refused certificate, Mr. A.K. Subbaiah insisted that interim order while the appeals were pending in this Court should be continued, in order to enable him to prefer an appeal to the Supreme Court and obtain the requisite interim orders from the Supreme Court. That prayer runs counter to the ruling of the Supreme Court in the case of STATE OF ORISSA v. MADAN GOPAL RUNGTA, : [1952]1SCR28 that a High Court under Article 226 of the Constitution cannot make any enabling order so that the parties may prosecute their remedies elsewhere when it cannot entertain the Petition or has dismissed the Petition. Therefore, we reject the prayer of Mr. A.K. Subbaiah in this behalf also.