ORDER
Deepak Verma, J.
1. This order shall also govern disposal of W.P. No. 494/96 (Shrinath Griha Nirman Sahakari Sanstha Maryadit v. State of M.P.); W.P. No. 612/96 (Shri Laxmi Co-operative Housing Society Ltd. Indore v. State of M.P.); W.P. No. 679/1996 (Akash Griha Nirman Sahakari Sanstha Maryadit Indore v. State of M.P. ); W.P. No. 680/1996 (Madhuri Griha Nirman Sahakari Sanstha Maryadit Indore v. State of M.P.); W.P. No. 682/1996 (Janta Griha Nirman Sahakari Sanstha Maryadit, Indore v. State of M.P.); W.P. No. 683/1996 (Brijeswari Apartments Co-operative Housing Society Ltd. Indore v. State of M.P.); W.P. No. 684/1996 (Ma Saraswati Griha Nirman Sahakari Sanstha Maryadit Indore v. State of M.P.); W.P. No. 685/1996 (Shri Deo Griha Nirman Sahakari Sanstha Maryadit Indore v. State of M.P.); W.P. No. 686/1996 (Sukliya Griha Nirman Sahakari Sanstha Maryadit, Indore v. State of M.P.); W.P. No. 687/1996 (Gajanand Griha Nirman Sahakari Sanstha Maryadit, Indore v. State of M.P.); W.P. No. 688/1996 (Brijeshwari Apartment Co-operative Housing Society Ltd., Indore v. State of M.P.); W.P. No. 709/1996 (Shantilal Jain v. State of M.P.); W.P. No. 710/1996 (Rakhi Griha Nirman Sahakari Sanstha Maryadit, Indore v. State of M.P.); W.P. No. 711/1996 (R.R. & Company Indore v. State of M.P.); W.P. No. 713/1996 (Jagrati Griha Nirman Sahakari Sanstha Maryadit, Indore v. State of M.P.); W.P. No. 714/1996 (Jagrati Griha Nirman Sahakari Sanstha Maryadit, Indore v. State of M.P.I: W.P. No. 728/1996 (Sheetal Nagar Griha Nirman Sahakari Sanstha Maryadit, Indore v. Stateof M.P.); W.P. No. 785/1996 (Rooprekha Griha Nirman Sahakari Sanstha Maryadit, Indore v. State of M.P.); W.P. No. 819/1996 (Dilipsingh and one Anr., v. State of M.P.); W.P. No. 944/1996 (Maheshkumar Maheshwari v. State of M.P. ); W.P. No. 951/1996 (Radheshyam Maheshwari and one Anr., v. State of M.P.); W. P. No. 1042/1996 (Navlakha Sramik Avas Griha Nirman Sahakari Sanstha Maryadit, Indore v. State of M.P.); W.P. No. 1043/1996 (Haryana Nagar Griha Nirman Sahakari Sanstha Maryadit, Indore v. State of M.P.);W.P.No. 1045/1996(HaryanaNagarGriha Nirman Sahakari Samili Maryadit, Indore v. State of M.P.); W.P. No. 1301/1997 Nulun Griha Nirman Sahakari Sansiha Maryadit. Indore v. StateofM.P.);W.P.No. 1601/l996 (Shri Samath Co-operative Housing Society Maryadit. Indore v. State of M.P.); W.P. No. 1654/1997 Arovil Housing Co-operative Society Ltd. Ujjain v. State of M.P.); W.P: No. 1655/1997 (Arovil Housing Co-operative Society Ltd. Ujjain v. Stale of M.P.); W.P. 272/1997 (Smt. Pramilabai Parsai v. State of M.P.); W.P. No. 508/1997 (Smt. Leelabai v. State of M.P.): W.P. No. 1809/1997 (Shikhar Griha Nirman Sahakari Sanstha Maryadit, Indore v. State of M.P.): as common questions of law and fact are involved in all these petitions.
2. The question that arises for consideration of this Court, as formulated after hearing learned counsel for parties, is mentioned herein below;
Whether petitioners, who are Colonisers/Builders/Developers, can be deprived of their land to the extent of 15% to be earmarked for Informal Sector, while carving out Colonies/plots by an executive order, passed by Respondents, without authority of law?
3. Facts as unveiled, after hearing arguments of the learned counsel for the petitioners, as depicted in W.P. No. 693/1996 (Gulmohar Griha Nirman Sahakari Sanstha Samiti v. State of M.P.) are as under;
(i) Petitioner is a Housing Society, duly registered under the provisions of M.P. Cooperative Societies Act, 1960. It is basically engaged in carving out plots, then, allotting the same to its members.
(ii) Petitioner purchased 8.69 acres of land in village Piplyahana, Indore, for achieving the said object. On account of aims and objects of the said society, it was exempted from operation of Section 20( I) of the Urban Land (Ceiling and Regulation) Act, 1976. Petitioner also applied for grant of Coloniser's licence, as required under Section 24 of M.P. Vinirdishta Bhrishta Acharan Nivaran Adhiniyham, 1982. While granting the licence, a condition was imposed by the Collector, Indore, that petitioner would handover possession of 15% of land to the Slum Clearance Board. Petitioner also applied for sanction of layout plan to respondent No. 4/Joint Director, Town and Country Planning, under Section 29 of M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 (for short, hereinafter shall be referred to as 'Adhiniyam of 1973') The map was sanctioned under Section 30 of the Adhiniyam, 1973, but, imposing certain conditions thereon. Vide condition No. 3 , it was mentioned, that as per Government's Circular dated 26-8- 1987, petitioner Society is required to reserve 15% of land for Informal Sector, subject to this condition, lay-out plan was sanctioned.
(iii) Petitioner raised objections with regard to reservation of this land. Since nothing favourable was heard, under compelling circumstances, petitioner agreed to part away with 15% of the land to respondent No. 5 M.P. Slum Clearance Board. However, contention of the petitioner is,' that even, though, it agreed for this but, actual physical possession was never handed over to the respondents.
(iv) Since, condition imposed by Joint Director, reserving 15% of the land continued in the sanctioned layout plan, petitioner preferred W.P. No. 489/1995, in the High Court, at Indore Bench. The same came to be decided on 31-3-1995, with a direction to the petitioner to file an Appeal under Section 31 of the Adhiniyam of 1973, before an appropriate authority.
(v)In obedience of the said order, petitioner preferred an Appeal before the respondent No. 2 Commissioner Indore, Division, Indore. The Appeal met the fate of dismissal and the order of Joint Director was upheld. Since, specified direction was given to the Appellate Authority to consider ambit and scope of Article 300A of the Constitution of India, while considering the Appeal on merits, it was incumbent on the part of the Appellate Authority to consider the same, in the light of the order passed by the High Court. But, the Appellate Authority did not consider the scope of Article 300A of the Constitution and still dismissed the Appeal.
(vi) Petitioner, was, therefore, constrained to approach this Court, again, by filing writ petition. Petitioner's writ petition was disposed of by a common order, passed in W.P. No. 1590/1995, decided on 8-12-1995. Since both the parties agreed that question with regard to Article 300A of the Constitution, had not been dealt with by the Appellate Authority, therefore, the Appeals be remanfled to Commissioner, Indore, the Appellate Authority, for rehearing and passing orders afresh on them. Accordingly, the petitions were disposed of and the Appeals were remanded to the Appellate Authority/Commissioner, Indore for reconsideration of the question, mentioned above.
(vii) The Appellate Authority, once again, dismissed, the Appeal, holding therein, that under Article 300A, no one can be deprived of his properties save by authority of law, but, still, if, the land is lequired for public purpose, then, it can be done. In that situation, the provision of this Article of the Constitution, would not be applicable. The Appeal has, once again, been dismissed on merits. The petitioner has now filed this petition, challenging the Order dated 26-8-1987, issued by respondent No. 1 State of M.P., reserving 15% of land by a Housing Society for Informal Sector, order dated 18-6-1992, passed by Joint Director, directing to earmark 15% of land for Informal Sector, while sanctioning the layout plan, and the Appellate Order, passed by Commissioner on 7-3-1996, dismissing the Appeal, upholding the aforesaid orders. Petitioner's prayer is that aforesaid orders deserved to be mortalised, as the same are unconstitutional and have been passed without authority of law.
4. Show cause notices against admission were issued to respondents. They have filed their Reply opposing the petitioners prayer.
5. Before this petition, along with other connected petitions, could be taken up for hearing, judgment on an identical issue was pronounced by the High Court at Gwalior Bench, in M.P. No. 295/1992, decided on 14-12-1995, (7-2-1996) by learned single Judge, in Alpai Nagar Griha Nirman Sahakari Sanstha v. State of M.P., wherein, the said order of Joint Director, directing to keep 15% of the land for Informal Sector was set aside, with direction to reconsider petitioner's application for renewal of already sanctioned lay out plan, dehors the said condition. The said judgment is reported in AIR 1996 Madh Pra 133.
6. Against this judgmnet, State has preferred Letter's Patent Appeal No. 209/1996, before High Court at Gwalior Bench, in which, Interim Order of slay has been passed in favour of State Government, which is still in force.
7. In view of the pendency of L.P.A., hearing of this petition and connected petitions, was, deferred for almost one year, in the fond hope that L.P.A. might be disposed of within this period. But, L.P.A. could not be disposed of during this period. Thus, it was directed that earlier order be modified and all these petitions be heard on merits. That is how, this petition, along with connected petitions, has been heard on merits.
8. Respondents have submitted, that provisions of Adhiniyam of 1973, have been made applicable to whole of Madhya Pradesh, so that there could be regular, consistent and efficacious improvement of the land throughout the State, Under Section 24 of the Adhiniyam of 1973, directions have been given with regard to purpose of the land and how they are to be utilised to the maximum. Section 25 deals with development of the Scheme and Section 26 prohibits development of Scheme, unless, necessary permission is accorded. Any one desirous of developing a colony, is, required to make an application under Section 29 of the Adhiniyam of 1973, which can be granted after scrutiny by the Joint Director under Section 30.
9. They have submitted, that this condition was imposed long back, yet, the petitioner did not approach this Court earlier, challenging the same. Thus, petitioner is estopped from challenging the same.
10. Reference has also been made lo Section 73 of the Adhiniyam of 1973, whereby the respondent/Joint Director has been empowered to impose any condition on the Society, while sanctioning the layout plan.
11. As regards Article 300A of the Constitution, the submission is, that as per Government's Order D/- 26-8-1987, it is clearly mentioned, that for 15% of the land, the actual cost of the same be worked-out and it is paid to the owner as compensation.
12. It is further submitted, that 15% of the land was already surrendered by the petitioner, which has been handed over to M. P. Gandi Basti Nirmulan Mandal.
13. In view of the aforesaid contentions, respondents have prayed that petition being devoid of merit and substance, deserves dismissal.
14. In the light of rival contentions, as advanced, by the learned counsel for parties. I have heard Shri A. M. Mathur, learned Sr. Counsel; Shri K. G. Maheshwari; Shri K. L. Hardiya; Shri S. S. Samvatsar; Shri V. K. Jain; Smt. Meena Chafekar on behalf of Petitioners. Whereas, argument of learned Counsel for Petitioners are tried to be repelled by Shri Shekhar Bhargava, learned Addl. Advocate-General and Shri B. A. Chitle, Govt. Advocate.
15. Even, though, the question that has been raised in this and the connected petitions, has been answered by learned single Judge, in a case of Alpai Nagar Griha Nirman (AIR 1996 Madh Pra 133) (supra), but, I would still like to examine the contentions, as advanced by learned counsel for parties, in finer details.
16. It may he mentioned here, that after hearing of the Counsel for Petitioner was concluded, the Counsel for Respondents was called on to advance arguments. He informed the Court, almost, at the fag-end of the hearing, that an application has been filed on 16-7-1998, for taking certain documents on record. This prayer was vehemently opposed by the learned counsel for Petitioners. Even, then, I have examined the said documents and gone through the same critically.
17. These are Policy Decisions, taken by the State Government from time to time and circulars issued pursuant thereto. But the larger question, as projected in the aforesaid petition has not been dealt with, nor has been kept in mind, while taking such policy decisions. Thus, in the considered opinion of this Court, I find, that these documents, which, arc sought to be filed, at such a belated stage, do not cover the question involved in these petitions. They do not, even, throw any light on the controversies, involved in these petitions. They render no possible help to advance the contentions of the Respondents. It is, therefore, not necessary to deal with these documents further.
18. Even, though, the said application is taken on record, but, after consideration of the documents sought to be filed, through this application, the same are found to be immaterial. Thus, no further discussion on these documents is required.
19. Provisions of the Adhiniyam of 1973, do not lay down any condition, whereby, the State Government could derive power to pass an order, directing the Housing Society to keep 15% of the land for Informal Sector. Much emphasis has been laid on Sub-section (b) of Section 30(1) of Adhiniyam of 1973 to stress that it gives powers to Joint Director, to grant the permission, subject to such condition, as may, be deemed necessary under the circumstances.
20. I am afraid, under this sub-section. Respondents would not be justified or competent to takeover the lands of the Petitioners to the extent of 15% of their total holding. If this had been the intention of Legislature, then, the Legislature in its wisdom, would have made specific provision giving power to the Respondent/Joint Director to impose such a condition. But, 1 find that no such specific condition has been given to him under Adhiniyam of 1973.
21. This Adhiniyam, basically provides for provision of planning and development and use of land to make better provision for preparation to develop plans and zoning plans, with a view to ensuring Town Plan Scheme to be implemented in proper manner. But this does not speak anywhere of carving out any area in the land owned by Society, for Informal Sector.
22. Thus, in absence of express or implied power, derived through provisions of Adhiniyam, 1973, (sic) such a condition.
23. The Madhya Pradesh Bhumi Vikas Rules, 1984 (hereinafter for short shall be referred to as 'Vikas Rules of 1984') have been framed in exercise of the powers conferred-by Section 85 read with Section 3 of (sic) Section 24 and Section 31 of the Adhiniyam of 1973. Rule 47 deals with providing of Community Open Spaces and Amenities in Residential and Commercial Zones for purposes of recreational purpose, which, shall, as far as, may be possible, be provided in one place. The minimum area has also been given in the said Rule.
24. Rule 49 deals with other amenities to be provided in addition to commonly open spaces which requires providing for community facilities on the scale laid down in Table IV appended to the said Rules.
25. These Vikas Rules also do not require the Petitioner/Society to carve-out or earmark 15% of the total land for Informal Sector. It clearly establishes that there was no such intention of the Legislature, while enacting Adhiniyam of 1973 or framing Rules thereunder in 1984, to keep 15% of the land for such Informal Sector.
26. Section 73 of Adhiniyam of 1973 deals with power of the State Government to give directions. It contemplates that the officers in discharge of their duties appointed under Section 3 and the authorities constituted under this Act, shall be bound by such directions on matters of policy as may be given to them by the State Government.
27. Section 3(2) of Adhiniyam of 1973 mandates that the Director shall exercise such powers and perform such duties, as are conferred or imposed upon him by or under this Act.
28. These two provisions further make it crystal clear that no such power has been conferred on the Officers of the State Government to direct the Colonisers to keep 15% of the land for Informal Sector. Thus, such an order if passed by the Officer, even, in pursuance to the policy decision of the State Government, would amount to transgressing his power.
29. Thus, only those conditions, which arc envisaged under Adhiniyam or under Rules, could have been imposed, while sanctioning lay-out plan and nothing beyond that.
30. It is further worthwhile mentioning that before such an order could be passed, directing the Petitioner to earmark 15% of the land, it was necessary for compliance of the following two conditions :
(i) Acquisition of land to the extent of 15% has to be made;
(ii) The principle for fixing of compensation for the 15% of the land has to be worked out;
31. If these two conditions are not fulfilled, any order which deprives the Petitioner of its valuable right to hold the land, cannot be upheld and sustained in law.
32. Article 300A of the Constitution has been incorporated by 44th Amendment, which came into effect from 20-6-1979. By the same 44th Amendment, Article 31 of the Constitution, which dealt with compulsory acquisition of property has been omitted. Thus, after omission of Article 31 and insertion of Article 300A, it is crystallised that no person shall be deprived of his properly, save by authority of law. Thus, the right to hold the property has ceased to be a fundamental right under the Constitution. But, it has been left to the wisdom of the Legislature to deprive a person of any property by authority of law. If the same is done by authority of law, and even, if, no compensation is paid, even, then, it cannot be a subject-matter of challenge before a Court of law.
33. Of course, if one's properly is taken away by the Executive, without authority of law, he would still be entitled to a legal relief, on the ground that such executive action is in contravention of Article 300A of the Constitution.
34. The type of restriction, as imposed by the Respondents, clearly amounts to deprivation of the petitioner to use that particular land in any manner, it thinks best. Thus, any such restriction which amounts to deprivation, without authority of law, would, attract provisions of Article 300A of the Constitution.
35. It is now well settled that the word 'Property' has much wider aspect than ordinarily used in common parlance. Property, in this Article , means only that which can by itself be acquired, disposed of, or, taken possession of; subject to this limitation, it is designed to include private property in all its forms and must be understood both in a corporeal sense as having reference to those specific things that are susceptible of private appropriation and enjoyment as well as in its judicial or legal sense of a bundle of rights, which the owner can exercise as owner in respect of his property with respect to user and enjoyment of these things to the exclusion of all others. Thus such deprivation of the right of Petitioner to use the land, would amount to infringement of his right to use it in the manner he thinks it best.
36. Part XVI in the Constitution, which, commences from Article 330, deals with Special Provisions relating to certain classes i.e. Scheduled Castes and Scheduled Tribes. But, this Part also does not clarify anywhere that for the purposes of sanction of any lay-out plan. State Government would be justified in directing the Developer to keep 15% of the land few Informal Sector.
37. Article 15(4) of the Constitution provides that nothing in this Article or in Clause 2 of Article 29 shall prevent the State, from making any special provision for the advancement of socially and educationally backward classes of citizen or for Scheduled Castes and Scheduled Tribes. Thus, this fact cannot be denied that the State has ample powers, even, under the Constitution to frame any legislation for upliftment and improvement of such Informal Sectors, but, admittedly, no such legislation has been enacted by the State, specifically in this regard.
38. Article 162of the Constitution, deals with the powers of legislature of the State, to make laws in respect of specially those subjects, which fall in List II, State List of Schedule VII, of the Constitution. This Article of the Constitution, in short, says, that the executive power of State shall be co-extensive with its legislative power. Though, the executive powers of the State are con-terminous with the legislative power of the State legislature, however, this general rule, is, subject to the other provisions of the Constitution. Article 246 deals with the distribution of the legislative powers as between Union and State legislatures, with reference to different lists in the Vllth Schedule.
39. From the narration of the aforesaid facts and after examination of the Adhiniyam and the Rules framed thereunder, it would show, that State has not enacted any specific law on the subject. Thus, in absence of any law on the subject, deprivation of the property of a citizen, without authority of law, would be illegal and unconstitutional.
40. The State Government has also enacted Madhya Pradesh Gandi Basti Chetra (Sudhar Tatha Nirmulan) Adhiniyam, 1976; an act, to provide for the improvement and clearance of a slum areas in the State and for protection of tenants in such areas from eviction. Section 13 of the Adhiniyam of 1976, deals with powers of the State Government to acquire land. It clearly stipulates that the State Government may acquire the land by publishing in the Gazette a notice to the effect that State Government has decided to acquire the land in pursuance of this section.
41. Section 15of the afore said Adhiniyam of 1976, contemplates right to receive amount in lieu of deprivation of right in land. This shows that every person having any interest in any land, acquired under this Act, shall beentitled to receive from State Government an amount in lieu of' deprivation of the right in land as-provided in this Act.
42. Thus, under the provisions of this Adhiniyam, if the State Government so wanted to settle or rehabilate the Slum dwellers, then, it was free to have taken steps in this regard. But, under the garb of an executive order, a citizen cannot be deprived of his land, that too without working out any compensation for it. Thus, this action of the Respondent would be wholly unconstitutional and invalid.
43. The State Government, is, thus, not justified in directing the Petitioner and all such other Societies to carve out or earmark 15% of their total land for such informal Sector.
44. Shri Shekhar Bhargava, learned Addl. Advocate-General, tried to advance many more points, then, what have actually been taken by the Respondents, in their Return. Even, though, the same was objected to by the Petitioners, but, this Court allowed him to advance all points. The other points which were tried to be professed at the time of hearing, do not find any factual foundation in the Return, yet, all the points have been considered.
45. As has been mentioned above, apart from taking the grounds available under the provisions of Adhiniyam of 1973, Respondents have taken no other reasonable, valid and cogent grounds justifying deprivation of the Petitioners of their land.
46. During the course of hearing, several authorities have been cited by both sides, to advance their respective contentions. It has, therefore, become necessary to summarise the gist of each one of it.
47. The first case, relied on by the learned counsel for Petitioner is reported in AIR 1961 SC 1570, Bishandas v. State of Punjab. In the said case it has been held that State or its Executive, cannot interfere with the rights of other, unless, they can point to some specific Rule of law, which authorises their acts. The executive action taken by the State and its Officers should not be destructive of the basic principle of the Rule of law.
48. Taking this, as a threadbare, learned counsel, then, relied on a judgment of Commissioner of Income-tax Gujarat v. Ahmedabad Rana Caste Association, reported in AIR 1982 SC 32, placing reliance on para 41 of the said judgment to advance arguments, as to what act of the Respondents would amount to deprivation of property, without authority of law. Para 41 is reproduced herein below :
'There still remains the question whether the seizure of wheat amounts to deprivation of property without the authority of law. Article 300A provides that no person shall be deprived of his property save by authority of law. The Stale Government cannot while taking recourse to the executive power of the State under Article 162, deprive a person of his property. Such power can be exercised only by authority of law and not by a mere executive fiat or order. Article 162, as is clear from the opening words, is subject to other provisions of the Constitution. It is, therefore, necessarily subject to Article 300A. The word 'Law' in the context of Article 300A must mean an Act of Parliament or of a State Legislature, a rule, or a statutory order having the force of law, that is positive or State-made law. The decisions of Wazir Chand v. State of Himachal Pradesh, (1955) 1 SCR 408: AIR 1954 SC 415 and Bishan Das v. State of Punjab, (1962) 2 SCR 69: AIR 1961 SC 1570 are an authority for the proposition that an illegal seizure amounts to deprivation of property without the authority of law. In Wazir Chand's case (supra) the police in India seized goods in possession of the petitioner in India at the instance of the police of the State of Jammu and Kashmir. The seizure was admittedly not under the authority of law, inasmuch as it was not under the orders of any Magistrate; nor was it under Sections. 51, 96, 98 and 165 of the Code of Criminal Procedure, 1898, since no report of any offence committed by the Petitioner was made to the police in India, and the Indian Police were not authorised to make any investigation. In those circumstances, the Court held that the seizure was not with the authority of law and amounted to an infringement of the fundamental right under Article 31(1). The view was reaffirmed in Bishan Das's case (supra).'
49. The case reported in Yogcndra Pal v. Municipality Bhatinda, AIR 1994 SC 2550, which dealt with the words 'Transferred' and 'Acquired' has been dealt with elaborately by learned single Judge of this Court in Alpai Nagar Griha Nirman, AIR 1996 Madh Pra 133 (supra). Then, he referred to Jilubhai Nanabhai Khacharv. State of Gujarat, AIR 1995 SC 142 to advance contention with regard to Article 300A of the Constitution, which, dealt with the word 'Law', as occurring in Article 300A of the Constitution. It held that the word 'Law' used in Article 300A must be an Act of Parliament or of State Legislature, a rule or statutory order having force of law. The deprivation of the property shall be only by authority of law, be it an act of Parliament or State legislature, but, not by executive fiat or an order. It further held, deprivation of property is by acquisition or requisition, or, taken possession of, for a public purpose. There is no deprivation without any sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300A. In other words, if, there is no law, there is no deprivation.
50. Then, he cited yet another judgment of Supreme Court, reported in AIR 1997 SC 128. Krishnan Kakkanath v. Government of Kerala to submit that even for imposing reasonable restriction on the fundamental right guaranteed under Article 19(1), the restriction is to be imposed under a valid law, be it a statutory law or statutory regulation and not by any executive instruction of the Government. He has placed reliance on para 28 of the said judgment. According to Shri Mathur, learned counsel for Petitioner, this squarely answers the submission of the Respondents, that such decision and orders having been passed in pursuance to the policy decisions taken by the State Government, cannot be challenged, has been negatived by the Supreme Court.
According to him, in absence of any statutory law, even, policy decision would not be allowed to be implemented if the same deprives a citizen of his property without any authority of law.
51. In M. P. Electricity Board v. Virendra Kumar Sharma, (1998) 1 Jab LJ 49, the Division Bench of this Court has held that circular not issued under any statutory provision, has no force of law. In the instant case also, the Respondents have not been able to show to this Court any provision under which the said circulars have been issued.
52. Lastly, the counsel for petitioner has placed reliance on a judgment of learned single Judge of this Court passed in M. P. No. 474/1989 (Gautam and Company v. State of M. P.), decided on 17-3-1997, whereby the challenge was to imposition of External Development Charges, imposed by the respondents, while granting permission for development of a colony or construction of building. Such a condition has been held to be invalid and unconstitutional and has, accordingly, been quashed by this Court.
53. Thus, on overall evaluation of the aforesaid judgments, my view is fortified that in absence of any statutory provision, no such condition, which, amounts to deprivation of the property, can be imposed by the State Government, either through Policy Decision, or, by issuance of Circulars.
54. To meet the ratio of the aforesaid judgments, learned counsel for respondents has strongly relied on the judgment, reported in AIR 1952 Bom 461 (Jagwantkaur v. State of Bombay), especially relying on the following passage of this judgment (at p. 462 of AIR):
'Now, as has been recently pointed out by the Supreme Court, Article 15 or indeed any article conferring fundamental rights cannot be whittled down or qualified by anything that is contained in Part IV of the Constitution. Whereas fundamental rights are justiciable, the directive principles enumerated in Part IV are not justiciable and the provisions of Part IV must be read as subsidiary to the fundamental rights contained in Part III. Therefore, the fact that under Article 46 the State is enjoined to promote with special care the educational and economic interests of the scheduled caste does not mean that the State is pemitted to discriminate in favour of Harijans so as to contravene the fundamental right conferred upon citizens by Article 15(1). It is because this difficulty was realised that the Constitution had to be amended, and the amendment to Article 15 provides that nothing in Article 15 shall prevent the State from making any special provision for the advancement of any socially backward class of citizens or for the scheduled castes and the scheduled tribes. We dare say that after the amendment it would be possible for the State to put up a Harijan colony in order to advance the interest of back wardclass. But till that amendment was enacted, as Article 15 stood, it was not competent to the State to discriminate in favour of any caste or community. Therefore, in our opinion, the order as it stands contravenes the provisions of Article 15.'
55. He has also made reference to AIR 1990 SC 630 ( Shantistar Builders v. Narayan Khimalal Totame) which dealt with the expression 'weaker section of the society' in which Supreme Court had directed the Central Government to prescribe appropriate guidelines laying down true scope of the aforesaid expression. In para 13, Supreme Court has held elegantly as under :
'In recent years on account of erosion of the value of the rupee, rampant prevalence of black money and dearth of urban land, the value of such land has gone up sky-high. It has become impossible for any member of the weaker sections to have residential accommodation anywhere, and much less in urban areas. Since a reasonable residence is an indispensable necessity for fulfilling the Constitutional goal in the matter of development of man and should be taken as included in 'life' in Article 21, greater social control is called for and exemptions granted under Sections. 20 and 21 should have to be appropriately monitored to have the fullest benefit of the beneficial legislation. We, therefore, commend to the Central Government to prescribe appropriate guidelines laying down the true scope of the term 'Weaker sections of the society' so that everyone charged with administering the statute would find it convenient to implement the same.'
56. He, then, made a reference to AIR 1990 SC 1277 ( Shri Sitaram Sugar Co. Ltd. v. Union of India), which basically dealt with the powers of judicial review with regard to economic policy of the State. In the said judgment, it has been held that judicial review is not concerned with matters of economic policy. The Court docs not substitute its judgment for that of the legislature, or, its agents as to matters within the province of either. The Court docs not supplant the feel of the expert by its own views. When the legislature acts within the sphere of its authority and delegates power to an agent, it may empower the agent to make findings of fact which arc conclusively provided that such findings satisfy the test of reasonableness. In all such cases, judicial inquiry is confined to the question whether the findings of fact was reasonably based on evidence and whether such findings are consistent with the laws of the land. In the aforesaid case. Supreme Court was dealing with the price fixation of sugar. It was a case, which fell squarely under the provisions of Essential Commodities Act. 1955.
57. Then, he placed reliance on (1995) 2 SCC 117 : (1995 AIR SCW 1469) (State of Rajasthan v. Sevanivrat Karmachari Hitkari Samiti) and (1997)7 SCC 592: (AIR 1998 SC 145)(M.P. Oil Extraction v. State of M. P.) to advance the contention on the question of judicial review of policy decision of the State by the Court. The ratio of the aforesaid judgments, makes it clear that ordinarily there should not be any interference in policy decision of the Stale Government and no judicial review of the same is called for. However, the same can still be attacked on the ground of unreasonableness, arbitrariness and devoid of any legal source to pass such policy decision.
58. Lastly, Shri B. A. Chitle. learned Govt. Advocate, who has ably assisted Shri Shekhar Bhargava, in these matters, in his usual suave and polite manner, yet firm with superb advocacy, tried to persuade, with the permission of the Court, with regard to doctrine of delegated legislation. He placed reliance on a judgment of the Apex Court, dealing on the question of delegated legislation, to strenuously submit that the respondents' case would be covered by (1980) 1 SCC 340 : (AIR 1980 SC 350) (The Registrar of Co-operative Societies, Trivandrum v. K. Kumabmu). His contention is, that in view of this judgment, action taken by the Respondents in the afore said matter is fully justified. However, there is no dispute about the ratio of this case, but, the same is not applicable to this case.
59. I am afraid, all these judgments, quoted by learned counsel for respondents, do not clinch the issue, involved in the petition. As has been held above, in absence of any specific legislative competence or enactment, passed by State Government, no such right could have been exercised by the State Government in this regard.
60. Consequently, and in the result, this petition and the connected petitions deserve to be allowed and, are, hereby allowed.
61. Thus, the impugned orders Annexures P-5, P-6 and P 14 of this petition, are, hereby quashed. Similar orders in all other connected petitions are also quashed.
62. For the foregoing reasons, this petition and all the aforesaid connected petitions are, hereby, allowed with costs. Counsel fee Rupees 500/- in each, if, certified, Security costs, if, deposited, be refunded back to the petitioners, after its due verification.