V.K. Jhanji, J.
1. In this writ petition filed under Article 226 of the Constitution of India, prayer made is to quash order dated 25.4.1995, Annexure P-4, whereby decision was taken by the Government to lease the land for a period of 99 years to the 6th respondent. Challenge is also to Annexure P-8, i.e. lease deed dated 3.11.1995, whereby land has been leased out to 6th respondent pursuant to decision dated 25.4.1995.
2. 6th respondent, namely, Pushpa Devi was given dealership under the scheduled caste category for the sale of petrol and other petroleum products by the Hindustan Petroleum Corporation. Pushpa Devi is none else but the wife of Sh. Phool Chand Mullana who at the relevant time was Cabinet Minister holding the portfolio of Minister of Education in the Government of Haryana. On allotment of retail outlet, 6th respondent made an application on 8.3.1995 to the Minister, Local Government, Haryana for transfer of land situated on Ambala-Jagadhri road on reserve price. In the application she mentioned that the land belongs to the Municipal Council, Ambala Sadar. Before any decision could be taken on her application, she submitted application dated 16.3.1995 to the Deputy Commissioner, Ambala, requesting for allotment of site measuring 2000 sq. yards out of the municipal land. Alongwith the application, she enclosed letter of allotment. On the basis of the application submitted by the 6th respondent, the Government agreed to give on lease the land for a period of 99 years at the rate of Rs. 550/- per sq. yard. A letter in this regard was issued by the Commissioner and secretary to Government, Local Government, Haryana, to the Director, Local Bodies, Haryana, Chandigarh. A copy of the letter was also sent to the Deputy Commissioner, Ambala and to the Executive Officer, Municipal Council, Ambala Sadar. Letter dated 25.4.1995 was put up before the President, Municipal Council, Ambala Sadar and it was decided that no action be taken till the matter is placed before the Sub-committee of Municipal Council. The matter was referred to the Sub-Committee, Finance, which rejected the decision taken by the Government to give on lease the land to 6th respondent. The matter regarding grant of lease was also put up in the meeting of the Municipal Council held on 31.5.1995, which according to the petitioners was attended by 30 Municipal Counselors wherein it was unanimously decided that the lease be not granted to 6th respondent. The decision was again reiterated by the Municipal Council in its meeting held on 24.6.1995. In the said meeting, it was also decided that in view of resolution dated 31.5.1995, the receipt issued in respect of the deposit of lease money be returned to 6th respondent as the submission of draft was illegal. It is the case of the petitioners that though the land in question belongs to the Municipal Council, Ambala Sadar, but the State Government by obtaining opinion of the Executive Officer, Municipal council, held that the land belonged to the Haryana Government and accordingly, granted lease to the 6th respondent. The allegation of the petitioners is that the lease has been granted because the 6th respondent is wife of Cabinet Minister in the Government of Haryana. Petitioners thus have challenged the decision dated 25.4.1995 whereby the Government decided to give on lease the land to the 6th respondent, and also the registered lease-deed dated 3.11.1995 for 99 years executed by the Executive Officer, Municipal Council, Ambala Sadar. It has been contended that the Executive Officer had not been authorized by the Municipal Council, Ambala Sadar, to enter into any contract or to lease out the land to 6th respondent. The lease granted to 6th respondent has also been challenged on the ground that the disputed land is municipal land and so, it could be leased out only by the Municipal Council in the manner prescribed by the Haryana Municipal Act, Rules, Bye-laws and the instructions issued by the State Government from time to time. It has been alleged that the Deputy Commissioner and also the Executive Officer, Municipal Council, acted in totally unauthorized and partisan manner while giving on lease the land to 6th respondent. It has been contended that the Deputy Commissioner received the application of 6th respondent and got a report from the Executive Officer to the effect that it was a government land, thereafter the whole case was processed at a break-neck speed. The possession of the land is alleged to have been given on 4.9.1995 whereas till that time neither the lease-deed had been executed nor the lease-money had been deposited. Hence, the present writ petition calling in question the action of Government in giving on lease the land to 6th respondent.
3. On notice of the writ petition, three sets of written statement have been filed; one by respondents 1, 2 and 3; second by respondent No. 6 and third by respondent No. 7, In the written statements, respondents have submitted that the land in dispute belonged to the State Government. In this regard, reliance has been placed on excision agreement dated 5.2.1977 entered into between the Government of India, Ministry of Defence and the Haryana Government, Respondents have denied that the land in dispute belonged to the Municipal Council. In regard to the allegation that the Deputy Commissioner and the Executive Officer have acted in mala-fide manner, it has been submitted by the respondents that there was no illegality committed by the Executive Officer in executing the lease-deed or accepting the lease money as the same has been done in pursuance of the order of the Government whereby the State Government had decided to give on lease the land belonging to it, to the 6th respondent. 6th respondent in her written statement thus submitted that the site measuring 718 sq. yards is ownership of the State Government and the same has been correctly given on lease by the State Government to her for setting up of retail outlet. She has denied that her husband had any role to play in the matter of allotment. 7th respondent, Phool Chand Mullana (husband of 6th respondent) who was then the Minister of Education in the Government of Haryana, has denied the allegations levelled against him in the writ petition. He has stated that the allegations have been levelled with a view to wreck political vendetta against him. According to him, petitioners have affiliation to Bhartia Janta Party, whereas he is a senior leader belonging to Indian National Congress.
4. It has been contended by Mr. R.S. Surjewala, Advocate, appearing for 6th respondent that the question raised in the writ petition is in regard to ownership of land, i.e. whether it belonged to Municipal Council, Sadar, or to the State Government. He contended that the disputed question of title has been raised and therefore, proper course for the petitioners is to institute civil suit, and the proceedings under Article 226 of the Constitution of India are not the proper proceedings for seeking the relief. In answer to these submissions, it has been contended by Mr. O.P. Goyal, Sr. Advocate, counsel for petitioners, that the land in dispute vested in the Municipal Council as it had been transferred under the excision agreement dated 5.2.1977 to the Notified Area Committee which after on was converted into Municipal committee Sadar. It has been contended that there is not even a single instance except the present one giving land out of excised area under the orders of Government. It has further been contended that even if the land belonged to the State Government, no procedure for allotment of land has been followed and therefore, lease in favour of 6th respondent is null and void.
5. Accepting what the respondents say, i.e. land in dispute belonged to the State Government, I am of the view that lease in favour of 6th respondent cannot be sustained. Hindustan Petroleum Corporation through advertisement dated 21.2.1994 in the Dainik Tribune invited applications for grant of dealership of retail outlet. One of the eligibility criteria was that the candidate should be belonging to scheduled case community. 6th respondent along with others applied for allotment. Vide letter of intent dated 10.3.1995, retail outlet was awarded to 6th respondent. Before 6th respondent could receive letter of intent, she applied to the Minister, Local Government, Haryana, Chandigarh, for transferring land measuring 1000 Sq. Yards situated on Ambala Jagadhari road. In her application, she did not disclose the purpose for which land was required. So much so, she even did not disclose that she is wife of Sh. Phool Chand Mullana, Cabinet Minister. She in fact described herself as daughter of one Sita Ram. Her application (Annexure P-2) read as under :-
'To
The Hon'ble Minister,
Local Government Haryana,
Chandigarh.
Sir,
Sub : Request for transfer of land measuring 1000 sq. yards situated near LIC building, Jagadhari Road, Ambala Cantt.
Sir,
A piece of land measuring 1000 sq. yards is lying vacant near LIC Building, Jagadhari Road, Ambala Cantt. I am interested to get this piece of land on the price to be fixed by the Deputy Commissioner. I, therefore, request that this piece of land may please be transferred to me on reserved price. The land belongs to Ambala Sadar, Municipal Committee.
Thanking you.
Yours faithfully,
Sd/-Mbr>(Pushpa Devi)
d/o Sh. Sita Ram,Dated 8.3.1995 936-A, Sector 7, Urban Estate,
Ambala City.
The record produced has revealed that on her application, the Minister concerned directed that a report be called from the Deputy Commissioner and a proposal be also obtained from the Municipal Council. The Deputy Commissioner recommended that the land in dispute be given on lease to 6th respondent. It appears that the requirement of obtaining proposal from the Municipal Council was given up as it was pointed out that the land belonged to the State Government. On the basis of recommendation made by the Deputy Commissioner and report of the Executive Officer, Municipal Council, land measuring 718 Sq. yards was decided to be given on lease at the rate of Rs. 550/- per sq. yard for a period of 99 years. I also find from the record that the very allotment of retail outlet was challenged in Civil Writ Petition No. 9624 of 1995 by one Iqbal Raj, but at the stage of arguments for the reasons best known to the writ petitioner therein, the writ petition was got dismissed as withdrawn. Record produced does not show that the lease was given under any statutory provisions or rules if any framed for allotment of land. Counsel for the State was also unable to point out provisions of any Act or the rules under which land was given on lease to 6th respondent. In fact while giving land on lease to 6th respondent, the rules of Business of the State Government were given a complete go-bye. The Rules provide that all cases referred to in the Schedule shall be brought before the Council of Ministers in accordance with the provisions of rule contained in Part II. Rule II, Part II provides that all cases referred to in the Schedule shall be submitted to the Chief Minister after consideration by the Minister-in-charge with a view to obtaining his order for circulation of the case under Rule 12 or for bringing it up for consideration at a meeting of the council. Rule 28 gives the classes of cases which are required to be submitted to the Chief Minister before the issue of orders and one of the cases in regard to proposal involving alienation, either temporary or permanent, or of sale, grant or lease of Government property between Rs. 25,000/- to Rs. 75,000/- in value except where such alienation, sale, grant or lease of Government property is in accordance with the rules or with a general scheme already approved by the Council. Proposal (xiii) in the Schedule is also in the same terms. Lease amount at the rate of Rs. 550/-per Sq. yard comes to Rs. 3,94,900/- and therefore, proposal was required to be put up before Council of Minister or Chief Minister for orders. Record does not show that the proposal was ever put up before the Council of Ministers or even Chief Minister. In fact lease has not been granted in accordance with the rules nor it has been pointed out that there is a general scheme approved by the Council for allotment of land byway of lease. It is also worth-noticing that the lease-deed in question has been executed by the Executive Officer, Municipal Council, Ambala Sadar, Ambala, without there being any authority given to him by the State Government to execute lease-deed on its behalf shows that the same has not been executed on its behalf or in the name of the Governor. The execution of lease-deed is in complete violation of Article 299(1) of the Constitution of India. Learned counsel appearing for 6th respondent strenuously contended that lease made in favour of his client should not be cancelled on the asking of the petitioner as land does not belong to the Municipal Council. According to the counsel, petitioners are Municipal Counsilors and so, they can make a grievance only in regard to land belonging to Municipal Council. I am unable to accept this contention. Vide letter dated 5.2.1977 land measuring 1065 acres was transferred by the Government of India, Ministry of Defence, New Delhi, to the State of Haryana as also to the Notified Area Committee free of cost. Vide Notification of the same date, the Government of India, Ministry of Defence, in exercise of the powers conferred by Sub-section (3) of Section 4 of the Cantonment Act, 1924, excluded the area excised from the Cantonment of Ambala. At no stage, any enquiry was made to determine whether the land in question was given to the State Government or to the Notified Area Committee. In fact lease of land has been given to 6th respondent on the basis of recommendation made by Deputy Commissioner who in turn had sought report from the Executive Officer regarding ownership of the land. It is only the Executive Officer who had opined that the land belonged to the State Government and his opinion is based on no material or enquiry.
6. It is lastly contended by learned counsel for 6th respondent that on grant of lease, 6th respondent had changed her position by making huge investment and therefore, allotment cannot be questioned on the ground of arbitrariness or favoritism. This contention too is without any merit as I find no equity in favour of 6th respondent, 6th respondent cannot make a grievance that she would suffer an irreparable loss and injury in case allotment is cancelled because all otment in her favour is a case of favoritism. In view of my finding that land given on lease to 6th respondent was not in accordance with provisions of any Act or Rules or general scheme of the Government and is a case of favoritism, it is not necessary for me to notice the various judgments cited by counsel for 6th respondent in support of his objection that this Court should not examine the disputed question of title.
7. For the reasons recorded above, writ petition is allowed with costs and order (Annexure P-4) and lease-deed (Annexure P-8) are hereby quashed. However, the State Government is directed to take decision afresh on the application of 6th respondent for grant of lease in accordance with law within a period of three months from today. While deciding the application, the State Government shall also determine whether land in dispute was transferred by the Government of India, Ministry of Defence, new Delhi, to the State of Haryana or to the Notified Area Committee. In case it finds that the land was transferred to the Notified Area Committee, 6th respondent would be at liberty, to apply to the Municipal Council, Ambala Sadar, Ambala for giving land on lease to her. Costs are quantified at Rs. 2000/- to be deposited within two months with the Bar Association, High Court of Punjab and Haryana, Chandigarh. A copy of this order be sent to the Secretary, Punjab and Haryana High Court Bar Association. Receipt regarding deposit of costs of Rs. 2000/- be placed on file of this case.