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2008 DIGILAW 372 (MAD)

Corporation of Chennai v. D. Kuppan & Others

2008-02-04

P.D.DINAKARAN, R.REGUPATHI

body2008
Judgment :- P.D. Dinakaran, J. The Corporation of Chennai (for brevity, "the Corporation") has filed these appeals against the common order of the learned Single Judge dated 23. 2005 made in W.P.No.6683 to 6701, 6748, 8157 to 8160 of 2004 filed by the respective 1st respondents in these appeals (for brevity, "the contesting respondents"). 2. In the writ petitions, the Corporation was the sole respondent. At the time of admission of these appeals, the First Bench of this Court, by order dated 3. 2007, suo motu, impleaded the Secretary to the Government of Tamil Nadu, Municipal Administration and Water Supply Department, Chennai as the party respondent in these appeals. 3. 1. The contesting respondents are occupants of the tenements at Nariangadu, Egmore, Chennai. Out of 66 tenements available at Naraingadu, Egmore, Chennai, 17 tenements are occupied by Corporation employees, 2 tenements are occupied by Chennai Metro Water Supply and Sewerage Board Employees, 43 tenements are occupied Fire Service Employees and 4 tenements are occupied by private individuals. In that, we are concerned only with 24 tenements occupied by the contesting respondents. 3. 2. The common case of the contesting respondents is that even though the Government by G.O.Ms.No.730, Rural Development and Local Administration, dated 14. 1976 imposed a ban on the disposal of immovable properties owned by the Government or the Government property including land vested in the Municipal Councils, by G.O.Ms.No.907, Municipal Administration and Water Supply Department, dated 110. 1990 they relaxed and lifted the ban imposed by G.O.Ms.No.730, Rural Development and Local Administration, dated 14. 1976 and permitted the Corporation to sell 1014 tenements to the occupants of the same. 3. 3. Citing G.O.Ms.No.907, Municipal Administration and Water Supply Department, dated 110. 1990 as a precedent, the contesting respondents herein made representations to the Government to extend the benefits conferred thereunder, viz., to sell the tenements to them. The Government, after considering the request made by the contesting respondents, by G.O.Ms.No.151, Municipal Administration and Water Supply Department, dated 27. 1995 took a policy decision to relax the ban imposed vide G.O.Ms.No.730, Rural Development and Local Administration, dated 14. 1976 and permitted the Corporation to sell all the 66 tenements at Nariangadu, Egmore, Madras to the respective occupants, viz., the contesting respondents. 3. 4. Even though the Special Officer by resolution No.2453 of 1996, dated 10. 1995 took a policy decision to relax the ban imposed vide G.O.Ms.No.730, Rural Development and Local Administration, dated 14. 1976 and permitted the Corporation to sell all the 66 tenements at Nariangadu, Egmore, Madras to the respective occupants, viz., the contesting respondents. 3. 4. Even though the Special Officer by resolution No.2453 of 1996, dated 10. 1996 permitted the occupants to pay the land and superstructure cost together with interest at the rate of 12% per annum as per G.O.Ms.No.2160, Rural Development and Land Administration Department, dated 210. 1976 and the rate of Rs.3000/- per ground up to the extent of 750 sq.ft. and Rs.6000/- per ground for the extent exceeding 750 sq.ft. to 1014 persons in various locations – occupants of the tenements/and balance 30 tenements in Cemetery Road/and also other tenements in various places in the city, the fact remains that despite issuance of the G.O.Ms.No.151, Municipal Administration and Water Supply Department, dated 27. 1995 and the above-said resolution of the Special Officer dated 10. 1996, the Corporation had not initiated any proceedings to sell the impugned tenements to the contesting respondents. 3. 5. While things stood thus, the Government by letter (Ref) No.183, Municipal Administration and Water Supply Departments, dated 27. 1997 clarified that the request of the occupants of the tenements, who are put in possession on rental basis in their capacity as employees in service of various Corporations as well as Municipalities, to purchase the respective tenements allotted to them cannot be considered as the Corporation as well as the Municipalities are unable to allot tenements to the other employees and directed the local bodies to strictly comply with the said direction, while making it clear that any request by the occupants of tenements for purchase of the same cannot be placed before the Council for passing a resolution and forwarded to the Government. 3. 6. Even after the Government took a policy decision vide letter (Ref) No.183, Municipal Administration and Water Supply Departments, dated 27. 1997 not to sell the tenements allotted to the employees as tenants on rental basis, the contesting respondents have approached this Court in the year 2004 seeking a writ of Mandamus directing the Corporation to comply with the direction of the Government in G.O.Ms.No.151, Municipal Administration and Water Supply Department, dated 27. 1995 and Resolution No.2453 of 1996 of the Special Officer dated 10. 1995 and Resolution No.2453 of 1996 of the Special Officer dated 10. 1996 and to forthwith register the tenements occupied by them at Nariangadu, Varadarajapuram Pantheon Road, Egmore, Chennai – 600 008 in their favour, without even impleading the Government as a party respondent. 3. 1. The case of the contesting respondents was purely based on G.O.Ms.No.907, Municipal Administration and Water Supply Department, dated 110. 1990 and G.O.Ms.No.151, Municipal Administration and Water Supply Department, dated 27. 1995. According to the contesting respondents, by virtue of G.O.Ms.No.151, Municipal Administration and Water Supply Department, dated 27. 1995 they have a legal right to purchase the respective tenements and the Corporation has a duty to register the sale deed in their favour. 3. 2. It was also contended by the contesting respondents that failure to comply with G.O.Ms.No.151, Municipal Administration and Water Supply Department, dated 27. 1995 by the Corporation is arbitrary, more so, when similarly placed persons were allotted 1014 tenements pursuant to G.O.Ms.No.907, Municipal Administration and Water Supply Department, dated 110. 1990. 3. 8. The Corporation in their counter affidavit contested that the impugned land belongs to the Government and they have no authority to sell the same, more particularly in view of the policy decision taken by the Government vide letter (Ref) No.183, Municipal Administration and Water Supply Departments, dated 27. 1997 the request of the occupants of the tenements to purchase the tenements cannot be considered, as the Corporation as well as the Municipalities are local bodies bound by the direction of the Government. According to the Corporation, they have not committed any violation to G.O.Ms.No.907, Municipal Administration and Water Supply Department, dated 110. 1990 and G.O.Ms.No.151, Municipal Administration and Water Supply Department, dated 27. 1995, as the Government themselves have taken a policy decision vide letter (Ref) No.183, Municipal Administration and Water Supply Departments, dated 27. 1997 not to sell the tenements and therefore, the contesting respondents have no legal right to purchase the tenements nor the Corporation has got any legal duty to sell the tenements to the contesting respondents and as such the Corporation had not acted arbitrarily as complained by the contesting respondents. 9. After hearing the rival contentions, the learned Single Judge, by order dated 23. 9. After hearing the rival contentions, the learned Single Judge, by order dated 23. 2005 made in W.P.No.6683 to 6701, 6748, 8157 to 8160 of 2004, finding that nearly 1014 tenements were allotted by the Corporation subsequent to G.O.Ms.No.907, Municipal Administration and Water Supply Department, dated 110. 1990, refused to accept the objection of the learned counsel for the Corporation for not selling the impugned 66 tenements to the contesting respondents and held the same would violate Article 14 of the Constitution of India and came to the conclusion that the contesting respondents are entitled to purchase the tenements upon the Corporation working out the terms and conditions within six months from the date of the said order. 3. 10. Hence, these appeals. 4. Heard Mr.P.S.Raman, learned Additional Advocate General for the Corporation, Mr.K.Ilango, Special Government Pleader for the second respondent/Government and Mr.K.Sridhar for the contesting respondents. 5. Mr.P.S.Raman, learned Additional Advocate General for the Corporation and Mr.K.Sridhar, learned counsel for the contesting respondents reiterated the stand taken by the respective parties before the learned Single Judge. Mr.K.Ilango, learned Special Government Pleader submitted that even though the Government by G.O.Ms.No.151, Municipal Administration and Water Supply Department, dated 27. 1995 took a policy decision to relax the ban imposed vide G.O.Ms.No.730, Rural Development and Local Administration, dated 14. 1976 and permitted the Corporation to sell all the 66 tenements at Nariangadu, Egmore, Madras to the respective occupants, viz., the contesting respondents, they subsequently, by letter (Ref) No.183, Municipal Administration and Water Supply Departments, dated 27. 1997 clarified that the request of the occupants of the tenements to purchase the respective tenements cannot be considered as the Corporation as well as the Municipalities are unable to allot tenements to the other employees and directed the local bodies to strictly comply with the said direction, while making it clear that any request by the occupant of tenements for purchase of the same cannot be placed before the Council for passing a resolution and forwarded to the Government. 6. Concededly, the contesting respondents have approached this Court by way of writ petitions only during the year 2004, viz., after issue of the above-said letter (Ref) No.183, Municipal Administration and Water Supply Departments, dated 27. 1997 by the Government, but the contesting respondents have not chosen to challenge the said letter dated 27. 1997 till date. 7. 6. Concededly, the contesting respondents have approached this Court by way of writ petitions only during the year 2004, viz., after issue of the above-said letter (Ref) No.183, Municipal Administration and Water Supply Departments, dated 27. 1997 by the Government, but the contesting respondents have not chosen to challenge the said letter dated 27. 1997 till date. 7. An argument is, of course, possible for the contesting respondents that G.O.Ms.No.151, Municipal Administration and Water Supply Department, dated 27. 1995 is binding on the Corporation and the same would prevail over the Government letter (Ref) No.183, Municipal Administration and Water Supply Departments, dated 27. 1997. It is needless to observe that even though a decision was taken by the Government vide G.O.Ms.No.151, Municipal Administration and Water Supply Department, dated 27. 1995 to sell the Nariangadu Tenements to its occupants, vide the letter (Ref) No.183, Municipal Administration and Water Supply Departments, dated 27. 1997, the Government specifically directed not to sell the tenements since the same were to be allotted to other Corporation employees who are in service on rental basis. We are, therefore, unable to appreciate the contention of the learned counsel for the contesting respondents that they have a legal right to purchase their respective tenements in the light of G.O.Ms.No.151, Municipal Administration and Water Supply Department, dated 27. 1995. 8. The relief claimed by the contesting respondents is that a writ of mandamus be issued directing the Corporation to comply with the direction of the Government in G.O.Ms.No.151, Municipal Administration and Water Supply Department, dated 27. 1995 and Resolution No.2453 of 1996 of the Special Officer dated 10. 1996 and to forthwith register the tenements occupied by them at Nariangadu, Varadarajapuram Pantheon Road, Egmore, Chennai – 600 008 in their favour. At this juncture, it is apposite to refer the principles, on which a writ of mandamus can be issued, as laid down by the Apex Court in Bihar Eastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi Singh, [1977] 4 SCC 145: “A writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. Society Ltd. v. Sipahi Singh, [1977] 4 SCC 145: “A writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance.” (emphasis supplied) 9. Once there is no dispute that the Government alone is the owner of the lands and the contesting respondents are the occupants of the respective tenements only in their capacity as the employees of the Corporation on rental basis and there is no privity of contract between the contesting respondents and the Government, and since we are convinced and have already observed that the contesting respondents have no legal right over the respective tenements in view of the policy decision taken by the Government by letter (Ref) No.183, Municipal Administration and Water Supply Departments, dated 27. 1997, we are clear that the writ petitions for issue of writ of Mandamus as prayed for cannot be issued based on G.O.Ms.No.151, Municipal Administration and Water Supply Department, dated 27. 1995. 10. That apart, it is a settled law that the Government is entitled to make pragmatic adjustments and policy decision which may be necessary or called for under the prevalent peculiar circumstances and the court cannot strike down a policy decision taken by the Government merely because it feels that another decision would have been fairer or wiser or more scientific or logical, vide Netai Bag v. State of W.B., [2000] 8 SCC 262. 11. 11. The Apex Court in BALCO Employees’ Union (Regd.) v. Union of India, [2002] 2 SCC 333 held that unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the court; it is neither within the domain of the courts nor the scope of the judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved, nor are the courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. 12. In view of the above well settled proposition of law, in our considered opinion, a direction cannot be issued directing the Corporation to sell the tenements in favour of the contesting respondents as the Government itself has taken a policy decision not to sell the tenements to the occupants vide letter (Ref) No.183, Municipal Administration and Water Supply Departments, dated 27. 1997 in the larger interest of the Corporation, which has got to allot the tenements on rental basis to other employees also. 13. With regard to the contention made on behalf of the contesting respondents that failure to implement G.O.Ms.No.151, Municipal Administration and Water Supply Department, dated 27. 1995, as implemented in the case of similarly placed 1014 persons pursuant to G.O.Ms.No.907, Municipal Administration and Water Supply Department, dated 110. 1990, would violate Article 14 of the Constitution of India, a reference to the decision of the Apex Court in Bannari Amman Sugars Ltd. v. Commercial Tax Officer, (2005) 1 SCC 625 , would be appropriate: "8. A person may have a “legitimate expectation” of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. The expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice. The doctrine of legitimate expectation has an important place in the developing law of judicial review. ... The expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice. The doctrine of legitimate expectation has an important place in the developing law of judicial review. ... It is generally agreed that “legitimate expectation” gives the applicant sufficient locus standi for judicial review and that the doctrine of legitimate expectation to be confined mostly to right of a fair hearing before a decision which results in negativing a promise or withdrawing an undertaking is taken. The doctrine does not give scope to claim relief straightaway from the administrative authorities as no crystallised right as such is involved. The protection of such legitimate expectation does not require the fulfilment of the expectation where an overriding public interest requires otherwise. In other words, where a person’s legitimate expectation is not fulfilled by taking a particular decision then the decision-maker should justify the denial of such expectation by showing some overriding public interest. [Union of India v. Hindustan Development Corpn., [1993] 3 SCC 499.] 9. While the discretion to change the policy in exercise of the executive power, when not trammelled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for discernible reasons, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualised than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness." (emphasis supplied) 14. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness." (emphasis supplied) 14. In the case on hand, we are convinced that Article 14 of the Constitution of India would be violated if G.O.Ms.No.151, Municipal Administration and Water Supply Department, dated 27. 1995 is given effect to, as rightly apprehended by the Government while taking policy decision vide letter (Ref) No.183, Municipal Administration and Water Supply Departments, dated 27. 1997. Moreover, we are much impressed by the spirit and substance of the letter (Ref) No.183, Municipal Administration and Water Supply Departments, dated 27. 1997, viz., the tenements are meant only for the employees who are in the service of various Corporations and Municipalities on rental basis and if such tenements are sold to the occupants who are in possession only in the capacity of employees of the respective Corporations, the other employees would be deprived of their legitimate right to be tenants of these tenements and it would be difficult for the Corporation to find out new property for other employees, and any view contrary to the letter (Ref) No.183, Municipal Administration and Water Supply Departments, dated 27. 1997 would be a gross violation of Article 14 of the Constitution of India. For all the reasons aforesaid, we are unable to agree with the view taken by the learned Single Judge. We allow these appeals and set aside the order of the learned Single Judge dated 23. 2005 made in W.P.No.6683 to 6701, 6748, 8157 to 8160 of 2004. No costs. Consequently, M.P.No.1 of 2007 (24 petitions) and M.P.No.2 of 2007 (24 petitions) are closed.