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2010 DIGILAW 179 (AP)

Kotha Ramakanth v. Government of A. P.

2010-03-09

D.S.R.VERMA, G.V.SEETHAPATHY

body2010
COMMON ORDER: [Per G.V.SEETHAPATHY. J] i) W.P.No.12657 of 2009 is filed by way of public interest litigation seeking writ of Mandamus declaring the action of the respondents 1 and 2 in extending time to the unofficial respondent No.3 in connection with the sale of Ac.28.01 guntas of land in Sy.Nos.848, 849, 376 and 877 of Narsapur Shivar village, Bodhan Mandal, Nizamabad district as per the auction conducted on 28.01.2003, as illegal, arbitrary and against the public interest and consequently directing the respondents 1 and 2 not to effect registration of the said land in favour of the 3rd respondent. ii) W.P.No.12331 of 2009 is filed by the 3rd respondent in W.P.No.12657 of 2009, who is the auction purchaser, seeking writ of Mandamus declaring the inaction of the 2nd respondent-The Nizam Sugars Limited (Government Company) [for short ‘the Company’] in not executing the registered sale deed in his favour pursuant to the sale letter dated 03.06.2009, as illegal, void and arbitrary and consequently, directing the 2nd respondent to execute the sale deed for the said extent of Ac.28.01 guntas of land. 2. Heard the learned counsel for the petitioner, learned Government Pleader, representing the State and the learned counsel for the Nizam Sugars Limited, in both the matters. Perused the records. 3. As the subject matter of the two writ petitions is inter-related, both the writ petitions are heard together and are being disposed of by this common order. 4. The writ petitioner in WP No.12657 of 2009, who is said to be an Ex-MLA, Bodhan constituency, claims that he has concern for the public property and therefore, he filed the writ petition in public interest. According to him, an extent of Ac.28.01 guntas of land belonging to the Company, is sought to be alienated in favour of the 3rd respondent [Petitioner in WP No.12331 of 2009] for a pittance. He alleges that without due publicity, the lands have been auctioned on 28.01.2003 and 3rd respondent purchased the same for paltry sum of Rs.26.20 lakhs. As per the terms and conditions of the tender notice issued on 30.12.2003, 25% of the sale consideration including EMD is to be paid within three days and the remaining 75% within 30 days from the date of receipt of confirmation of sale. As per the terms and conditions of the tender notice issued on 30.12.2003, 25% of the sale consideration including EMD is to be paid within three days and the remaining 75% within 30 days from the date of receipt of confirmation of sale. The petitioner alleges that except paying EMD of Rs.1.64 lakhs, 3rd respondent has not paid 25% of the sale consideration within three days as required under the tender conditions nor did he pay balance 75% of sale price within 30 days of the confirmation of the sale and in spite of several letters addressed to him by the Company, the 3rd respondent has not responded. However, the time was extended from time to time by the Company in favour of the 3rd respondent to pay the amount of Rs.26.20 lakhs. The petitioner alleges that the land is presently worth Rs.4 crores and even according to the Government valuation for the purpose of stamp duty and registration, each acre is worth Rs.7.5 lakhs and at that rate, the value of the acquired land works out to Rs.2.10 crores. The Company ought to have called for fresh tenders after cancelling the acceptances, as the 3rd respondent failed to remit the sale consideration. The petitioner alleges that the Managing Director of the company apparently on the instructions of the Government, extended time to the 3rd respondent on 23.04.2009 demanding him to pay interest at 18% per annum instead of cancelling the sale and calling for fresh tenders. The petitioner further pleads that as there are several SC/ST families, who were homeless, the land may be assigned to them at the same rate the 3rd respondent is seeking to purchase or the land may be retained for public purpose. 5. The Managing Director of the 2nd respondent-company filed counter-affidavit contending that the company collected a sum of Rs.26 lakhs towards interest at 18% per annum from the 3rd respondent in addition to the sale price of Rs.26.20 lakhs and the interest at 18% per annum adequately takes care of the appreciation in the value of the land from 2003. 5. The Managing Director of the 2nd respondent-company filed counter-affidavit contending that the company collected a sum of Rs.26 lakhs towards interest at 18% per annum from the 3rd respondent in addition to the sale price of Rs.26.20 lakhs and the interest at 18% per annum adequately takes care of the appreciation in the value of the land from 2003. It is further contended by the 2nd respondent-company that the Government of Andhra Pradesh constituted a committee under the Chairmanship of the District Collector, Nizamabad for disposal of the farm lands of the company by way of tender cum auction and the said committee disposed of about 2400 acres of land in five phases during 2001-04 and the Government of Andhra Pradesh gave wide publicity for the sale of lands by publishing the sale notification on 30.12.2002 for the third phase of the sale. The tender cum auction was conducted in the Collectorate at Nizamabad on 28th and 29th January 2003. In all 183 bids were received for purchase of 994 acres of land. The Government of Andhra Pradesh by letter dated 02.08.2003 communicated the policy decision to the effect that in respect of delayed payment of final sale consideration by the preferred bidders, the company may charge interest at the rate of 18% per annum and complete the sale transaction and accordingly, 2nd respondent issued notices dated 16.01.2004 to the 3rd respondent to remit the balance of sale price together with interest at 18% per annum by 31.01.2004. The 2nd respondent collected interest at 18% per annum from the 3rd respondent and the total amount so collected was Rs.52.84 lakhs as against the original sale price of Rs.26.20 lakhs, which represents an increase of over 100%. The Company has collected interest at the rate of 18% per annum from other purchasers of other lands as per the decision of the Government and hence, there was no question of showing any undue favour in favour of 3rd respondent. Being conscious of social obligation towards SC/ST/BC and Minorities, the Company has already alienated more than 5000 acres of land to welfare corporations at concessional rate of Rs.20,000/-per acre for the benefit of landless poor. The 3rd respondent remitted the sale price along with interest at 18% per annum only on 30.05.2009. Being conscious of social obligation towards SC/ST/BC and Minorities, the Company has already alienated more than 5000 acres of land to welfare corporations at concessional rate of Rs.20,000/-per acre for the benefit of landless poor. The 3rd respondent remitted the sale price along with interest at 18% per annum only on 30.05.2009. In view of the abnormal delay on the part of the 3rd respondent to remit the balance sale price, the company has informed him by letter dated 19.06.2009 that it requires certain administrative and legal clearances before proceeding to register the sale deed. When the 3rd respondent attempted to enter forcibly, the company sought the help of local police and district administration and averted the illegal attempts of the 3rd respondent. Even now the possession of land has not been delivered to the 3rd respondent. Meanwhile, 3rd respondent filed WP No.12331 of 2009 praying that he should not be dispossessed from the lands and this Court by order dated 24.06.2009 in WPMP No.15938 of 2009 directed both parties to maintain status quo. It is further pleaded by the 2nd respondent in their counter-affidavit that subject to the decision of the Court in both the writ petitions, the company is prepared to cancel the sale of Ac.28.01 guntas and refund the sale price and interest aggregating to Rs.52.84 lakhs collected from the 3rd respondent. It is further alleged that there is no public interest involved in the present writ petition. 6. The 3rd respondent filed counter-affidavit contending that the petitioner filed present writ petition only to blackmail the 3rd respondent in the guise of public interest litigation. When the petitioner is involved in number of cases of fraud relating to passport scam, human trafficking, illegal sale of immovable properties etc., he has no locus standi to question the policy decision of the Government. It is further contended by the 3rd respondent that he was successful in the tender for an extent of Ac.28.01 guntas in the public auction, which was conducted after due publicity and at the time of auction, portion of the land was occupied by landless poor persons and the delay in payment of the sale price occurred in getting the lands free and he paid the entire sale consideration, including interest at 18% per annum, totaling to Rs.51,19,767/-. The 2nd respondent issued orders confirming the sale and the process for execution of the registered sale deed is in progress. The 2nd respondent has also showed the land and 3rd respondent is in possession of the same. Due to political pressure from the petitioner, 2nd respondent delayed execution of the registered sale deed. The 3rd respondent, therefore, filed WP No.12331 of 2009 and this Court granted order of status quo on 24.06.2009. The 3rd respondent continued to be in possession of the land and he removed all the bushes and made the land fit for cultivation. The petitioner has not come to the Court with clean hands and he does not have any concern for the public interest and he filed the present writ petition only to make illegal gain by blackmailing this respondent, as this respondent never yielded to the demands of the petitioner. 7. The petitioner filed a reply affidavit, virtually reiterating the contentions raised in the original affidavit filed in support of the writ petition and denying the allegations made by the 3rd respondent pertaining to the conduct and character of the petitioner. 8. The affidavit filed in support of the writ petition i.e., WP No.12331 of 2009 filed by the auction purchaser contains the same averments as those pleaded in the counter-affidavit filed by the 3rd respondent in WP No.12657 of 2009. 9. The admitted facts in brief are as follows: The 2nd respondent-Nizam Sugars Limited, offered to sell an extent of Ac.28.01 guntas of land situated in Sy.Nos.848, 849, 876 and 877 of Narsapur Shivar village, Bodhan Mandal. In the course of sale of the land belonging to the company in a phased manner, the schedule of the tender was issued on 30.12.2002 and due publicity was given by way of notification in the leading newspapers. The auction was conducted on 28th and 29th January 2003 and the 3rd respondent became the successful bidder for a total sale price of Rs.26.20 lakhs. As per the terms and conditions of the tender, the successful bidder was required to pay 25% of the bid amount, including EMD within three days and the remaining 75% within thirty days from the date of receipt of the confirmation of the sale. It is not disputed that the 3rd respondent-auction purchaser failed to remit the said amount within the prescribed time. It is not disputed that the 3rd respondent-auction purchaser failed to remit the said amount within the prescribed time. However, the Government took a policy decision in respect of delayed payment of final sale consideration by the preferred bidders, to charge the interest at the rate of 18% per annum and communicated the same to the company by letter dated 02.08.2003. As seen from the counter filed by the company, total extent of 994 acres was put to auction in the third phase and in all 183 bids were received and the time for remittance of sale price was extended in favour of all the auction purchasers, including 3rd respondent in pursuance of the policy decision taken by the Government. It is, therefore, not a case where the 3rd respondent was singled out for any preferential treatment in the matter of extension of time for payment of the balance of sale price. In fact, the 3rd respondent paid the bid amount of Rs.26.20 lakhs together with interest at 18% per annum and the total amount came to Rs.51,19,767/-including EMD of Rs.1,64,000/-. The total amount paid by the 3rd respondent is around Rs.52.84 lakhs. It is, therefore, not a case where the 3rd respondent was permitted to get away by paying bid amount of Rs.26.20 lakhs alone for the extent of Ac.28.01 guntas as alleged by the petitioner. The 3rd respondent was made to pay and in fact he paid interest at 18% per annum and the interest component was almost equal to the principal bid amount and thereby, 3rd respondent has paid double the bid amount. The said increase is of 100%, according to the 2nd respondent, is taken care of the appreciation of the value of the land adequately since the date of auction in 2003 till the date of payment in 2009. 10. The letter dated 12.06.2009 of the company shows that the 3rd respondent remitted the entire amount due including interest and therefore, the Managing Director has approved the handing over of physical possession of the land and registration of the sale deed in his favour. The letter dated 30.05.2009 addressed by the 3rd respondent to the Managing Director of the company shows that the particulars of the demand drafts/bank cheques, under which total amount of Rs.51,19,767/-was remitted. The letter dated 30.05.2009 addressed by the 3rd respondent to the Managing Director of the company shows that the particulars of the demand drafts/bank cheques, under which total amount of Rs.51,19,767/-was remitted. The 3rd respondent addressed a letter dated 17.06.2009 to the company requesting them to take steps for execution of the sale deed and the 2nd respondent-company gave a reply dated 19.06.2009 stating that in view of the failure of the 3rd respondent to comply with the terms of the sale and abnormal delay of six years in remitting the amount, it requires certain administrative and legal clearances before the company proceeds to register the sale deed. In the said reply, it was pointed out by the company that the 3rd respondent failed to avail offer given in January 2004 to pay the outstanding amount with interest and still the Company gave one more opportunity in April 2009 to pay the balance sale price with interest. When once the company accepted the amount of Rs.51,19,767/-paid by the 3rd respondent under various demand drafts/bank cheques, as can be seen from the letter dated 30.05.2009 and the endorsement of the receipts contained thereon and when the said amount has been accepted without any protest and in accordance with the policy of the government by charging interest at 18% per annum for the delay, it is not open for the 2nd respondent to complained about the delay in making the payment to the 3rd respondent or to wriggle out of the transaction or to avoid taking further steps to complete the transaction of sale on the ground that there has been abnormal delay in payment of the balance sale price. When the 3rd respondent has paid interest at 18% per annum for the period of delay and when the 2nd respondent accepted the same in pursuance of the policy of the government, the fact that there has in fact been delay in remittance of the balance, pales into insignificance and the 2nd respondent cannot on the ground of the said delay avoid execution of the sale deed, as the 3rd respondent has compensated for the delay, by paying interest. In the letter dated 19.06.2009, the 2nd respondent, however, stated that they are taking steps for completing required formalities as early as possible. In the letter dated 19.06.2009, the 2nd respondent, however, stated that they are taking steps for completing required formalities as early as possible. The said letter dated 19.06.2009 was addressed in reply to the letter dated 17.06.2009 wherein, the 3rd respondent has stated that he was ready and willing to pay the stamp duty and other registration charges as required to be paid by the 2nd respondent in their letter dated 12.06.2009 and the 2nd respondent, who therefore, called upon to execute a registered sale deed in favour of 3rd respondent for the said extent of Ac.28.01 guntas purchased by 3rd respondent in the public auction in respect of which, 3rd respondent has paid the entire sale price together with interest at 18% per annum, which was also admittedly received by the 2nd respondent. 11. The petitioner in WP No.12657 of 2009, who is stated to be an Ex-MLA claims to have filed the present writ petition to safeguard the public interest. As according to him, huge extent of Ac.28.01 guntas is being sold away to the 3rd respondent for a paltry amount of Rs.26.20 lakhs. 12. As seen from the records, the said contention is factually incorrect, as the 2nd respondent has charged and collected a total sum of Rs.52.84 lakhs from the 3rd respondent. The interest at 18% per annum was charged and collected from the 3rd respondent not by way of any preferential treatment but in pursuance of policy decision taken by the Government extending the same to all successful bidders in respect of other lands also for which public auction was held. Hence, no mala fides can be attributed to the 2nd respondent when they acted in accordance with the policy of the Government. 13. The 3rd respondent in his counter-affidavit made certain allegations against the petitioner touching upon his conduct and character to show that he lacks bona fides and he is only a busybody trying to blackmail the 3rd respondent. In his reply-affidavit, the petitioner has denied the said allegations. 14. Be that as it may, the fact remains that the auction was conducted in the year 2003 and the petitioner is said to have given representation to the Chief Minister on 24.06.2009 for the first time questioning the auction sale in favour of 3rd respondent and seeking assignment of the lands in favour of poor persons belonging to SC/ST/BC communities. Be that as it may, the fact remains that the auction was conducted in the year 2003 and the petitioner is said to have given representation to the Chief Minister on 24.06.2009 for the first time questioning the auction sale in favour of 3rd respondent and seeking assignment of the lands in favour of poor persons belonging to SC/ST/BC communities. On the same day i.e., 24.06.2009 the present writ petition No.12657 of 2009 is filed. If really, the petitioner had any concern for the public or public property and he intended to safeguard any public interest, there is absolutely no reason as to why he kept quiet for nearly six years. It is obvious that when the 3rd respondent was corresponding with the 2nd respondent for execution of the sale deed after remitting the entire amount with interest in June 2009, the petitioner has entered into the scene with a view to stall the execution of the sale deed for the reasons best known to himself, but certainly not to safeguard any public interest. Except claiming to be an Ex-MLA, the affidavit filed in support of the writ petition does not disclose any credentials for the petitioner to espouse the cause of public. 15. In ‘Villianur Iyarkkai Padukappu Maiyam vs. Union of India & others (2009)7 SCC 561 ’ the apex Court held as follows: “It is clear that the only ground on which a person can maintain a PIL is where there has been an element of violation of Article 21 or human rights or where the litigation has been initiated for the benefit of the poor and the underprivileged who are unable to come to the Court due to some disadvantage.” 16. In the above decision, the Apex Court extracted an earlier decision of the Apex Court in ‘BALCO Employees’ Union vs. Union of India’, after review of law on the point of locus standi, wherein it was held as follows: “No doubt a person personally aggrieved by any such decision, which he regards as illegal, can impugn the same in a court of law, but, a public interest litigation at the behest of a stranger ought not to be entertained. Such a litigation cannot per se be on behalf of the poor land the downtrodden, unless the Court is satisfied that there has been violation of Article 21 and the persons adversely affected are unable to approach the Court.” The Apex Court further held as follows: “The appellants cannot, therefore, proceed to challenge the award of the contract in favour of Respondent 11 on other grounds as this would amount to challenging the policy decision of the Government of Pondicherry through a PIL, which is not permissible. Thus on the ground of locus standi also the appeals should fail.’ The apex Court further held as follows: “In the matter of policy decision and economic tests the scope of judicial review is very limited. Unless the decision is shown to be contrary to any statutory provision or the Constitution, the Court would not interfere with an economic decision taken by the State. The Court cannot examine the relative merits of different economic policies land cannot strike down the same merely on ground that another policy would have been fairer and better. ……….. ….. It is neither within the domain of the Courts nor the scope of 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 lat the behest of a petitioner merely because lit has been urged that a different policy would have been fairer or wiser or more scientific or more logical. Wisdom and advisability of economic policy is ordinarily not amenable to judicial review. In matters relating to economic issues the Government has, while taking a decision, right to ‘trial and error’ as long as both trial land error are bona fide and within the limits of the authority. For testing the correctness of a policy, the appropriate forum is Parliament and not the Courts. Normally, there is always a presumption that the governmental action is reasonable and in public interest and it is for the party challenging its validity to show that it is wanting in reasonableness or is not informed with public interest. This burden is a heavy one and it has to be discharged to the satisfaction of the Court by proper and adequate material. This burden is a heavy one and it has to be discharged to the satisfaction of the Court by proper and adequate material. The Court cannot lightly assume that the action taken by the Government is unreasonable or against public interest because there are large number of considerations, which necessarily weigh with the Government in taking an action.” 17. In a recent decision in ‘State of Uttaranchal vs. Balwant Singh Chaufal & others 2010(1) Supreme 227 , the Apex Court in order to preserve the purity and sanctity of the PIL, issued certain directions including the following: 1. The Courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations. 2. The Courts should prima-facie verify the credentials of the petitioner before entertaining a PIL; 3. The Court should be prima-facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL; 4. The Court should be fully satisfied that substantial public interest is involved before entertaining the petition; 5. The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation. 6. The Court should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations. 18. In the present case, the petitioner failed to show that he has got any locus standi to question the action of the 2nd respondent taken by them in pursuance of the policy decision of the Government and he also failed to discharge the heavy burden lying on him to show that the policy decision taken by the government is wanting any reasonableness or is not informed in the public interest. 19. 19. In view of the principles laid down by the Apex Court in the above decisions relating to the scope of judicial review of a policy decision taken by the Government pertaining to financial management and economic affairs and in order to preserve the purity and sanctity of the PIL, it is held that the challenge to the action of the 2nd respondent and the attempt to stall further steps towards completion of the sale transaction in favour of 3rd respondent are wholly unsustainable. The petitioner also failed to establish the bona fides in filing the writ petition by way of public interest litigation. The writ petition i.e., WP No.12657 of 2009 is wholly devoid of any merits. The auction-purchaser who filed WP No.12331 of 2009 is held entitled for execution of the registered sale deed in his favour. 20. In the result, W.P.No.12657 of 2009 is dismissed and W.P.No.12331 of 2009 is allowed. There shall be no order as to costs.