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CASE NO.: Appeal (civil)  477 of 2006

PETITIONER: K.K. Bhalla

RESPONDENT: State of M.P. & Ors.

DATE OF JUDGMENT: 13/01/2006

BENCH: S.B. Sinha & P.P. Naolekar

JUDGMENT: J U D G M E N T Appeal (civil)  477 of 2006 [@ S.L.P. (C) No. 12442 of 2003]  W I T H

CIVIL APPEAL NO.            478                OF 2006 [@ SLP (C) No. 22582 of 2004]  

S.B. SINHA, J :

       Leave granted in S.L.Ps.

       Both these appeals involving common questions of law and fact were  taken up for hearing together and are being disposed of by this common  judgment.

       Two Writ Petitions in the nature of public interest litigations were  filed by the Appellant herein before the High Court questioning allotment of  lands measuring 20000 sq. feet and 8000 sq. feet in favour of Sh.  Bishambhar Dayal Aggrawal, proprietor Dainik Bhaskar Newspaper,  Jabalpur and YMCA, private respondents herein respectively by the State of  Madhya Pradesh.

Jabalpur Development Authority (JDA). The lands in question indisputably come within the Master Plan made  in terms of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973  (for short ’the 1973 Act") in relation to the town of Jabalpur brought about  by the Jabalpur Development Authority (for short "JDA"), a statutory  authority constituted thereunder.   Prior to coming into force of the 1973  Act, the legislature of the State of Madhya Pradesh enacted the Madhya  Pradesh Town Improvement Trusts Act, 1960 (for short "the 1960 Act") in  terms whereof Jabalpur Improvement Trust was created for the purpose of  carrying out the provisions thereof in the town of Jabalpur wherefor it was  entitled to acquire lands belonging to private parties and obtain such land  from the State and others by way of agreement, sale etc.  There appears to be  some dispute as to whether the lands in question are acquired lands or nazul  lands belonging to the State of Madhya Pradesh.  However, it is not in  dispute that the town planning scheme framed by the said trust was approved  by the State and by a notification dated 20th September, 1974, the lands  stood vested in the trust in terms of sub-section (2) of Section 71 of the 1960  Act.

       The lands in question are situate in the commercial area carved out of  the said Master Plan.  The authority indisputably was entitled to allot plots in  favour of the applicants only in terms of the rules and regulations framed  thereunder.  Allegedly, pursuant to or in furtherance of a purported policy  decisions adopted by it, the State of Madhya Pradesh allotted land to Sh.

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Bishambhar Dayal Aggrawal, proprietor of ’Dainik Bhaskar’, a newspaper  inter alia published from Jabalpur for establishment of an industry, i.e., for  printing and publication of a newspaper known as Dainik Bhaskar.  The said  newspaper is published from nine states.        Similarly, an application having  been made by YMCA which is said to be a charitable organization, 8000 sq.  feet of land was allotted to it.

       The Appellant herein in the writ petition filed before the High Court  inter alia pleaded that a proposal was made for construction of an auditorium  and a cinema hall by the authority with the cooperation of the M.P. Films  Development Corporation wherefor foundation stone was also laid at the site  which has since been allotted in favour of Shri Bishambhar Dayal Aggrawal.   

Further contentions of the Appellants  before the High Court are as  under:-

       Such allotment having been made on a pick and choose method  without following the procedures laid down therefor and without issuing any  advertisement was illegal.  Such allotment having moreover been made for  industrial purpose, was in contravention of the Master Plan drawn in terms  of the provisions of the 1973 Act as thereby change of purpose as regard  user thereof has been effected.  Even 50% rebate both in respect of the  premium and ground rent was given in utter violation of the statutory  provisions.

       The contention of the Respondent before the High Court, on the other  hand, was that the said allotments were made in terms of a policy decision  adopted by the State.

       The High Court by reason of the impugned judgments dismissed the  writ petitions filed by the Appellants herein holding that the grants in favour  of the Respondents were made for public purposes which the State was  empowered to do in terms of Rule 3 of the Madhya Pradesh Nagar Tatha  Gram Nivesh Vikasit Bhoomiyo, Griho, Bhavanotatha Anya Sanrachnaon  Ka Vyayan Niyam, 1975 ( for short "the 1975 Rules").

       Mr. Shiv Sagar Tiwari, learned counsel appearing on behalf of the  Appellant in Civil Appeal arising out of SLP (C) No. 12442 of 2003,  submitted that allotment of valuable commercial land in favour of the  Respondent was made in favour of the private Respondent herein by the  State in utter violation of the 1973 Act and the 1975 Rules inasmuch as  therefor no advertisement was made and by reason thereof a commercial  area has been converted into an industrial area.  It was urged that the High  Court committed a manifest error in passing the impugned judgment insofar  as it failed to take into consideration that the State cannot distribute its  largess without following the provisions contained in the 1973 Act and the  1975 Rules which is  violative  of Article 14 of the Constitution of India.   

       A commercial area, Mr. Tiwari submitted, would mean an area where  shops, restaurants, etc. are run and thus the Respondent cannot be entitled to  run an industry.  It was pointed out that the State directed allotment of the  said land without fixing the quantum of the cost of the land, the market value  whereof was about Rs.2.50 crores reckoned at the rate of  Rs.500/- per sq. ft.  

       Mr. Prakash Shrivastava, learned counsel appearing on behalf of the  Appellant in Civil Appeal arising out of SLP (C) 22582 of 2004, submitted  that the High Court committed an error in passing the impugned judgment  insofar as it having held that the land in question would come within the  purview of Rule 3 of the 1975 Rules proceeded to hold that Rules 19 and 20  thereof shall apply which are applicable only in relation to the land  belonging to the authority and not to the State.  It was further submitted that  even in terms of the 1975 Rules only land measuring upto 5000 sq. feet  could have been allotted in favour of YMCA but the land allotted in its  favour measures 8000 sq. feet.

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       Mr. Vivek K. Tankha, learned senior counsel appearing on behalf of  the Respondent in Civil Appeal arising out of SLP (C) 12442 of 2003, on the  other hand, argued that the Appellant herein did not approach the court with  clean hands inasmuch as he had not questioned similar allotments made in  favour of other persons similarly situated.  It was submitted that the State  passed the impugned orders at the instance of the JDA itself in view of the  fact that the lands in question being nazul lands, the approval and/ or  permission of the State therefor was mandatorily required to be obtained..

       Mr. Tankha further drew our attention to the events which took place  subsequent to the passing of the impugned order and would submit that  keeping in view of the fact that the Respondent had placed orders for  printing machinery worth rupees two crores, this is a fit case in which the  court should not exercise its discretionary jurisdiction in condoning delay of  156 days in filing the special leave petition and/ or exercise its jurisdiction  under Article 136 of the Constitution.  The allotment of land in any event  having not been found to be arbitrary or mala fide, there is no reason as to  why this Court should interfere with the judgment of the High Court.

       Mr. Anoop G. Chaudari, learned senior counsel appearing on behalf  of YMCA, submitted that the Respondent being a charitable organization, it  was entitled for allotment of a piece of land having regard to the fact that  other communities similarly situated had been allotted lands.  Our attention  was drawn to the fact that an application in this behalf was filed by YMCA  before the JDA whereupon the Chairman referred the matter to the State of  Madhya Pradesh for passing necessary order.  It is true that no  recommendation was made by the JDA for allotment of land but the said  application was not rejected either.  Stand of the JDA in this behalf was that  it was for the State Government to make allotment.  It was in the  aforementioned perspective the Government of Madhya Pradesh through its  Under Secretary by a letter dated 21.8.1996 communicated as under:

"Out of the authorities land located in the civic  centre, which has been sought by Y.M.C.A.  Institution, out of that 8000 sq. feet area should be  allotted to the General Secretary Y.M.C.A.  Institution.

2.      According to the guidelines contained in the  Revenue Department Circular No. M-6- 173/96/Seven/Sa/2-B/Nazul, dated 31.5.96, the  said institution should be given the land at a  discount of 50% on the market rate and 50%  discount should also be given in the lease rent.   The development authority should also work out  the requisite terms and conditions."

       It was urged that as in the instant case, the procedures prescribed  under the Rules had been followed and the discretion vested in the State has  been properly exercised, this Court should not exercise its discretionary  jurisdiction.  It was urged that the JDA was bound to ask for the sanction for  such allotment in terms of Rule 3 of the 1975 Rules and as in the instant case  a direction has been issued, the same should be considered as sanctioning the  proposal of the JDA.  

       As regard the submission that not more than 5000 sq. feet of land  could be allotted, it was urged that no such plea was taken before the High  Court.  It was further pointed out that part of the land is to be utilized for  commercial purposes.   

       Ms. Vibha Datta Makhija, learned counsel appearing on behalf of the  State also supported the impugned judgment and submitted that all actions  were taken in terms of the Rules.  Legality or otherwise of the allotment of  land in favour of the private respondents herein according to the learned

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counsel must be judged in the context of the law prevailing in this behalf.

       Before adverting to the rival contentions as noticed hereinbefore, we  may notice relevant provisions of the statutes.

       The 1960 Act was enacted to consolidate and amend the law relating  to the establishment of Improvement Trusts for the purpose of making and  executing Town Improvement Schemes in certain towns of Madhya Pradesh.   Jabalpur Improvement Trust was created under the said Act.  Improvement  Scheme framed by the said Trust in terms of the provisions the statute was  required to be implemented.  The State has the requisite power to sanction  schemes in terms of Section 51 of the 1960 Act.  Section 52 postulates that  upon such sanction it shall announce, except in the case of a deferred street  scheme, development scheme or town expansion scheme that the Trust shall  forthwith proceed to execute the same by notification; and may order that  any street, square, park, open space or other land, or any other part thereof,  which is the property of the Government and managed by the Central  Government or the State Government shall, subject to such conditions as it  may impose, vest in the Trust for the purpose of the scheme.  Publication of  such a notification was to be treated as a conclusive evidence that the  scheme has duly been framed and sanctioned.   

       Chapter V of the 1960 Act provided for acquisition and disposal of  land.  The Trust in terms of Section 67 was entitled to acquire, by purchase,  lease or exchange any land within the area comprised in a sanctioned  scheme from any person under an agreement which indisputably would  include the State.  Section 68 provided for notice of acquisition of land.

       The 1960 Act, however, was repealed and replaced by the 1973 Act in  terms whereof JDA was created.

       The 1973 Act was enacted to make provisions for planning and  development and use of land; to make better provision for the preparation of  development plans and zoning plans with a view to ensuring that town  planning schemes are made in a proper manner and their execution is made  effective; to constitute Town and Country Planning Authority for proper  implementation of town and country development plan; to provide for the  development and administration of special areas through Special Area  Development authority; to make provision for the compulsory acquisition of  land required for the purposes connected therewith.

       "Commercial use" has been defined in Section 2(e) to mean "the use  of any land or building or part thereof for the purpose of carrying on any  trade, business or profession, or sale or exchange of goods of any type  whatsoever and includes running of with a view to making profit, hospitals,  nursing homes, infirmaries, educational institutions, hotels, restaurants and  and boarding houses (not being attached to any educational institution)  sarais, and also include the use of any land or buildings for storage of goods  or as an office, whether attached to an industry or otherwise."

       "Development plan" has been defined in Section 2(g) to include  zoning plan and "existing land use map" has been defined in Section 2(i) to  mean a map indicating the use to which lands in any specified area or put at  the time of preparing the map and includes the register prepared, with the  map giving details of land-use.

       Chapter IV of the 1973 Act provides for planning areas and  development plans.  The procedures laid down for finalizing a development  plan has been laid down therein.  Any person aggrieved by any order  granting permission on condition or refusing the same is entitled to prefer an  appeal thereagainst before the appellate authority in terms of Section 30  thereof.  The revisional power in this behalf is vested in the State.   

       Section 49 of the 1973 Act provides for town development schemes.   Registration on land use and land development is provided for under Section

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53 thereof.  Section 58 provides for disposal of land in the following terms:

"58. Disposal of land, buildings and other  development works \026 Subject to such rules as may  be made the State Government in this behalf, the  Town and Country Development Authority shall  by regulation, determine the procedure for the  disposal of developed lands, houses, buildings and  other structures."

       Section 72 of the 1973 Act envisages the State Government’s power  of supervision and control over the acts and proceedings of the officers  appointed under Section 3 and the authorities constituted under the 1973  Act.  Section 73 empowers the State Government to give directions in the  following terms: "73. Power of State Government to give  directions. \026 (1) In the discharge of their duties  the officers 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. (2) If any dispute arises between the State  Government and any authority as to whether a  question is or is not a question of policy, the  decision of the State Government shall be final."

       Section 85 of the 1973 Act provides for rule making power.   

The State of Madhya Pradesh in exercise of its power conferred upon  it under Sections 58 and 85 of the 1973 Act made rules known as "Madhya  Pradesh Nagar Tatha Gram Nivesh Vikasit Bhoomiyo, Griho, Bhavanotatha  Anya Sanrachnaon Ka Vyayan Niyam, 1975".

       Rules 3, 4, 5, 19 and 20 of the 1975 Rules which are material for our  purpose read as under:

"3. No Government land vested in or managed by  the Authority shall be transferred except with the  general or special sanction of the State  Government given in that behalf.

4. All other land (hereinafter called the "Authority  land") shall be transferred in accordance with the  following rules.

5. Transfer of the Authority land shall be as under: a) By direct negotiation with the party; or b) By public auction; or c) By inviting tenders; or d) Under concessional terms.

19. The Authority may with the previous approval  of the State Government lease out on concessional  terms any authority land to any public institution  or body registered under any law for the time  being in force.

20. Ordinarily, no lease on concessional terms  shall be allowed for the purposes of other than  charitable purposes such as for hospital  educational institutions and orphanages."

       The State in terms of the provisions of the 1973 Act and the 1975  Rules is a statutory authority.  Its jurisdiction to oversee functions of the

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authorities of the Board as also power to issue directions are circumscribed  by the provisions contained in Sections 72 and 73 of the 1973 Act.

       Concededly, the lands in question was either acquired lands or nazul  lands.  It also stands admitted that in terms of the provisions of Sub-section  (2) of Section 71 of the 1960 Act even the nazul lands stand admittedly  vested in the authority and having regard to the provisions contained in  Section 87(1)(c)(iii) all assets and liability of the Town Improvement Trust  shall belong to and be deemed to be the assets and liabilities of the Town  and Country Development Authority established in place of such Town  Improvement Trust.

       The power of disposal of lands, buildings and other developmental  works indisputably vests in the Town and Country Development Authority  i.e. the JDA.  We have, however, not been informed as to whether any  regulation has been framed by the authority for regulating the procedures for  disposal of developed lands, houses, buildings and other structures.   However, the lands in question is a developed land.  The right to dispose of  such lands, therefore, vests in the JDA.  Such right being subject to the rules  made by the State, we may closely examine the provisions thereof.

       Rule 3 of the 1975 Rules puts an embargo in the power of the JDA to  transfer government land vested in or managed by it except with the general  or special sanction of the State Government given in that behalf.  Rule 4  demonstrates that all other land acquired by the authority become  transferable in accordance with the rules following.  A distinction, thus, has  been made between a government land and the authority land.  The rules  following Rule 4 refer to the authority lands as contradistinguished from the  government land.  Rule 5 again categorically refers to the authority land in  terms whereof transfer on concessional terms is permissible.  Rule 19  empowers the authority to lease out on concessional terms any authority land  to any public institution or body registered under any law for the time being  in force.  Rule 20, however, provides that ordinarily no lease of land on  concessional terms shall be allowed for the purposes other than charitable  purposes such as for hospital, educational institutions and orphanages.   

       The right to transfer land on concessional terms, thus, is subject to two  limitations, viz., (i) approval of the State is required therefor; and (ii) no  lease on concessional terms shall be allowed for purposes other than  charitable purposes such as hospital, educational institutions and  orphanages; which implies that in a given situation a lease may be granted  on concessional terms to any other institution but therefor sufficient and  cogent reasons must be assigned.

       The JDA, therefore, only had requisite authority to initiate the  proceedings for grant of lease of land on concessional terms wherefor only  the previous approval of the State was required to be taken.  The State,  except grant of previous approval to the proposal of the JDA and ultimate  grant of lease of its land on concessional terms, has no other role to play.   Disposal of the authority land is, thus, within the domain of the JDA, subject  only to the previous approval of the State Government.

       The State and the J.D.A. being creatures of the statute were bound to  act within the four-corners thereof.  Procedures for disposal of land having  been laid down in the rules, power in that behalf was required to be  exercised strictly in conformity therewith and de’hors the same.

       The State has formulated a purported policy decision on or about  10.8.1995.  The said policy decision is in relation to the land belonging to  the State situated in the entire State of Madhya Pradesh.  It has been issued  by the Revenue Department and not by the Town and Country Planning  Department.  The said purported policy decision is not a policy decision in  terms of the 1973 Act or the rules framed thereunder.  State, thus, could not  even issue any direction to J.D.A.

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       The Respondent filed an application for allotment of land as far back  as in 1986.  Further applications are said to have been filed on 4.3.1989 and  7.7.1992.  The Respondent filed an application on 7.7.1994 before the Nazul  Officer for allotment of land relying on or on the basis of the purported  policy decision adopted by the State that the land should be allotted to the  said industry.  It is not in dispute that the land within Scheme No. 18 was  reserved for auditorium and cinema hall (for public and semi public  purposes) at city level.  Purported policy by the State was adopted on  10.8.1995 only.  Pursuant to or in furtherance of the said policy decision, a  decision was taken to allot the land on 14.10.1995.  It is only on 21st  November, 1995 the State allotted the land in question in favour of the  private Respondent stating that the land is a government land.

       In para 5.18 of the writ petition, the Appellant averred:

"To the knowledge of the petitioner, the matter of  allotment of land to respondent No. 3 was never  placed before the State Level Committee  constituted vide memo, dated 10.8.1995.  There is  no mention of the same in the memo of allotment  dated 21.11.95.  On the contrary, the said memo  itself mentions that the matter of payment of  premium and ground rent would be decided  subsequently by the Committee.  It is evidently  clear that the State Government by passing its own  guidelines and without referring the matter to the  said State Level Committee constituted vide memo  dated 18.10.95 directed allotment of the land in  question to the respondent No. 3 surreptitiously  without making it public to the detriment of other  similarly situated press owners.  Thus, action of  the respondents No. 1 & 2 in allotting the land to  the respondent No. 3 to the exclusion of others is  absolutely arbitrary illegal and discriminatory and  the same is liable to be struck down."

       In response to the said statements, the State in its counter affidavit  averred:

"The matter was referred to State Level Committee  but the State Level Committee did not entertain the  matter as the land in question was not a Nazul land  and ultimately a decision was taken by the  Government.  There was no need or occasion to  publish public.  One who needed land could  always approach the State Government and the  State Government could decide the application on  merits.  No publicity was needed as suggested."

       Thus, there appears to be some contradiction in the said statement.  If  the land in question was not Nazul land, question of exercising any  jurisdiction thereover by the State in any manner whatsoever, does not arise.

       It is also accepted that the land was allotted for the purpose of  establishing a printing press and publication of newspaper.  It is also curious  to note that despite allotment, the quantum of premium and annual rent was  not fixed.

       Establishment of a printing press would be an ’industry’.  Even  otherwise the said position stands accepted as would appear from the letter  dated 4.1.1996 of the Chairman of the JDA addressed to the Deputy  Secretary, Chief Minister Secretariat which is in the following terms:

"\005The then Chairman (Divisional Commissioner)  vide his letter No. 1173 dated 28.11.95 addressed

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to the Govt. in last para has mentioned that the plot  in question land use of which is public/ semi  public as approved and adopted by Jabalpur  Development Scheme, on which there is a  provision for construction of an auditorium for the  artist of the city level whereas the use of the press  comes under industrial use and this issue has been  raised and under those circumstances the  permission for change of land use and handing  over the advance possession to Dainik Bhaskar  Press.

       On 13.12.95 you had a talk with reference to  said letter with then Chairman (Divisional  Commissioner).  It was said by you that the Civic  Center John premises is for commercial use and at  page 246 of the Development Scheme in table No.  16-T-7 in column No. 5 the press-comes within the  permissible use under collected industries.  In this  regard, a letter from the then Chairman No. 1173  dated 28.11.95 was forwarded to you.  For ready  reference photocopies enclosed herewith.  The  then Secretary public relations dept. Sh. Lakshmi  Narayan told the then Chairman (Divisional  Commissioner) on telephone that the Hon’ble  Chief Minister has directed to send the proposal  for allotment of this land to Dainik Bhaskar Press."

                                       [Emphasis supplied]

       Yet again by a letter dated 13.12.1995 while directing that the  quantum of premium and rent would be determined by a permanent  committee, it was stated:

"This lease will be executed in the name of  Bishambar Dayal Aggrawal on the basis of legal  entity of Dainik Bhaskar Press, Jabalpur after the  decision of the standing committee constituted by  the State Govt. This term and condition will be  operative on advance possession as well.

Development permission for advance possession  shall have to be obtained within two months period  from the Joint Director Nagar Tatha Gram Nivesh,  Jabalpur.  Prior to obtaining this development  permission and Govt. permission no development  work will be commenced by you on the concerned  land."

       From the circular letter dated 1.3.1996, it is manifest that even on  1.3.1996, the quantum of premium and rent had not been fixed.  It is only on  21st September, 1998, the decision of the State was communicated to JDA  stating:

"The Govt. of Madhya Pradesh has taken decision  that the assessment of the premium for 20,000 sq.  ft. land situated at Scheme No. 18 Civil Centre  owned by Jabalpur Development Authority  allotted by the order dated 30.12.95 passed by the  Govt. of Madhya Pradesh to Dainik Bhaskar Press  Jabalpur is to be made by extending concession of  50% rate of the market value of the land in the  area.  This amount will have to be deposited by  Dainik Bhaskar Press at one time."

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       The authority by its letter dated 15.12.1998 fixed the value of the land  at the rate of Rs. 255/- per sq. ft. on the basis of the then guidelines treating  the rate for the allotted land for the financial year 1994-1995 treating it as  industry.  It is beyond anybody’s comprehension as to how the value of the  land could be fixed on the basis of the rate as was prevailing in the financial  year 1994-95 although decision to allot the land was taken in the year 1998.   The allotment having been made for unauthorized suffers from the vice of  malice in law.

       So far allotment of land in favour of YMCA is concerned, we may  notice that the Revenue Department had also issued a circular dated  31.5.1996 wherein it was stated:

"Various castes based, Social Institutions from  time to time apply for land allotment at  concessional rate to the Government.  Thus, the  State Government after complete deliberation has  taken this decision that the institutions will be  allotted plots for social purposes on the following  rebate and ground rent:-

(1)     ***     *** (2)     ***     *** (3)     ***     *** (4)     ***     *** (5)     Each society will only be allotted a  maximum of 5000 sq. feet of land at concessional  rate."

       The said circular also could not have been issued in terms of the 1973  Act.  Even otherwise, not more than 5000 sq. ft. of land could have been  allotted thereunder.  The impugned order, thus, ex facie suffers from total  non-application of mind on the part of the authorities of the JDA and the  State.  The State moreover has acted beyond its authority.   

       We have noticed hereinbefore that the State itself opined that the land  in question is ’Authority Land’.  It, therefore, could not do what is within the  domain of the JDA.

       Purpose for which allotments were made may be well-meaning, but  the allotments being contrary to the provisions of the Act and the Rules were  void and of no effect being illegal.

       So far as allotment of land is concerned, the purpose for which the  same is allotted would be wholly irrelevant if it contravenes the mandatory  provisions of the statute or the statutory rule.

       Mr. Tankha relied on Oil and Natural Gas Commission v Association  of Natural Gas Consuming Industries of Gujarat and Others [1990 (Supp)  SCC 397] wherein dictionary meaning of ’public utility’ has been stated as  under:

"Public Utility: A privately owned and operated  business whose services are so essential to the  general public as to justify the grant of special  franchises for the use of public property or of the  right of eminent domain, in consideration of which  the owners must serve all persons who apply,  without discrimination. It is always a virtual  monopoly.", does not answer the case of the  Respondents.

       Submission of Mr. Tankha to the effect that having regard to the  concept of freedom of press, the newspaper industry should be considered to

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be a public utility in view of the decision of this Court in Oil and Natural  Gas Commission (supra) cannot be accepted.  Public utility has a definite  connotation.  Publication of a newspaper does not come within the purview  of public utility services.    

       It may be true that newspaper industry has a great role to play in  spreading political education and giving of ideas as has been held in Bennett  Coleman & Co. and Others v Union of India and Others [(1972) 2 SCC 788]  (followed in Indian Express Newspapers (Bombay Private Ltd. and Others v  Union of India and Others, (1985) 1 SCC 641), but that would not mean that  it would be entitled to allotment of land in contravention of a Town Planning  Act.

       If any preference is to be given to any public utility service, a policy  decision therefor was required to be adopted by the J.D.A. if permissible  under the statute and not otherwise.  Even the State may not have a role to  play in the matter under the Act  General policy decision adopted by the  State in absence of a provision of the statute, cannot ipso facto be held to be  applicable to J.D.A.           This aspect of the matter has recently been considered in Bangalore  Development Authority and Others v R. Hanumaiah & Others [2005 (8)  SCALE 80] wherein it was noticed:

"Recently in Hindustan Petroleum Corpn. Ltd. Vs.  Darius Shapur Chenai & Ors. [2005 (7) SCALE  386], this Court noticed:

"       In  Commissioner of Police, Bombay vs.  Gordhandas Bhanji [AIR 1952 SC 16], it is stated :

"\005We are clear that public orders, publicly made,  in exercise of a statutory authority cannot be  construed in the light of explanations subsequently  given by the officer making the order of what he  meant, or of what was in his mind; or what he  intended to do.  Public orders made by public  authorities are meant to have public effect and are  intended to affect the actings and conduct of those  to whom they are addressed and must be construed  objectively with reference to the language used in  the order itself."  

       Yet again in Mohinder Singh Gill (supra),  this Court observed  :

"The second equally relevant matter is that when a  statutory functionary makes an order based on  certain grounds, its validity must be judged by the  reasons so mentioned and cannot be supplemented  by fresh reasons in the shape of affidavit or  otherwise. Otherwise, an order bad in the  beginning may, by the time it comes to court on  account of a challenge, get validated by additional  grounds later brought out. We may here draw  attention to the observations of Bose, J. in  Gordhandas Bhanji."         Referring to Gordhandas Bhanji (supra),  it  was further observed : "Orders are not like old wine becoming better as  they grow older."

       [The said decisions have been followed by  this Court in Bahadursinh Lakhubhai Gohil Vs.  Jagdishbhai M. Kamalia and Others [(2004) 2 SCC

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65]."

       Both the State and the JDA have been assigned specific functions  under the statute.  The JDA was constituted for a specific purpose.  It could  not take action contrary  to the scheme framed by it nor take any action  which could defeat such purpose.  The State could not have interfered with  the day to day functioning of a statutory authority.  Section 72 of the 1973  Act authorizes the State to exercise superintendence and control over the  acts and proceedings of the officers appointed under Section 3 and the  authorities constituted under the Act but thereby the State cannot usurp the  jurisdiction of the Board itself.  The Act does not contemplate any  independent function by the State except as specifically provided therein.   

       The Development Plan was prepared in terms of the 1973 Act and the  rules framed thereunder.  Change of user, we have not been shown, is  permissible under the Act or the Rules.  In absence of such a provision and/  or without following the statutory requirements therefor, if any, the State in  exercise of its executive power could not have directed that lands meant for  use for commercial purposes may be used for industrial purposes.  

       In Friends Colony Development Committee v. State of Orissa and  Others [(2004) 8 SCC 733], this Court observed:

"In all developed and developing countries there is  emphasis on planned development of cities which  is sought to be achieved by zoning, planning and  regulating building construction activity. Such  planning, though highly complex, is a matter based  on scientific research, study and experience  leading to rationalisation of laws by way of  legislative enactments and rules and regulations  framed thereunder. Zoning and planning do result  in hardship to individual property owners as their  freedom to use their property in the way they like,  is subjected to regulation and control. The private  owners are to some extent prevented from making  the most profitable use of their property. But for  this reason alone the controlling regulations cannot  be termed as arbitrary or unreasonable. The private  interest stands subordinated to the public good. It  can be stated in a way that power to plan  development of city and to regulate the building  activity therein flows from the police power of the  State. The exercise of such governmental power is  justified on account of it being reasonably  necessary for the public health, safety, morals or  general welfare and ecological considerations;  though an unnecessary or unreasonable  intermeddling with the private ownership of the  property may not be justified."

       Furthermore, in terms of Section 73 of the 1973 Act, the power of the  State Government to issue direction to the officers appended under Section 3  and the authorities constituted under the Act is confined only to matters of  policy and not any other.  Such matters of policy yet again must be in  relation to discharge of duties by the officers of the authority and not in  derogation thereof.

       The State has no power to issue any general direction.  The State has  furthermore no power to interfere with the day to day functioning of the  JDA.  Any such direction by the State to the officers must be in discharge of

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their duties in terms of the provisions of the Act and not otherwise.  The  direction of the Chief Minister being de’hors the provisions of the Act is  void and of no effect.   

       The purported policy decision adopted by the State as regards  allotment of land to the newspaper industries or other societies was not a  decision taken by the appropriate Ministry.  If a direction was to be issued  by the State to the JDA, it was necessary to be done on proper application of  mind by the cabinet, the concerned Minister or by an authority who is  empowered in that behalf in terms of the Rules of the Executive Business  framed under Article 166 of the Constitution of India.  Such a direction  could not have been issued at the instance of the Chief Minister or at the  instance of any other officer alone unless it is shown that they had such  authority in terms of the Rules of the Executive Business of the State.  We  have not been shown that the Chief Minister was the appropriate authority to  take a decision in this behalf.  We have noticed hereinbefore that the  purported policy decision is in respect of the lands belonging to the State and  not those belonging to the J.D.A.  The said policy decision applies to the  entire State of Madhya Pradesh.  It is not appreciable in relation to such  lands which come within the purview of any Scheme framed under the Act.   It was issued by the Revenue Department under Revenue Book Circular  Four-1.  Evidently therefor not decision has been taken by the State in terms  of the provisions of the 1960 Act or the 1973 Act.  The concerned Ministry  was Ministry of Housing and Environment.  The jurisdiction of the State  while exercising the power to issue direction in this behalf is extremely  limited as has been noticed by this Court in Rakesh Ranjan Verma and  Others v. State of Bihar and Others [1992 Supp (2) SCC 343 at 348], U.P.  State Electricity Board v. Ram Autar and Another [(1996) 8 SCC 506],  Bangalore Development Authority (supra), para 55 and State of U.P. v.  Neeraj Awasthi [2005 (10) SCALE 286].

       The Private Respondents herein complain of discrimination on the  ground that persons similarly situated have been allotted land at a  concessional rate but therefore no factual foundation had been laid.  When  allotment is illegal, Article 14 which carries with it a positive concept would  have no application. [See Jalandhar Improvement Trust v. Sampuran Singh  (1999) 3 SCC 494, para 13 and State of Bihar and Others v. Kameshwar  Prasad Singh and another, (2000) 9 SCC 94, para 30]

       In the case of YMCA also, allotment has been directed to be made by  the State.  It may be that ultimately allotment was made by the JDA.  But if  the State had no role to play in the matter, even advice given by it would be  ultra vires.   

       The State, as noticed hereinbefore, could not implement its purported  policy decision as regard allotment of land on concessional rates.  Such a  direction or even a policy decision in this behalf is ultra vires being contrary  to the statutory rules framed by it.  An action by way of policy decision or  otherwise at the hands of a statutory authority must be in consonance with  the statutory rules and no de’hors the same.   

       It is difficult to accept the submission of Mr. Chaudari that the orders  impugned in the writ petition were not vitiated as the same was not arbitrary  or mala fide.  Malice may either be on fact or in law.  Passing of an order for  unauthorized purpose constitutes malice in law. [See Punjab State Electricity  Board Ltd. v. Zora Singh and Others, (2005) 6 SCC 776 and U.O.I.  the  Govt. of Pondicherry & Anr. Vs. V. Ramakrishna & Ors., JT 2005 (9) SC  422].

       Furthermore, when the State has framed rules and adopted a  procedure for disposal of the land, both the State and the JDA were  bound  thereby.  They could not have taken any action contrary thereto or  inconsistent therewith.

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       Both the State and the JDA had evidently been acting under some  misconception.  The Board was of the opinion that in relation to nazul land,  the State is the final authority to allot land as the power of sanction lies  within its domain.  We have noticed hereinbefore that the State did not have  any such power.  The State, even in terms of Rule 3 of 1975 Rules has a  limited role to play.  

However, there are certain subsequent events which should be taken  note of.  Whereas the impugned order in the civil appeal arising out of SLP  (C) No. 12442 of 2003 was passed on 21.8.2002, the SLP was filed on  7.5.2003.  During pendency of the matter, the JDA had issued a circular on  4.6.2003 to the Private Respondent herein asking him to deposit a sum of  Rs. 26 lakhs.  The said amount is said to have been deposited on 7.6.2003  whereupon a deed of lease has also been executed.   

       It is stated that the Municipal Corporation granted permission for  construction of the building on or about 30.7.2004 subject to the conditions  mentioned therein.  A notice was issued on 11.7.2003 by this Court.  It is  stated that the Private Respondent has sent invoices for machines worth Rs.  2 crores for which a sum of RS. 10 lakhs have been paid by way of advance.   Submission of Mr. Tankha, in the aforementioned situation, is that the  equities between the parties should be adjusted.  

We have noticed hereinbefore that on 11.7.2003 notice was issued in  the matter.  The counsel for Respondent was present on the said date.  An  order of status quo was present on the said date. The Respondent, therefore,  had notice about the pendency o the special leave petition.  It might have  applied for and granted the permission for construction of building but we  find no reason as to how without constructing any building, orders for  delivery of machines should have been issued.  It is not the case of the  Private Respondent that they had started construction pursuant to or in  furtherance of the permission granted in this behalf by Municipal  Corporation of Jabalpur.  

       The Appellant has brought to the notice of the High Court that a  malady has been prevailing in the department of the State of Madhya  Pradesh and the JDA.  It may be true that the Appellant did not file any  application questioning similar allotments but it is well-settled if an illegality  is brought to the notice of the court, it can in certain situations exercise its  power of judicial review suo motu (See Sham Lal (dead) by Lrs. vs. Atme  Nand Jain Sabha (Regd.), Dal Bazar (1987) 1 SCC 222 , Chairman & MD,  BPL Ltd. Vs. S.P. Gururaja & Ors. Vs (2003) 8 SCC 567 and Guruvayoor  Devaswom Managing Committee & Anr. Vs. C. K. Rajan & Ors. (2003) 7  SCC 546).  It is also well-settled that the equality clause contained in Article  14 of the Constitution of India cannot be invoked for perpetrating an  illegality.  

       For the reasons aforementioned, the impugned judgments of the High  Court cannot be sustained, but, having regard to the facts and circumstances  of this case, we are of the opinion that the interest of justice would be  subserved if the question as regards allotment of land is left to the Jabalpur  Development Authority.  The Authority may consider the matter afresh for  grant of such allotment in favour of the Private Respondents herein treating  the applications filed by them either before it or before the State  Government as fresh applications.  Such applications must be processed  strictly in terms of the provisions of the 1973 Act and the Rules framed  thereunder as also keeping in view the Master Plan.  Such a decision should  be taken by the Competent Authority of the JDA at an early date preferably  within a period of two months from the date of receipt of the copy of this  order.  The JDA shall return the amount deposited by the Private  Respondents, if any, within four weeks from date.

       These appeals are allowed to the aforementioned extent but in the  facts and circumstances of this case there shall be no order as to costs.