Calcutta High Court: Opining that “process of applying the pick and choose a policy and making allotments at the whims and fancies of the persons in power continued in the State” Division Bench of Rajesh Bindal, CJ and Arijit Banerjee, J., remarked that,
“It is a fact that Sourav Ganguly has brought laurels for the country in Cricket. But when it comes to law, our Constitutional Scheme is that all are equal and no one can claim to be exclusive, above the law and seek benefits from the State, especially when question arises for allotment of plots for commercial venues.”
What transpired the present matter?
Instant petition was filed in the public interest to challenge allotment of a plot by HIDCO which was done in violation of rules, regulations and policies provided for allotment of plots.
The said allotment was made to respondents 9 and 10. Petition was filed in the year 2016 and was pending since then.
When the matter was taken up for hearing, respondents counsel and counsel for HIDCO submitted that respondents 9 and 10 had surrendered the plot and the amount deposited by them was refunded.
To the above position, petitioners counsel submitted that ‘there is no respect for law in the State of West Bengal.
Further, the counsel stated that in the earlier round of litigation illegal allotment of plot was made to Sourav Ganguly, the respondent 9. The matter was escalated to Supreme Court and vide the Supreme Court decision in Humanity v. State of W.B., (2011) 6 SCC 125, illegal allotment of a plot in a similar fashion in favour of respondent 9 was set aside.
After the above, Sourav Ganguly made a request to the Chief Minister of West Bengal for allotment of a plot and the same allotted to him violating all Rules and Regulations.
In case this allotment was not challenged by the petitioners in this Court, respondent 9 would have enjoyed bounty given by the State/ State Authority. He waited for a period of five years to surrender the allotment.
Favouritism was writ large as even the lease premium payable by Sourav Ganguly was reduced from 10.98 crores to 5.27 crores. Subsequent thereto a lease deed was executed in favour of Sourav Ganguly by HIDCO.
Analysis, Law and Decision
Challenge was made on the ground that no advertisement was issued for allotment of the plot in favour of allottee and allotment of a new plot was made even before the earlier was surrendered.
What did the Supreme Court decide?
Supreme Court in its decision held that allotment made in favour of the allottee was illegal and the action of the government was held to be illegal and arbitrary as it failed to satisfy the test of reasonableness and public interest. Supreme Court also found that before allotting the plot of a different identity and larger area, no advertisement was issued and the public was not permitted to participate. The stand taken by the State that the same should be considered in pursuance of the advertisement already issued as the State had right to change the location and size of the plot, was rejected.
Supreme Court further held that in terms of the norms laid down by ‘ICSE’ for recognition/affiliation, the school should be run by a registered society/trust for educational purposes, which is not run for profit. The society therein, namely, Ganguly Education and Welfare Society, which is respondent No.10 in the present petition, was not found to be a public trust as five of the members of the society were found to be family members staying at one address and one was the close relation and the seventh was the chartered accountant. It was further observed that the allottee may be a well-known sportsman but did not claim any expertise as an educationist.
The object of the Land Allotment Policy was to bring uniformity and reduce discretion. Transparency in decision-making process while dealing with public assets was another object.
Policy is meant to be applicable for allotment of land and other assets of the Government and all its parastatals.
Bench noted that respondent 9 had good access to the corridors of power, which was writ large from the facts of the case. He requested for allotment of plot for building of school and nowhere in that communication it was said that the plot was being applied for to be allotted to any charitable institution. Rather it was evident that the plot was meant to be used for plain and simple commercial venture.
Further, the Court noted that,
HIDCO requested him to apprise the corporation as to whether he wants allotment of a plot in his own name or in the name of any trust. It shows that the bonafides were not examined before taking up the matter either by the State Cabinet or by the Board of Directors of HIDCO. They with closed eyes had decided to allot a plot as if it was not a State property but a private limited company which was permitted to deal with its property, as per its own wish without following due process of law.
High Court remarked that,
“There is no good reason on record as to why Land Allotment Policy was violated.”
Another striking point was that, HIDCO on request of Sourav Ganguly reduced the premium amount along with change of location of plot as the one allotted to him was not suitable for setting up of school.
Hence, the above noted facts clearly show that respondent 9 was in position to dictate his terms, as if it was not a case where State was dealing with its property, where fair and transparent procedure was required to be followed. Rather it was a case wherein respondent 9 was able to play with the system.
“Such an action of the government or its instrumentalities does not inspire confidence of the people. They also try to use unfair means to take similar benefits knowing well that in case the law can be broken for one person, the same system can be followed for the others as well.”
Following the above, Court also noted the fact that no steps were taken by respondent 9 and 10 to execute the project as if the idea was only to grab a plot at throwaway prces.
Whereas, as per Clause A(iv) of the lease deed, lessee had to commence construction within 6 months from the date of delivery of possession and complete the same and fully commission the proposed project within a period of 36 months.
Time is stated to be the essence of the contract.
Despite the non-execution of the project, which in fact was a non-starter till the surrender of the plot by respondents 9 and 10 in August 2020, the HIDCO did not take any action against respondents 9 and 10 for cancellation of lease as they had failed to comply with the terms.
Earlier Decisions on the issue of ‘Illegal Allotments’
In Tarak Singh v. Jyoti Basu, 1999 SCC OnLine Cal 29, Court considered the issue of illegal allotment and observed that where arbitrary allotment of plots in Salt Lake City by the Minister-in-Charge at his own whims and fancies, was the subject matter of dispute. Plots in that case were also allotted without any advertisement. In this case as well, the then Chief Minister had thought that the public property was his own private property and he could allot the same to anyone at his whims and fancies.
The above decision was the subject matter of consideration before Supreme Court in Tarak Singh v. Jyoti Basu, (2005) 1 SCC 201,
Allotment of plot in favour of a Judge of this Court by the then Chief Minister was quashed. As the learned Single Judge had not quashed the allotment, the allottee being not a party before the Court, an application was filed before the Hon’ble the Supreme Court to implead Justice B.P. Banerjee (Retd.) as party respondent. The same was allowed and with strong observations made against the allotments made by the Chief Minister from his discretionary quota, after hearing the learned Counsel for Justice B.P. Banerjee (Retd.), the Hon’ble the Supreme Court had set aside the allotment of plot in his favour.
In Joydeep Mukherjee v. State of W.B., (2011) 2 SCC 706, Supreme Court had refused to reopen the issue regarding discretionary allotment of plots by the then Chief Minister which had already been settled by the decisions of either this Court or the Supreme Court. However, an affidavit filed by the State was taken note of which stated that the State Government had taken a conscious decision not to make further allotments under the discretionary quota for the left out plots.
Supreme Court covered the said issue in Akhil Bharatiya Upbhokta Congress v. State of M.P., (2011) 5 SCC 29, wherein the Court was called upon to consider allotment of a plot without issuing advertisement or adopting a procedure consistent with the doctrine of equality so as to enable other similar organisations/institutions to participate in the process of allotment.
Further, in the above decision, it was opined that,
“…the State and/or its agencies/instrumentalities cannot give largesse to any person according to the sweet will and whims of the political entities. Transparent method is to be followed in terms of a well defined policy. There cannot be any policy for allotment of any plot on an application made by an individual without issuing any advertisement. The State can allot plots to the institutions engaged in education or other activities except by way of auction. Once a piece of land is identified for the purpose, the exercise of allotment must be done in a manner consistent with the doctrine of equality. The same can be after issuing advertisement and allowing all eligible candidates to participate in the process. Finally, allotment of plot in favour of the allottee was quashed.”
High Court held that the allotment of plot to respondent 9 was done in a totally arbitrary manner, present case is the one where rules, regulation and law laid down by the Supreme Court and this Court has been given complete go-bye at the whims and fancies of persons in charge.
No one ever raises a finger when the Government showers awards and benefits to the sportspersons, when they win any tournament, but this system is not to continue in perpetuity.
If Sourav Ganguly is interested in development of sports especially cricket, in which he has many achievements to his credit, there may be already many State sports establishments, he can associate himself with them and motivate budding cricketers.
High Court imposed a Cost of Rs 50,000 each on State and HIDCO and a token cost of Rs 10,000 on respondents 9 and 10 for the reason that they should have acted in accordance with the law.
In case arbitrary power still continues, persons exercising such powers, may be held personally responsible.
Concurring Opinion of Arijit Banerjee, J.
“…distribution of State largesse must be undertaken in a completely transparent manner and strictly adhering to the applicable rules and regulations, if any.”
Further, he stated that if the State intends to allot land to private parties for the purpose of being used commercially, against payment of lease rent/licence fee to the Government, the same has to be done openly by a tender process, inviting offers from interested parties and accepting the highest offer subject to such offer being in accordance with the law of the land.
State holds landed property in Trust and for the ultimate benefit of the citizens of the State in general and no one party can be permitted to reap special benefit from such property at the expense of the interest of the people at large.
[Humanity, Salt Lake v. State of W.B., 2021 SCC OnLine Cal 2610, decided on 27-09-2021]
Advocates before the Court:
For the Petitioners: Anindya Lahiri, Samrat Dey Paul, Advocates (tHROUGH vc)
For the WBHIDCO: Jishnu Chowdhury, Advocate (Present in Court) Sandip Dasgupta, Chayan Gupta and Ayan De, Advocates (Through VC)
For the Respondents 9 and 10: Amitava Mitra, Advocate (Through VC)
Sumita Shaw and Sayani Bhattacharya, Advocates (Present in Court)