# 5 S.C.R. 77 AKHIL BHARTIYA UPBHOKTA CONGRESS v. STATE OF MADHYA PRADESH AND ORS

- **Citation:** [2011] 5 S.C.R. 77
- **Court:** Supreme Court of India
- **Decided:** 2011-04-06
- **Case number:** Civil Appeal No. 2965 of 2011
- **Bench:** G.S. Singhvi, Asok Kumar Ganguly
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/5-s-c-r-77-akhil-bhartiya-upbhokta-congress-v-state-of-madhya-pradesh-and-ors-27682
- **Pages:** 65

## Headnote

Constitution of India, 1950:
Article 14 - Principle of equality - Exercise of power by C
political entities and officers/officials - Scope of - Held: For
achieving the goals of Justice and Equality set out in the
Preamble, the State and its agencies/instrumentalities have
to function through political entities and officers/officials at
different levels - The exercise of power by political entities and D
officers/officials for providing different kinds of services and
benefits to the people always has an element of discretion,
which is required to be used in larger public interest and for
public good and in a rational and judicious manner without
any discrimination against anyone - In Indian constitutional E
structure, no functionary of the State or public authority has
an absolute or unfettered discretion -
The very idea of
unfettered discretion is totally incompatible with the doctrine
of equality enshrined in the Constitution and is an antithesis
to the concept of rule of law - Administrative law.
Part Ill; IV; Article 39(b) - Role of the State - Discussed.
F
Administrative law: State and/or its agencies!
instrumentalities - Action/decision of, to give largesse or
confer benefit on any person - Held: Must be founded on a G
sound, transparent, discernible and well defined policy, which
shall be made known to the public by publication in the Official
Gazette and other recognized modes of publicity and such
policy must be implemented/executed by adopting a non77
H
78
SUPREME COURT REPORTS
[2011] 5 S.C.R.
A
discriminatory or non-arbitrary method irrespective of the class
or category of persons proposed to be benefitted by the policy
- Distribution of largesse such as allotment of land by the
State and its agencies/instrumentalities should always be
done in a fair and equitable manner and the element of
s favoritism or nepotism should not influence the exercise of
discretion, if any, conferred upon the particular functionary or
officer of the State - By entertaining applications made by
individuals, organisations or institutions for allotment of land
or for grant of any other type of largesse, the State cannot
c exclude other eligible persons from lodging competing claim
- The competent authority should, as a matter of course, issue
an advertisement incorporating therein the conditions of
eligibility so as to enable all similarly situated eligible
persons, institutions/organisations to participate in the process
0
of allotment, whether by way of auction or otherwise - The
allotment of land which carry the tag of caste, community or
religion is not only contrary to the idea of Secular Democratic
Republic but is also fraught with grave danger of dividing the
society on caste or communal lines - The allotment of land
E
to such bodies/organisations/institutions on political
considerations or by way of favoritism or nepotism is
constitutionally impermissible -
In the instant case,
reservation and allotment of land to respondent no.5 was not
preceded by any advertisement in the newspaper or by any
other recognized mode of publicity inviting applications from
F
organizations/institutions for allotment of land and everything
was done by the political and non-political functionaries of the
State as if they were under a legal obligation to allot land to
respondent No.5 - The advertisements issued by the State
functionaries were only for inviting objections against the
G proposed reservation and/or allotment of land in favour of
respondent no.5 and not for participation in the process of
allotment - Therefore, allotment of land to respondent No.5
was not done by following a procedure consistent with Arlicle
14 of the Constitution.
H
AKHIL BHARTIYA UPBHOKTA CONGRESS v. STATE
79
OF MADHYA PRADESH AND ORS.
Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam,
A
1973:
Object of its enactment - Discussed.
s.23-A - Development Plan - Modification of - Whether
notifications by which the Bhopal Development Plan was 8
modified and land use was .changed

## Text

_Characters 0–39,993 of 129,252. This is a partial read: ask again with offset=39993 for what follows._

[2011) 5 S.C.R. 77
AKHIL BHARTIYA UPBHOKTA CONGRESS
A
v.
STATE OF MADHYA PRADESH AND ORS.
(Civil Appeal No. 2965 of 2011)
APRIL 6, 2011
B
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]
Constitution of India, 1950:
Article 14 - Principle of equality - Exercise of power by C
political entities and officers/officials - Scope of - Held: For
achieving the goals of Justice and Equality set out in the
Preamble, the State and its agencies/instrumentalities have
to function through political entities and officers/officials at
different levels - The exercise of power by political entities and D
officers/officials for providing different kinds of services and
benefits to the people always has an element of discretion,
which is required to be used in larger public interest and for
public good and in a rational and judicious manner without
any discrimination against anyone - In Indian constitutional E
structure, no functionary of the State or public authority has
an absolute or unfettered discretion -
The very idea of
unfettered discretion is totally incompatible with the doctrine
of equality enshrined in the Constitution and is an antithesis
to the concept of rule of law - Administrative law.
Part Ill; IV; Article 39(b) - Role of the State - Discussed.
F
Administrative law: State and/or its agencies!
instrumentalities - Action/decision of, to give largesse or
confer benefit on any person - Held: Must be founded on a G
sound, transparent, discernible and well defined policy, which
shall be made known to the public by publication in the Official
Gazette and other recognized modes of publicity and such
policy must be implemented/executed by adopting a non77
H
78
SUPREME COURT REPORTS
[2011] 5 S.C.R.
A
discriminatory or non-arbitrary method irrespective of the class
or category of persons proposed to be benefitted by the policy
- Distribution of largesse such as allotment of land by the
State and its agencies/instrumentalities should always be
done in a fair and equitable manner and the element of
s favoritism or nepotism should not influence the exercise of
discretion, if any, conferred upon the particular functionary or
officer of the State - By entertaining applications made by
individuals, organisations or institutions for allotment of land
or for grant of any other type of largesse, the State cannot
c exclude other eligible persons from lodging competing claim
- The competent authority should, as a matter of course, issue
an advertisement incorporating therein the conditions of
eligibility so as to enable all similarly situated eligible
persons, institutions/organisations to participate in the process
0
of allotment, whether by way of auction or otherwise - The
allotment of land which carry the tag of caste, community or
religion is not only contrary to the idea of Secular Democratic
Republic but is also fraught with grave danger of dividing the
society on caste or communal lines - The allotment of land
E
to such bodies/organisations/institutions on political
considerations or by way of favoritism or nepotism is
constitutionally impermissible -
In the instant case,
reservation and allotment of land to respondent no.5 was not
preceded by any advertisement in the newspaper or by any
other recognized mode of publicity inviting applications from
F
organizations/institutions for allotment of land and everything
was done by the political and non-political functionaries of the
State as if they were under a legal obligation to allot land to
respondent No.5 - The advertisements issued by the State
functionaries were only for inviting objections against the
G proposed reservation and/or allotment of land in favour of
respondent no.5 and not for participation in the process of
allotment - Therefore, allotment of land to respondent No.5
was not done by following a procedure consistent with Arlicle
14 of the Constitution.
H
AKHIL BHARTIYA UPBHOKTA CONGRESS v. STATE
79
OF MADHYA PRADESH AND ORS.
Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam,
A
1973:
Object of its enactment - Discussed.
s.23-A - Development Plan - Modification of - Whether
notifications by which the Bhopal Development Plan was 8
modified and land use was .changed were ultra vires the
provisions of s. 23-A - Held: The power of modification of
development plan can be exercised only for specified
purposes- In terms of s.23-A(1)(a), the development plan can
be modified by the State Government either suo motu or at C
the request of the Authority for any proposed project of the
Government of India or the State Government and its
enterprises or for any proposed project relating to
development of the State or for implementing a scheme of
the Authority- In the instant case, in the Bhopal Development D
plan, the use of land which was reserved and allotted to
respondent No. 5 was shown as public and semi-public
(health) - State Government modified the plan by invoking
s.23-A(1)(a) for facilitating establishment of an institute by
respondent No. 5 - The exercise undertaken for the change E
of land use, which resulted in modification of the development
plan was an empty formality because land was allotted to
respondent No. 5 almost two years prior to the issue of
notification u/s. 23"'"'A (1 )(a) and the objects for which
respondent No. 5 was registered as a trust had no nexus with
F
the purpose for which modification of development plan could
be effected under that section - Therefore, modification of the
development plan was ultra vires the provisions of s.23A(1)(a) - Urban development.
Madhya Pradesh Revenue Book Circular: Unregistered G
societies and private trusts are not eligible for allotment of
land.
Writ petition: Locus standi - Held: Even if a person files
H
80
SUPREME COURT REPORTS
[2011] 5 S.C.R.
A
a writ petition for vindication of his private interest but raises
question of public importance involving exercise of power by
men in authority then it is the duty of the Court to enquire into
the matter.
8
On 18.6.2004, one 'KJ' made a written request to the
Principal Secretary, Housing describing himself as a
Convenor of a Memorial Trust for reservation of 30 acres
land comprised in village Bawadiya Kalan, in favour of
the Memorial Trust to enable it to establish an All India
C Training Institute. Although said letter was addressed to
the Principal Secretary, Housing, the same was handed
over to the then Minister of Housing who forwarded it to
the Principal Secretary, Housing for immediate action.
Subsequently, 'KJ' applied for registration of the trust in
the name of respondent No. 5. The certificate of
D registration was issued on 24.12.2004. In the meanwhile,
'KJ' sent letter dated 11.8.2004 to the Principal Secretary,
Housing wherein he described himself as the Managing
Trustee of respondent No.5 and submitted fresh proposal
for reservation of 30 acres land out of Khasra Nos.82/1
E
and 83 of village Bawadiya Kalan in favour of respondent
No.5.
The Director, Town Planning (Respondent No.3)
informed the Principal Secretary, Housing stating that in
F
the Bhopal Development Plan, 2005, land comprised in
Khasra No.82 of Bawadiya Kalan village was earmarked
for public and semi-public (health) purpose and land
comprised in Khasra No.83 was earmarked for residential
purpose and if land was to be allotted to the Memorial
Trust, then the earlier land use would be required to be
G cancelled. However, without effecting change of land use
by following the procedure prescribed under the Act, the
State Government issued order reserving 30 acres land
comprised in Khasra Nos. 82/1 and 83 of village
Bawadiya Kalan in favour of the Memorial Trust.
H
AKHIL BHARTIYA UPBHOKTA CONGRESS v. STATE
81
OF MADHYA PRADESH AND ORS.
In view of the directive issued by the State
A
Government , Tehsildar, Capital Project (Nazul) issued
advertisement dated 4.10.2004 and invited objections
against the proposed allotment to the Memorial Tru~t. The
same was published in newspaper. However just after
two days, the Collector (respondent No.4) submitted
proposal for allotment of 30 acres land to the Memorial
Trust wherein it clearly indicated that the land fell within
B
the limits of Bhopal Municipal Corporation and, as such,
in terms of Chapter IV-1 of the Madhya Pradesh Revenue
Book Circular (RBC), the same should not be allotted at c
a price less than the minimum price. He also indicated
that price of the land would be Rs.7,84,8000/-, of which
10 per cent should be deposited as a condition for
allotment. After 2Yz months, respondent No. 4 sent letter
to the Additional Secretary, Revenue Department D
informing about non-deposit of 10 per cent of the
premium by the Memorial Trust. On coming to know about
E
the said communications, 'KJ' sent letters to respondent
No. 4 and Secretary, Revenue Department respectively
assuring that the premium would be deposited
immediately after the allotment of land. After about 8
months of the submission of proposal for allotment of
land to the Memorial Trust, 'KJ' sent letter to respondent
No. 4 mentioning therein that the institute would require
only 20 acres land. Thereupon, Nazul Officer sent letter
informing 'KJ' that the premium of 20 acres land would
F
be Rs.5,22, 72,000/- and 10 per cent thereof i.e.
Rs.52,27,200/- should be deposited as earnest money.
However, the deposit of only Rs. 25,00,000/- was made
on behalf of respondent No. 5. For next about seven
months, the matter remained under correspondence G
between different departments of the State Government.
During the interregnum, the Minister of Housing became
Chief Minister of the State. On 24.10.2005, Chief Minister
of the State directed that matter relating to allotment of
H
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SUF~EME COURT REPORTS
(2011) 5 S.C.R.
A land to respondent No.5 be put up in the next meeting of
the Cabinet scheduled to be held on 26.10.2005. On the
same day, Secretary, Revenue Department submitted a
detailed note and suggested that keeping in view the
limited resources available with the State Government,
B land should be auctioned so that the administration may
garner maximum revenue. His suggestion was not
accepted by the Council of Ministers, which decided to
allot 20 acres land in the name of the Memorial Trust at
the rate of Rs.40 lakhs per hectare. The decision of the
c State Government was communicated to respondent No.
4. As a sequel to the allotment of land, Nazul Officer
called upon 'KJ' to deposit Rs. 55,94,000/-. However,
instead of depositing the amount 'KJ' addressed letter to
the Revenue Minister with the request that the premium
0 may be waived because the Institute was being
established in public interest and would be training the
elected representatives and undertaking research on
important issues and it would have no source of income.
The political set up of the State Government readily
E obliged him inasmuch as the issue was considered in the
meeting of Council of Ministers held and it was decided
that the amount of Rs. 25,00,000/- may be treated as the
total premium and land be given to the Memorial Trust by
charging annual lease rent of Re.1 only. Subsequently,
on a representation made by 'KJ', earlier orders/
F communications were amended and the name of
respondent No. 5 was inserted in place of the Memorial
Trust. Thereafter, lease agreement was executed between
the State Government and Secretary of respondent No.5
in respect of 20 acres land for a period ending on
G 05.12.2037 at a premium of Rs. 25,00,000/- and an yearly
rent of Re.1. Since the use of land comprised in Khasra
Nos. 82/1 and 83 of village Bawadiya Kala was shown in
the Bhopal Development Plan as public and semi-public
{health) and the same could not have been utilized for the
H
AKHIL BHARTIYA UPBHOKTA CONGRESS v. STATE
83
OF MADHYA PRADESH AND ORS.
purpose of respondent No. 5, the State Government A
issued notification dated 6.6.2008 under Section 23A(1 ){a). of the Act proposing change of land use from
public and semi-public (health) to public and semi public
and invited objections/suggestions. The notification was
published in the Official Gazette and two newspapers.
B
Objections were filed by various persons against the
proposed change of land use which were held untenable
after giving opportunity of hearing. Thereafter, final
notification dated 5.9.2008 was issued under Section 23-
~) ~ fue~
C
The appellant, engaged in public and consumer
welfare activities challenged the allotment of land to
respondent No.5 in writ petition on the grounds of
violation of Article 14 of the Constitution and arbitrary
exercise of power. The High Court summarily dismissed
D
the writ petition by observing that land belonged to the
Government and it was for the Government to decide
whom the same should be allotted as per its policy and
that no case of violation of any legal or constitutional
right was made out.
E
The question which arose for consideration in the
instant appeal was whether the decision of the State
Government to allot 20 acres land comprised in Khasra
Nos. 82/1 and 83 of village Bawadiya Kalan, Tehsil Huzur,
F
District Bhopal to the Memorial Trust without any
advertisement and without inviting other similarly situated
organisations/institutions to participate in the process of
allotment was contrary to Article 14 of the Constitution
and the provisions of the Madhya Pradesh Nagar Tatha
G
Gram Nivesh Adhiniyam, 1973 and whether modification
of the Bhopal Development Plan and change of land use
was ultra vires the mandate of Section 23A of the Act.
Allowing the appeal, the Court
H
84
SUPREME COURT REPORTS
[2011] 5 S.C.R.
A
HELD: 1.1. The Madhya Pradesh Nagar Tatha Gram
Nivesh Adhiniyam, 1973 (the Act) was enacted to make
provisions for planning and development and use of
land; to make better provisions for the preparation of
development plans and zoning plans with a view to
B ensure that town planning schemes are made in a proper
manner and they are effectively executed. The Act also
provides for constitution of Town and Development
Authority for proper implementation of Town and Country
Development Plan and for the development and
c administration of special areas through Special Area
Development Authority and also to make provisions for
the compulsory acquisition of land required for the
purpose of the development plans and for achieving the
objects of the Act. In exercise of the powers conferred
0 upon it under Section 58 read with Section 85, the State
Government framed the Rules. There is no provision in
the Act or the Rules for disposal and/or transfer of land
in respect of which a regional plan or development plan
or zonal plan has been prepared. The only provision
which has nexus with the Government land is contained
E in Rule 3 which imposes a bar against the transfer of
Government land vested in or managed by the Authority
except with the general or special sanction of the State
Government. [Paras 10, 11, 12] [108-F-H; 116-C-H; 117-AB]
F
1.2. Part IV of the RBC deals with the management
and regulation of Nazul land falling within the limits of
municipal corporations, municipal councils and notified
areas; and transfer thereof by lease, sale etc. In terms of
G paragraph 13(1), permanent lease can be granted either
by auction or without auction. Paragraph 13(2)
enumerates the contingencies in which permanent lease
cannot be granted by auction. If the plot of land is to be
sold by auction then the same is required to be
H advertised or publicized by a recognized method,
AKHIL BHARTIYA UPBHOKTA CONGRESS v. STATE
85
OF MADHYA PRADESH AND ORS.
Paragraph 21 prescribes the mode of auction of lease
A
rights. Any person desirous of participating in the
auction is required to deposit 10 per cent of the premium.
Once the bid is approved by the competent authority, the
bidder has to deposit the balance amount within 30 days.
Paragraph 24 lays down the procedure to be followed for
8
disposal of plot without auction. If any plot is proposed
to be transferred at a concessional premium then the
approval of the State Government is sine qua non. In
case, the Collector is satisfied that the plot of land should
be given without auction then the allottee is required to
C
pay premium equivalent to average market price
determined on the basis of the sale instances of last five
years. Paragraph 26 lays down that when Nazul land is
allotted to non-government organisations or persons on
favourable terms then the conditions specified therein
0
should be scrupulously observed and there should be
rigorous scrutiny of the .proposal. Under this paragraph,
land can be allotted to educational, cultural and
philanthropic institutions/organisations or Cooperative
Societies, Housing Board and Special Area Authority
constituted by the State Government. However,
E
unregistered societies and private trusts are not eligible
for allotment of land. [Para 13] [117-B-E; 118-A-H]
1.3. The concept of 'State' has changed in recent
years. In all democratic dispensations the State has
F
assumed the role of a regulator and provider of different
kinds of services and benefits to the people like jobs,
contracts, licences, plots of land, mineral rights and social
security benefits. In his work "The Modern State" Maciver
(1964 Paperback Edition) advocated that the State should
G
be viewed mainly as a service corporation. When the
Constitution was adopted, people of India resolved to
c_gr;tstitute India into a Sovereign Democratic Republic.
The words 'Socialist' and 'Secular' were added by the
H
86
SUPREME COURT REPORTS
[2011] 5 S.C.R.
A Constitution (Forty-second Amendment) Act, 1976 and
also to secure to all its citizens Justice - social, economic
and political, Liberty of thought, expression, belief, faith
and worship; Equality of status and/or opportunity and
to promote among them all Fraternity assuring the dignity
8 of the individual and the unity and integrity of the Nation.
The expression 'unity of the Nation' was also added by
the Constitution (Forty-second Amendment) Act, 1976.
The idea of welfare State is ingrained in the Preamble of
the Constitution. Part Ill of the Constitution enumerates
C fundamental rights, many of which are akin to the basic
rights of every human being. This part also contains
various positive and negative mandates which are
necessary for ensuring protection of the Fundamental
Rights and making them real and meaningful. Part IV
contains 'Directive Principles of State Policy' which are
D fundamental in the governance of the country and it is
the duty of the State to apply these principles in making
laws. Article 39 specifies certain principles of policy which
are required to be followed by the State. Clause (b)
thereof provides that the State shall, in particular, direct
E its policy towards securing that the ownership and
control of the material resources of the community are so
distributed as best to sub-serve the common good.
Parliament and Legislatures of the States have enacted
several laws and the governments have, from time to
F time, framed policies so that the national wealth and
natural resources are equitably distributed among all
sections of people so that have-nots of the society can
aspire to compete with haves. For achieving the goals of
Justice and Equality set out in the Preamble, the State
G and its agencies/instrumentalities have to function
through political entities and officers/officials at different
levels. The laws enacted by Parliament and State
Legislatures bestow upon them powers for effective
implementation of the laws enacted for creation of an
H
AKHIL BHARTIYA UPBHOKTA CONGRESS v. STATE
87
OF MADHYA PRADESH AND ORS.
egalitarian society. The exercise of power by political A
entities and officers/officials for providing different kinds
of services and benefits to the people always has an
element of discretion, which is required to be used in
larger public interest and for public good. In principle, no
exception can be taken to the use of discretion by the
B
political functionaries and officers of the State and/or its
agencies/instrumentalities provided that this is done in
a rational and judicious manner without any
discrimination against anyone. In Indian constitutional
structure, no functionary of the State or public authority c
has an absolute or unfettered discretion. The very idea
of unfettered discretion is totally incompatible with the
doctrine of equality enshrined in the Constitution and is
an antithesis to the concept of rule of law. [Paras 15, 16,
18] [119-H; 120-D-H; 121-A-B; 122-C-E]
R.D. Shetty v. International Airport Authority of India
(1979) 3 sec 489 - relied on.
D
Ugar Sugar Works Ltd. v. Delhi Administration (2001) 3
SCC 635; State of U.P. v. Chaudhary Ram Beer Singh (2005)
E
8 SCC 550; State of Orissa v. Gopinath Dash (2005) 13 SCC
495; Meerut Development Authority v. Association of
Management Studies (2009) 6 SCC 171; State of Uttar
Pradesh v. Bansi Dhar (1974) 1 SCC 447; Canbank
Financial Services Ltd. v. Custodian (2004) 8 SCC 355;
F
Harsh Dhingra v. State of Haryana (2001) 9 SCC 550 -
referred to.
Administrative Law' (6th) Edition, Prof. H.W.R. Wade -
referred to.
1.4. The State and/or its agencies/instrumentalities
cannot give largesse to any person according to the
sweet will and whims of the political entities and/or
officers of the State. Every action/decision of the State
'
G
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88
SUPREME COURT REPORTS
[2011) 5 S.C.R.
A
and/or its agencies/instrumentalities to give largesse or
confer benefit must be founded on a sound, transparent,
discernible and well defined policy, which shall be made
known to the public by publication in the Official Gazette
B
and other recognized modes of publicity and such policy
must be implemented/executed by adopting a nondiscriminatory or non-arbitrary method irrespective of the
class or category of persons proposed to be benefitted
by the policy. The distribution of largesse like allotment
of land, grant of quota, permit licence etc. by the State
c and its agencies/instrumentalities should always be done
in a fair and equitable manner and the element of
favoritism or nepotism shall not influence the exercise of
discretion, if any, conferred upon the particular
functionary or officer of the State. There cannot be any
0
policy, much less, a rational policy of allotting land on the
basis of applications made by individuals, bodies,
organizations or institutions de hors an invitation or
advertisement by the State or its agency/instrumentality.
By entertaining applications made by individuals,
E
F
organisations or institutions for allotment of land or for
grant of any other type of largesse the State cannot
exclude other eligible persons from lodging competing
claim. Any allotment of land or grant of other form of
largesse by the State or its agencies/instrumentalities by
treating the exercise as a private venture is liable to be
treated as arbitrary, discriminatory and an act of
favoritism and nepotism violating the soul of the equality
clause embodied in Article 14 of the Constitution. This,
however, does not mean that the State can never allot
land to the institutions/organisations engaged In
G educational, cultural, social or philanthropic activities or ·
are rendering service to the Society except by way of
auction. Nevertheless, it is necessary to observe that
once a piece of land is earmarked or identified for
allotment to institutions/organisations engaged in any
H
AKHIL BHARTIYA UPBHOKTA CONGRESS v. STATE 89
OF MADHYA PRADESH AND ORS.
such activity, the actual exercise of allotment must be
done in a manner consistent with the doctrine of equality.
The competent authority should, as a matter of course,
issue an advertisement incorporating therein the
conditions of eligibility so as to enable all similarly
situated eligible persons, institutions/organisations to
participate in the process of allotment, whether by way
of auction or otherwise. In a given case the Government
may allot land at a fixed price but in that case also
allotment must be preceded by a wholesome exercise
consistent with Article 14 of the Constitution. The
allotment of land by the State or its agencies/
instrumentalities to a body/organization/institution which
carry the tag Of caste, community or religion is not only
contrary to the idea of Secular Democratic Republic but
A
B
c
is also fraught with grave danger of dividing the society
D
on caste or communal lines. The allotment of land to
such bodies/organisations/institutions on political
considerations or by way of favoritism or nepotism or
with a view to nurture the vote bank for future is
constitutionally impermissible. [Paras 31-34] [134-C-H;
135-A-G]
E
S.G. Jaisinghani v. Union of India AIR 1967 SC 1427 -
relied on.
Padfield v. Minister of Agriculture, Fishery and Food
(1968) A.C. 997; Breen v. Amalgamated Engineering Union
(1971) 2 QB 175; Laker Airways Ltd. v. Department of Trade
1977 QB 643; V. Punnen Thomas v. State of Kera/a AIR
1969 Ker. 81 (Full Bench); Eursian Equipments and
Chemicals Ltd. v. State of West Bengal (1975) 1 SCC 70;
Kasturi Lal Lakshmi Reddy v. State of J And K (1980) 4 SCC
1; Common Cause, A Registered Society v. Union of India
(1996) 6 SCC 530; Shrilekha Vidyarthi v. State of U.P. (1991)
1 SCC 212; L.l.C. of India v. Consumer Education &
Research Centre (1995) 5 SCC 482; New India Public School
F
G
H
90
SUPREME COURT REPORTS
[2011] 5 S.C.R.
A v. HUDA (1996) 5 SCC 510; Seven Seas Educational
Society v. HUDA AIR 1996 P&H) 229 - referred to.
2.1. Admittedly, the application for reservation of land
was made by 'KJ', in his capacity as convener of the
8 Memorial Trust. The respondents have not placed on
record any document to show that on the date of
application, the Memorial Trust was registered as a public
trust. During the course of hearing also no such
document was produced before the Court. It is also not
in dispute that respondent No. 5 was registered as a
C public trust only on 6.10.2004 i.e. after the order for
reservation of land in favour of the Memorial Trust was
passed. The allotment was also initially made in the name
of trust, but, later on, the name of respondent No. 5 was
substituted in place of the Memorial Trust. The exercise
D for reservation of 30 acres land and allotment of 20 acres
was not preceded by any advertisement in the newspaper
or by any other recognized mode of publicity inviting
applications from organizations/institutions like the
Memorial Trust or respondent No.5 for allotment of land
E and everything was done by the political and non-political
functionaries of the State as if they were under a legal
obligation to allot land to the Memorial Trust and/or
respondent No.5. The advertisements issued by the State
functionaries were only for inviting objections against the
F proposed reservation and/or allotment of land in favour
of the Memorial Trust and not for participation in the
process of allotment. Therefore, allotment of land to
respondent No.5 was not done after following a
procedure consistent with Article 14 of the Constitution.
G (Para 35] (135-H; 136-A-F]
2.2. Although, the objectives of respondent No. 5 are
laudable and the institute proposed to be established by
it is likely to benefit an important segment of the society
but the fact remains that all its trustees are members of a
H particular party and the entire exercise for the reservation
AKHIL BHARTIYA UPBHOKTA CONGRESS v. STATE
91
OF MADHYA PRADESH AND ORS.
and allotment of land and waiver of major portion of the A
premium was undertaken because political functionaries
of the State wanted to favour respondent No. 5 and the
officers of the State at different levels were forced to toe
the line of their political masters. [Para 36) [136-G-H]
2.3. There is no provision in the Act or the Rules and
. even in the RBC for allotment of land without issuing
advertisement and/or without inviting a·pplications from
eligible persons to participate in the process of allotment.
B
If there would have been such a provision in the Act or c
the Rules or the RBC the same could have been
successfully challenged on the ground of violation of
Article 14 of the Constitution. The argument that the
impugned allotment may not be annulled because the
State has a definite policy of allotting land to religious, D
social, educational
and
philanthropic
bodies,
organisations/institutions without any advertisement or
inviting applications and without even charging premium
is liable to be rejected. From the lists annexed with the
affidavits, it did appear that the State and its functionaries E
have allotted various parcels of land to different
institutions and organizations between 1982 to 2008.
Large number of these allotments were made to the
departments/establishments of the Central Government/
State Governments and their agencies/instrumentalities.
Some plots were allotted to the hospitals and charitable
F
institutions. Some were allotted to different political
parties, but quite a few were allotted to the caste/
community based bodies. Allotments were also made
without charging premium and at an annual rent of Re.
1/- only. These allotments cannot lead to an inference that G
the State Government has framed a well-defined and
rational policy for allotment of land. The RBC also does
not contain any policy for allotment of land without
issuing any advertisement and without following a
procedure in which all similarly situated persons can H
92
SUPREME COURT REPORTS
[2011] 5 S.C.R.
A stake their claim for allotment. Part IV of the RBC
contains the definition of Nazul land and provides for
allotment of land at market price or concessional price.
The authorities competent to allot land for different
purposes have also been identified and provisions have
s been made for scrutiny of applications at different levels.
However, these provisions have been misinterpreted by
the functionaries of the State for several years as if the
same empowered the concerned authorities to allot Nazul
land without following any discernible criteria and in
c complete disregard to their obligation to act in
accordance with the constitutional norms. Unfortunately,
the High Court overlooked that the entire process of
reservation of land and allotment thereof was fraught with
grave illegality and was nothing but a blatant act of
0
favoritism on the part of functionaries of the State and
summarily dismissed the writ petition. [Paras 37 to 39]
[137-A-H; 138-A-C]
3.1. Whether notifications dated 6.6.2008 and
5.9.2008 by which the Bhopal Development Plan was
E modified are ultra vires the provisions of Section 23-A of
the Act.
3.1. A reading of the provisions contained in
Chapter-IV of the Act would make it clear that a
F
development plan shall take into account the draft-five
year and annual development plan of the district, if any,
prepared under the Madhya Pradesh Zila Yogana Samiti
Adhiniyam and broadly indicated the land use proposed
in the planning area, allocation of areas or zones of land
G for residential, industrial, commercial or agricultural
purpose; open spaces, parks and gardens, green-belts,
zoological gardens and playgrounds; public institutions
and offices and other special purposes as the Director
may deem it fit. The development plan prepared under
Chapter IV is the foundation of development of the
H
AKHIL BHARTIYA UPBHOKTA CONGRESS v. STATE
93
. OF MADHYA PRADESH AND ORS.
particular area for a specified number of years. No one
A
can use land falling within the area for which the
development plan has been prepared for a purpose other
than for which it is earmarked. Section 23-A was inserted
in 1992 and amended in 2005 with a view to empower the
State Government to modify the development plan or B
zoning plan. However, keeping in view the basic
objective of planned development of the areas to which
the Act is applicable, the Legislature designedly did not
give blanket power to the State Government to modify the
development plan. The power of modification of c
development plan can be exercised only for specified
purposes. In terms of Section 23-A(1 )(a), the development
plan can be modified by the State Government either suo
motu or <:.t the request of the Authority for any proposed
project of the Government of India or the State D
Government and its enterprises or for any proposed
project relating to development of the State or for
implementing a scheme of the Authority. Under clause
(b), the State Government can entertain an application
from any person or association of persons for
modification of development plan for the purpose of E
undertaking any activity or scheme which is considered
by the State Government or the Director, on the advice
of the committee constituted for this purpose, to be
beneficial to the society. This is subject to the condition
that the modification so made shall be an integral part of · F
the revised development plan. Section 23-A(2) provides
for issue of public notice inviting objections against the
proposed modification of the plan. Such notice is required
to be published along with the modified plan
continuously for two days in two daily newspapers which
G
are on the list of the Government and which have
circulation in the area. A copy of the notice is also required
to be affixed in a conspicuous place in the office of the
Collector. After considering the objections and
H
94
SUPREME COURT REPORTS
[2011] 5 S.C.R.
A suggestions, if any received, and giving reasonable
opportunity of hearing to the affected persons, the State
Government can confirm the modification. [Para 40] [138D-H; 139-A-F]
8
3.2. It is not in dispute that in the Bhopal
Development plan, the use of land which was reserved
and allotted to respondent No.5 was shown as public and
semi public (health). The State Government modified the
plan by invoking Section 23-A(1)(a) of the Act for the
C purpose of facilitating establishment of an institute by
respondent No. 5 and not for any proposed project of the
Government of India or the State Government and its
enterprises or for any proposed project relating to
development of the State or for implementaticn of the
Town Development Scheme. As a matter of fact, the
D exercise undertaken for the change of land use, which
resulted in modification of the development plan was an
empty formality because land had been allotted to
respondent No.5 almost two years prior to the issue of
notification under Section 23-A (1 )(a) and the objects for
E which respondent No.5 was registered as a trust have no
nexus with the purpose for which modification of
development plan can be effected under that section.
Therefore, modification of the development plan was ultra
vi res the provisions of Section 23-A(1 )(a) of the Act. [Para
F 41] [139-G-H; 140-A-C]
3.3. The challenge to the locus standi of the appellant
merits rejection because it has not been disputed that the
appellant is a public spirited organization and has
G challenged other similar allotment made in favour of
Punjabi Samaj, Bhopal. Even if a person files a writ
petition for vindication of his private interest but raises
question of public importance involving exercise of power
by men in authority then it is the duty of the Court to
H enquire into the matter. [Para 42] [140-D-E]
AKHIL BHARTIYA UPBHOKTA CONGRESS v. STATE
95
OF MADHYA PRADESH AND ORS.
Shivajirao Ni/angekar Patil v. Mahesh Madhav Gosavi A
(1987) 1 sec 227 - relied on.
3.4. The argument that the doctrine of prospective
overruling should be invoked and the allotment made in
favour of respondent No.5 may not be quashed sounds
8
attractive but cannot be accepted because that the
impugned allotment was held to be the result of an
exercise undertaken in gross violation of Article 14 of the
Constitution and was an act of favoritism and nepotism.
The impugned order of the High Court is set aside and
the writ petition filed by the appellant is allowed. The
C
allotment of 20 acres land to respondent No.5 is declared
illegal and quashed. Notifications dated 6.6.2008 and
5.9.2008 issued by the State Government under Section
23-A(1)(a) and (2) are also quashed. The Commissioner,
Town and Country Planning, Bhopal is directed to take
D
possession of the land and use the same strictly in
accordance with the Bhopal Development Plan. The State
Government is directed to refund the amount deposited
by respondent No.5 within a period of 15 days. [Paras 4345] [140-F-H; 141-A·E]
E
to.
S.R. Dass v. State of Haryana (1988 PLJ 123)- referred
Case Law Reference:
(2001) 2 SCR 630
(2005) 8 sec 550
referred to
referred to
(2005) 5 Suppl SCR 699 referred to
(2009) 6 sec 663
referred to
(1974) 1 sec 447
referred to
(2004) 4 Suppl SCR 60 referred to
'
(2001) 3 Suppl SCR 446 referred to
Para 7
Para 7
Para 7
Para 7
Para 7
Para 7
Para 8
F
G
H
96
SUPREME COURT REPORTS
[2011] 5 S.C.R.
A
(1968) A.C. 997
referred to
Para 20
(1971) 2 QB 175
referred to
Para 21
1977 QB 643
referred to
Para 22
B
1967 SCR 703.
relied on
Para 23
AIR 1969 Ker. 81
referred to
Para 24
(1975) 2 SCR 674
referred to
Para 25
(1980) 3 SCR 1338
referred to
Para 25
c
(1996) 6 Suppl SCR 719 referred to
Para 26
(1990) 1 Suppl SCR 625 referred to
Para 28
(1995) 1 Suppl SCR 349 referred to
Para 29
•D
(1996) 3 Suppl SCR 597 referred to
Para 30
AIR 1996 P&H) 229
referred to
Para 30
(1987) 1 sec 221
relied on
Para 42
E
(1988 PLJ 123)
referred to
Para 43
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2965 of 2011.
From the Judgment & Order dated 10.03.2008 of the High
F Court of Judicature at Jabalpur (MP) in Writ Petition No. 10617
of 2007.
Raju Ramchandran, Santosh Kumar for the Appellant.
Ravi Shankar Prasad, Ranjit Kumar, B.S. Banthia, Vikas
G Upadhyay, Navin Chawla, Tushar Singh for the Respondents.
H
The Judgment of the Court was delivered by
G.S. SINGHVI, J. 1. Leave granted.
AKHIL BHARTIYA UPBHOKTA CONGRESS. v. STATE
97
OF MADHYA PRADESH AND ORS. [G.S. SINGHVI, J.]
2. Whether the decision of the Government of Madhya
A
Pradesh to allot 20 acres land comprised in Khasra Nos. 82/1
and 83 of village Bawadiya Kalan, Tehsil Huzur, District Bhopal
to late Shri Kushabhau Thakre Memorial Trust (for short, "the
Memorial Trust")/Shri Kushabhau Thakre Training Institute
(respondent No. 5) without any advertisement and without
B
inviting other similarly situated organisations/institutions to
participate in the process of allotment is contrary to Article 14
of the Constitution and the provisions of the Madhya Pradesh
Nagar Tatha Gram Nivesh Adhiniyam, 1973 (for short, "the Acf')
and whether modification of the Bhopal Development Plan and c
change of land use is ultra vires the mandate of Section 23A
of the Act are the questions which arise for consideration in this
appeal filed against the order of the Madhya. Pradesh High
Court dismissing the Writ Petition filed by the appellant.
· 3. That facts necessary for deciding the aforementioned
D
questions have been culled out from the pleadings of the
parties and the records produced by the learned counsel for
the State. The same are enumerated below:
(i) On 18.6.2004, Shri Kailash Joshi. made a written
E
request to the Principal Secretary, Housing Department,
Government of Madhya Pradesh (for short, "the Principal
SecretarY, Housing") by describing himself as a Convenor of
the Memorial Trust for reservation of 30 acres land comprised
in Khasra Nos.83, 85/1 and 85/2 of village Bawadiya Kalan, in
F
favour of the Memorial Trust to enable it to establish an All India
Training Institute in the memory of late Shri Kushabhau Thakre.
(ii) Although, letter dated 18.6.2004 was addressed to the
Principal Secretary, the same was actually handed over to Shri
Babu Lal Gaur, the then Minister, Housing and Environment,
G
Madhya Pradesh. He forwarded the same to the Principal
Secretary for immediate action. The latter directed that steps
be taken for placing the matter before the reservation
committee. Simultaneously, letters were issued to
H
98
SUPREME COURT REPORTS
[2011) 5 S.C.R.
A Commissioner-cum-Director, Town and Country Planning,
Bhopal (respondent No.3) and Collector, Bhopal (respondent
No.