(Prayer: Writ Petitions filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records of the first respondent comprised in its order under Ref.Letter No.28961/Ni.Mu5(1)/2005-3 dated 19.07.2005 and quash the same and consequently direct the first respondent to positively exercise its power of assignment of the lands admeasuring 41.92 acres in Survey Nos.557,771,772/1,772/3,773,774/1,774/3,775/1,775/3m,776/1B,776/3,777/1, 777/3, 778/1 and 778/3 at Katpadi village, Vellore district to and in favour of the petitioner for the reasons stated in the petitioner's several representations including its representation dated 08.06.2005.)
1. The rejection of the claim of the writ petitioner seeking assignment of the Government land to a larger extent in proceeding dated 19.07.2005 is sought to be quashed in the present writ petition. The consequential direction is sought for to direct the first respondent to positively exercise its power of assignment of the lands admeasuring 41.92 acres in Survey Nos.557, 771, 772/1, 772/3, 773, 774/1, 774/3, 775/1,775/3m, 776/1B, 776/3, 777/1, 777/3, 778/1 and 778/3 at Katpadi village, Vellore district to and in favour of the petitioner for the reasons stated in the petitioner's representations including its representation dated 08.06.2005.
2. The Pro-Chancellor of the writ petitioner / University has filed the present writ petition. The order impugned dated 19.07.2005 issued by the Principal Secretary to Government, Revenue Department, states that the land in question is the Government Poramboke land and the claim of the writ petitioner was considered pursuant to the directions issued by this Court in WP.Nos.18094 and 18095 of 2005 dated 31.05.2005. A decision was taken declining the claim of the writ petitioner's on the ground that, the land belongs to the Government classified as Poramboke had already been handed over to the Sports Development Authority of Tamil Nadu for the purpose of the benefit of the public at large and in order to encourage the sports developments in the State through the Sports Development Authority.
3. The order impugned states that the Government poramboke land measuring 41.92 acres are required for the purpose of construction of multipurpose sports stadium to developed by the Sports Authority of Tamil Nadu. Thus, the assignments sought for by the writ petitioner in respect of the said land cannot be granted and the Governance rejected the claim. The learned Senior Counsel for the writ petitioner at the first instance emphatically clarified that the writ petitioner is not an encroacher and the writ petitioner has no intention to encroach the Government land. The writ petitioner is one of a reputed institution and students from various States and from other Countries are studying. Thus, the writ petitioner institution has no such intention at all to encroach upon the public land as they are law abiding citizen. In this context, this Court is of an opinion that whether the writ petitioner institution has got any legal right to claim assignment of the Governance land and in this regard, whether the present writ petition can be entertained or not.
Pleadings of the Writ Petitioner:
4. The writ petitioner University is a deemed University of international repute was founded as a self financing institution known as Vellore Engineering College (VEC) in the year 1984, by the North Arcot Educational and Charitable Trust, headed by Sr.G.Viswanathan, who is a former parliamentarian, Minister and an educationalist. Ever since its inception, the writ petitioner/University has been in possession of the lands in question as well as other parcels of land in its immediate vicinity. In so far as the adjacent lands admeasuring about 150 acres are concerned, the first respondent had already taken a decision to assign and handover the said lands in favour of the petitioner/University. The implementation of the said decision, an extent of approximately 98.80 acres of land was officially handed over to the petitioner/University as early as in the year 1985, vide second respondent's proceedings in Rc.No.D1.81711/84 dated 28.06.1985. As regards the balance extent of approximately 52 acres of land, the first respondent has already sent its recommendation to the 2nd respondent vide its proceedings in G.O.Ms.No.112, Revenue (Ni.Mu.5) Department dated 09.03.2001 to execute requisite documents for assigning the said lands in favour of the writ petitioner / University after determining the market value of the lands. The tentative value of the lands were determined by the first respondent at Rs.2,38,34,650/-.
5. In so far as the lands which are subject matter of the present writ petition are concerned, the same has been allotted by the first respondent about five decades ago, in favour of an Ex-servicemen Cooperative Society subject to certain conditions. However, the lands had remained unutilized and since 1985 has been continuously in in petitioner's possession which warrants resumption of possession as well as consideration of allotment in favour of the petitioner. During the last over two decades of its existence, the petitioner/University has set up several centres of excellence, housed in state-of-the-art buildings, in all admeasuring approximately 25,00,000 sq.ft.
6. The constructions put up by the petitioner University include a seven storied technology tower with a total floor area of about 2,00,000 sq.ft., 8 hostels for men and 4 hostels for women, a nine storied building for providing accommodation for the staff and a state-of-the-art library building. The writ petitioner had narrated about the infrastructure facilities provided by the institution to the students who are undergoing various courses and the reputation being enjoyed by the writ petitioner institution. Those details narrated in the affidavit require no further observation.
7. The Court contention set out in the present writ petition is that the writ petitioner filed WP.Nos.18094 and 18095 of 2005 inter-alia seeking a direction of declaration to declare the 2nd respondent's action in purporting to divest the petitioner of its possession and enjoyment of the subject lands are illegal and unconstitutional and to issue a Writ of Mandamus directing the first and second respondents herein to forthwith consider the writ petitioner's applications dated 08.03.1997, 10.11.1998 and 02.04.2004 for assigning the subject lands in petitioner's favour on payment of value as may be determined by the first and second respondent. The said writ petitions were disposed of by this Hon'ble Court by an order dated 31.05.2005 wherein this Court was pleased to pass an order as follows:-
“Having regard to the submissions made by the learned counsel on either side, I am inclined to direct the first the first respondent herein to consider the petitioner's representation dated 09.03.1997 and pass orders therein. The petitioner is directed to furnish a copy of the said representation along with a copy of this order to the first respondent with all supporting documents and on receipt of the same, within a week from the receipt of this order and the first respondent is directed to dispose of the said representation in accordance with law and taking in to consideration the necessity and also the service rendered by the petitioner institution for the students community within six weeks from the date of receipt of a copy of the said representation. Till such time, the petitioner's possession of the subject land shall not be disturbed by the respondent.”
8. Pursuant to the orders, the writ petitioner made a representation to the respondents. The respondent no.2 and 3 attempted to put up fencing on the subject property on 07.06.2005 which was resisted by the petitioner on the strength of the orders passed by this Hon'ble Court. A copy of the complaint dated 07.06.2005, lodged by the petitioner with the local Police seeking enforcement of the Court order is also filed. The writ petitioner once again approached this Hon'ble Court in WP.No.18094 of 2005, seeking an extension of the order of injunction dated 31.05.2005. Meanwhile, the first respondent consider the application submitted by the writ petitioners and passed an order which is impugned in the present writ petition.
9. The first respondent issued the impugned order rejecting the writ petitioner's representation on the following grounds:-
“(i) that the consideration towards conveying of adjacent lands admeasuring 98.80 acres vide G.O.Ms.No.112 (Revenue Department) dated 08.03.2001 was yet to be collected;
(ii) that the subject lands were in the first respondent's possession and custody, without any encroachment since the year 1997 and that the lands were being used by the petitioner's students since the subjects lands were without any boundary walls.
(iii) That the first respondent has already assigned 98 acres of lands to the petitioner institution, which was providing education on a commercial basis and that if the petitioner required further lands. It could purchase patta lands.
(iv) That since the lands were registered in the Prohibitory Order Book, the petitioner institution is disentitled from claiming any right in respect of the subject lands;
(v) That with a view to benefit the public of Vellore District and to establish a multi-sports complex so as to encourage sports, the permission to enter the subject lands have been issued to the 3rd respondent.”
Challenging the said impugned order, the present writ petition has been filed.
10. It is contended on behalf of the writ petitioners that, the reasons given by the first respondent in the impugned order are extraneous, arbitrary and without any application of mind. The grounds raised by the writ petitioners in the representations were not considered with reference to the facts and circumstances and prevailing status of the Poramboke land which is in question in the present writ petition. The first respondent failed to appreciate that the writ petitioner is an educational and charitable trust, which is amongst the most reputed technical institutions in the country. The petitioner has requested for assignment of the subject lands not as a grant, but for a reasonable consideration to be determined by the authorities concerned. Near about 4000 students are presently staying in the men's hostel, out of 8000 students in the petitioner university, which is 60 feet away from the subject lands. The subject lands have been used for several years by the students for various sports practicing including athletic practicing. Even as at present, the additional accommodation in the hostel facilities are required. The application for assignment are pending with the Government for more than 8 years. The subject lands are situated 8 kms away from Vellore town requiring not less than 30 minutes travel by cycle and 45 minutes by bus. Such a long travel for persons from Vellore town and particularly for the students is beyond the realm of possibility.
11. It would also be impracticable to expect the public to spend Rs.12/- on bus fare for transportation between Vellore town and the proposed stadium. Citing all these reasons, the writ petitioner states that, even the petitioner had expressed their willingness to provide alternate sites in lieu of the Poramboke land in question in the present writ petition. The respondents have not considered none of the grounds raised by the writ petitioner and rejecting the claim of assignment in favour of the writ petitioner and therefore, the writ petitioner is constrained to move the present writ petition.
12. At the outset, it is contended that the writ petitioner is entitled for assignment of the said lands as the Government Poramboke lands is situated adjacent to the premises of the writ petitioner and the writ petitioner being the educational institution must be granted assignment for the welfare of the students studying in the institution.
Pleadings of the respondent:
13. The first respondent filed a counter affidavit and the counter states that the Government Poramboke lands in S.Nos.557,771, etc., to an extent of 41.92 acres have been entered in the Prohibitory Order Book as per the Vellore District Collector's proceedings No.Rc.B1/32348/96, dated 20.01.1997. Since the lands are lying vacant, occasionally some youngsters were found playing in the site. Out of 41.92 acres of poramboke lands bearing aside the "Battai", an extent of 36.60 acres of land was given enter upon the permission of the Tamil Nadu Sports Development Authority in Collector's office proceedings No.Rc.B/71313/04m dated 19.04.2005, for the construction of a stadium and under the effective possession with them.
14. The Member Secretary, Sports Development Authority of Tamil Nadu/3rd respondent herein states that the Vellore Institute of Technology has secured orders to an extent of 98.80 acres of poramboke lands and now trying to get more and more Government poramboke lands in and around the Institution, without settling a single "B" Memo and the land in question had been entered in the Prohibitory Order Book was allotted to the Sports Development Authority of Tamil Nadu by the District Administration for building up a District Sports Complex. The 3rd respondent had identified the place for the District Sports Complex, since it is most suitable to accommodate 27 disciplines of various sports activities from swimming pool, skating, boxing and other traditional games with synthetic athletic track. Astroturf pitches etc., it is also proposed to have a walking track also for those who desire such activities. Above all, it has been proposed to construct Sport hostels with dormitory accommodation to enable to conduct National and International competitions.
15. The proposed complex is ideally located to all sports activities since it is just two kilometers from the Katpadi Railway junction and seven kilometers from Vellore Town. It will cater the needs of the thousands of students in entire district. Such a sports complex is available only at Patiala at Punjab State, Bangalore at Karnataka State in the whole country. Already the Sports Development Authority of Tamil Nadu has allotted considerable fund to start the work. At this stage, the writ petitioner has filed writ petition and stalled the entire work which will lead to escalation of costs and enormous strain on the exchequer besides casing great hardships to the sports person.
16. The writ petitioner claims that, ever since its inception in the year 1984, the then Vellore Institute of Technology is in possession of the lands in question as well as other parcels of land in its immediate vicinity without specifying the land in its possession. The petitioner falsely claims that the Revenue department had already decided to assign and hand over 150 acres of land in the vicinity of the above said land. This is absolutely false and there is no decision to hand over 150 acres of land to the writ petitioner at any point of time. The petitioner was allotted only 98.80 acres of land of which he is in possession presently.
17. The remaining 52 acres of land, the 3rd respondent herein a Government of Tamil Nadu's undertaking was allotted 41.92 acres in the months of March and April 2005 and that the 3rd respondent has already taken possession and completed fencing over the lands. The writ petitioner claims that first respondent has sent its recommendation to the 2nd respondent in G.O.Ms.No.112, Revenue (Ni.Mu.5) Department, dated 09.03.2001 to execute requisite documents for assigning the said lands in favour of petitioner's university after determining the market value of the land is absolutely false. No such recommendation has been made in favour of the writ petitioner in the above G.O. in respect of the 4.92 acres. From the averment made by the writ petitioner, it is clear that the petitioner has set his eye on not only the lands assigned to the 3rd respondent, but also the entire poramboke lands in that locality.
18. The Ex-servicemen Society was allotted the land now allotted to the Sports Development Authority of Tamil Nadu in the year 1952 is correct and that it is also true that the said society has not utilized the land. Hence, the allotment was cancelled in the year 1997 and the lands were reclaimed by the Government and an entry was made in the Prohibitory Order Book. But, it is false to say that the petitioner's University students were exclusively using the land and the petitioner is in possession of the lands by the virtue of such usage. The cancellation of order of the 2nd respondent generally mentioned that students in and around the area were using the land because of the land is in unfenced condition. Any area lying vacant could be used by passers-by through-fare and it does not mean passers-by will be having a right to claim possession.
19. The representation submitted by the writ petitioner was considered fully by Government and the first respondent had rightly held that the petitioner under the circumstances can purchase any extent of patta lands, since it achieved the present possession only by utilizing the assignment of Government land of 98.80 acres profitably without paying the full land value. In other words, it is stated that already the Government had assigned an larger extent of 98.80 acres in favour of the writ petitioner and from and out of the said extent of land, the writ petitioner has profited. Thus, further assignment was rejected.
20. The difficulty in meeting the demands of its growing institution is not a ground for the Government to assign the Government poramboke lands which was already been proposed for the construction of Multipurpose Stadium for the benefit of the people at large. If the Government construct a Stadium through the Sports Development Authority of Tamil Nadu, the said benefits will be of much use to poor and downtrodden people who all are aspiring to achieve excellence in the field of Sports.
21. The Sports Development Authority of Tamil Nadu is the Government Wing and the said land was already handed over in favour of the 3rd respondent for the purpose of constructing the multipurpose stadium for the benefit of the people at large and the project is being stalled on account of the interim order granted in the present writ petition.
22. The suggestions made by the writ petitioner is that the proposed stadium to be constructed by the State would be located elsewhere, it is stated that the present land has been identified after a thorough search in various places around Vellore Town. The Chancellor, being the former Minister from the District has a clear knowledge about the topography and had already suggested the alternatives that he has listed. Most of them are watercourse tanks and it would be a heinous criminal offence to encroach on such water bodies in this rain-starved district. The area indicated in Sathuvachari is a huge hillock. All the alternatives proposed by Vellore Institute of Technology have been thoroughly considered before deciding to develop the Sports Complex at the said 41.92 acres. However, it is also a technical decision and the State will be guided by the opinion of the Sports Development Authority of Tamil Nadu.
23. The Sports Development Authority of Tamil Nadu has made it very clear that it would prefer to develop the Sports Complex only in this site. About the misgivings of the petitioner about all the nasty things that would happen, if a stadium were to be developed on these 41.92 acres, it is deeply regrettable to note that they smack of sheer elitism, bigotry and chauvinism it insults the students and citizens of the District and it merely claims that the State Government lands are ever more required for meeting the luxury demands of rich, well heeled polished people. It grossly ignores the well intentioned move by the State Government to develop a Sports Stadium for the poor students whose parents do not have the wealth to admit their children into the institutes like Vellore Institute of Technology.
24. The writ petitioner institution is a private institution and enjoying the benefits of Government assignment of 98.80 acres of land and it can no further preference over the Government department, i.e, with the 3rd respondent. The counter further states that the other allegations and averments set out in the writ petition are false and therefore, the writ petition deserves to be rejected. The 3rd respondent also states that the Government lands for an extent of 98.80 acres in Katpadi and Kangeyam village was handed over to the writ petitioner. The Government issued G.O.Ms.No.112, Revenue (Ni.Mu.5) Department, dated 09.03.2001 was issued allotting 98.80 acres with certain conditions on upon the payment of necessary cost. Therefore, the further application submitted by the writ petitioner to assign further extent of 41.92 acres of land in Katpadi village was rightly rejected and there is no infirmity.
25. This apart, the said land in question was already allotted in favour of the 3rd respondent and the 3rd respondent has proposed to construct the multipurpose stadium for the benefit of all the people residing in that locality. Such a multipurpose stadium to be constructed would be benefit to the poor, downtrodden people of that locality and the youngsters who all are not having adequate financial support for the development of their sports activities. Thus such a public interest is a paramount importance and the writ petitioner being a private institution and already make lot of profits from and out of the land assigned by the Government to the extent of 98.80 acres is certainly not entitled to seek further assignment from the Government.
Pleadings of the 3rd respondent:
26. The 3rd respondent filed an additional counter affidavit states that the Government of Tamil Nadu has allotted 41.92 acres of Government land in favour of Secretary, Katpadi Timber and Metal Works for Ex-servicemen for establishment of Metal and Timber Work shop based upon the proceedings of the District Collector, Vellore, dated 02.02.1952. In view of the fact that the 3rd respondent which is an Apex Body for implementation of Sports policy of the Government of Tamil Nadu and the Hon'ble Chief Minister of Tamil Nadu is the Chairman of the 3rd respondent (SDAT). The creation of sports infrastructure facilities in Vellore is a long pending issue. The Government has allotted the lands measuring an extent of 41.92 acres in favour of the 3rd respondent on 17.07.2005, since the ex-servicemen, association had not utilized the lands for a long period and thereby the earlier allotment made to them was cancelled and the entry was made in prohibitory list as the lands are free from encroachment and entry permit was granted to 3rd respondent as the lands are suitable for construction of stadium.
27. The Sports Development Authority of Tamil Nadu has proposed to utilize the land in question for public cause. Thus, the Government has rightly rejected the assignment in favour of private institution.
28. In the additional counter affidavit, the various sports activities and the infrastructure facilities to be provided to the sports persons are narrated by the 3rd respondent, the proposals already submitted and the funds sought for from the Government of India under USIS for development of sports infrastructure in Vellore has also been stated in the counter affidavit narrating all the details in respect of the Sports development facilities to be provided in the land in question. The 3rd respondent states that the writ petitioner has no rights whatsoever the claim assigned in respect of the poramboke land which is now lying vacant.
29. The basic facts to be considered in the present writ petition on hand are that the writ petitioner is a private institution. The writ petitioner had already been assigned with a land by the Government of Tamil Nadu to an extent of 98.80 acres from and out of the said assignment of the land, the writ petitioners are making profits by running the institution. The correctness or otherwise is also to be verified in this regard. The writ petitioner institution is a private body. The first respondent Government rejected the claim of the writ petitioner for further assignment of 41.92 acres in favour of the writ petitioner on the ground that the writ petitioner being a profit making institution can purchase patta lands for the development of their institution. Contrarily, the said land extending 41.92 acres were already allotted in favour of the Sports Development Authority of Tamil Nadu for the purpose of developing the infrastructure facilities for sports persons. The development of multipurpose stadium and sports infrastructure facilities are a long pending issue in Vellore.
30. The 3rd respondent has submitted necessary proposals and submitted details regarding the sports infrastructure to be developed in that locality. The alternate suggestions and sites mentioned by the Pro-Vice Chancellor of the writ petitioner institution was found not suitable, in view of the fact that the proposals are to occupy the water bodies and water resources and the sports infrastructure facilities cannot be provided by taking away the water body and water resources as per the directions of the Hon'ble Supreme Court of India. Thus, the alternative suggestions offered by the writ petitioners being rejected on the ground that the said lands were not suitable for developing sports stadium and for providing infrastructure facilities for the development of the sports.
31. The writ petitioner has already got assignment in their favour to an extent of 98.80 acres from the Government of Tamil Nadu and the basis of such an assignment is not known. This apart, the writ petitioner is attempting to utilize the said land knowing the fact that the said land in question measuring 41.92 acres had already been allotted in favour of the 3rd respondent/the Sports Developing Authority of Tamil Nadu.
32. This Court is of an undoubted opinion that assignment of Government poramboke land to a private institution can never be claimed as a matter of legal right. Assignment of lands are to be granted strictly in accordance with the principles of necessity and in the interest of public. Even the state cannot have any powers to assign the land at their whims and fancies. The Citizens are the owners in respect of the State poramboke lands and "we the people of India", is empowered to utilize all such public lands for the interest of public at large and for the implementation of the welfare schemes to be implemented by the State.
33. The State being the welfare State is strictly bound by the Constitutional principles in the matter of assignment of Government land in favour of few individuals. Such decisions if taken without any valid reason and not in accord with Constitutional schemes by the State is to be construed as favoritism and nepotism. For the development of a private educational institution, State cannot part with the valuable Government lands depriving the Constitutional rights of all other citizens in general. By assigning or allotting of such Government poramboke lands in favour of few private individuals, undoubtedly infringes the rights of all other citizens. When the Constitutional rights of all other citizens are being infringed, this Court is of an undoubted opinion that, the State has no power under the Constitution to cause infringement of the rights of the citizens. The State is bound to act in the interest of public and to secure its citizens justice, Social economic and political, equality of status and opportunity and to promote them all. When the State is bound to protect the Constitutional rights of all the citizen without any discrimination, assignment or allotment of huge extent of land in favour of the private persons are certainly unconstitutional. If such lands are allotted for the profit of the private individuals, this Court is certainly painful and able to visualize that, the State is not acting in the interest of the public at large and failing in its duty to achieve the Constitutional principles of reaching equality in status both socially and economically.
34. The Constitutional perspectives are to secure equality both socially and economically amongst the citizen. The State has to thrive hard to achieve the Constitutional goals. Such being the expectation and the dictum of the Constitution, this Court has no hesitation in holding that, assignment or allotment of huge extent of land in favour of private persons are not only causing infringement to the Constitutional rights of the citizens at large, but it curtails the Constitutional principles to be reached and achieved. The State if acts contrary to the Constitutional principles, all such policies against the interest of the public is to be declared as unconstitutional.
35. Undoubtedly, the Government has got prerogative in taking policy decisions. However, if such policy decisions are taken contrary to the Constitutional principles and ethos then the judicial review also is permissible. If the basic principles including the rights of the citizens at large are in stale, then the Constitutional Courts have no other option except to interfere with all such decisions taken by the State, which all are violative of the basic principles and causing infringement of the rights of the citizens at large. Assignments undoubtedly can never be a right of a citizen. Assignment of Government poramboke lands to be made strictly for the benefit of the people and in order to improve the status both economic and socially to the citizen. Normally such assignments and allotments of lands are provided to the poor landless people by implementing various schemes by the Government. However, the trend of allotting such huge extent of land in favour of certain private persons are being developed which all are mostly on extraneous considerations and more specifically, on favoritism and nepotism. Such a decision taken by the State can never be construed in consonance with the principles of the Constitution. Undoubtedly, State can assign lands for industrial developments. However, there must be some uniformity and consistency in such policies.
36. The assignment of land must be only for the purpose of the development of the people at large and the same can be done to the poor landless people or for implementation of the public schemes or atleast to the institutions which all are non-profitable and purely serving at free of cost for the development of our great Nation. All such criterias are to be considered, while assigning public lands in favour of the private individuals. In the absence of any such consideration by the State, it is to be construed that the State has not acted by following the principles enunciated in the Constitution.
37. Informations are provided to this Court that the practice of assigning /allotting larger extent of land in favour of private institutions have been undertaken by the State in some occasions. However, the Government has to decline all such requests made by the private institutions, which all are profit making. If the profit making institutions are allotted/assigned with such valuable Government poramboke lands, this Court is afraid that the welfare policies can never be implemented in favour of all poor downtrodden, middle class and other sector of the people, who all are aspiring to secure the minimum level of social status and economic status by hard work. If this Country is neglecting the Constitutional rights of those citizens, who are not in a position to achieve economic status on par with other people, then we are failing in our duty to secure the objectives of the Constitution for the past many decades. The vision of the Constitution and the Constitutionalism well expressed are to be honoured and the State cannot have any authority to violate the principles of the Constitution and thereby, causing infringement of the rights of the public at large.
38. This Court would like to ask the moot question, what right the private institution has got to seek assignment or allotment of the Government poramboke land with the Government. If such a request is made by a poor person, whether the Government will consider the same or not ?. Certainly, the State will not grant such assignments independently to all other common citizen. Contrarily, such assignments are granted in favour of few citizens who all are capable and who all are able to influence the State or secure such assignment in their favour for profit making on favoritism and nepotism. When the State is declining the assignment or allotment of land for the private persons at large, the said benefit cannot be extended to the private institution or the persons who all are running profit making institutions across the Country.
39. At this juncture, this Court would like to remind that such circumstances would be a great discrimination warranting an action under Article 14 of the Constitution of India.
Let us examine the power of the State to assign the land in favour of the individual at free of cost and the right of the individual to claim assignment or allotment of public land at free of cost. When the Preamble of the Constitution reads, "We the People of India", resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all such Citizens. Justice, Social, Economic and Political Equality of Status and opportunity, this Court is of an undoubted opinion the rest of the Articles and the Constitution as a whole is to be interpreted in its spirit and the soul of the Constitution can never be diverted or diluted.
40. This Court is witnessing large extent of encroachments of public lands, water bodies and water resources as well as the State itself is assigning vast extent of land in favour of few individuals on various grounds and mostly not in consonance with the Constitutional Principles and Ethos. Thus, the State also must keep restraint in assigning vast extent of lands in favour of few individuals on certain extraneous considerations or based on Favoritism and Nepotism. The State assigning lands in favour of certain institutions, which all are being run for commercial purposes. Undoubtedly and acceptedly Education in our great Nation is being commercialized and therefore, such institutions with their power is attempting to get assignment of public lands either by paying pittance of money or at free of cost. Those institutions knowingly not serving for the society at free of cost. Those institutions are undoubtedly minting money for their personal gains. If the State part with the public land in favour of those institutions for their personal gains, this Court is of the concrete opinion that such actions are not only violation of the Constitutional principles, but it is a hard hit on the very soul and spirit of the Constitution.
41. The Concept of Equality as envisaged as under Article 14 of the Constitution of India is a positive concept, which cannot be enforced in a negative manner. When any authority is shown to have committed an illegality or irregularity in favour of any individual or group of individuals other cannot claim the same illegality or irregularity on the ground of denial thereof to them. Thus, the constructive interpretation of Article 14 is unambiguous and the spirit of Article 14, cannot be enforced in a negative manner. A wrong, if at all committed by the State or the executives, the same cannot provide a right under Article, to extend the same benefit in favour of other individuals, who all are similarly placed. Thus, the constructive interpretation of the spirit of Article 14 is to be looked into. A bad precedent will not constitute a right under Article 14 to claim similarity or otherwise. Mostly by citing one precedent occurred longback is forming a source for committing another illegality. For instance, by citing assignment of land to the educational institutions by the State at free of cost or for a meagre amount is a ground for the other institutions to claim the similar benefit of assignment of public land in their favour. Such a concept or interpretations is unknown to the Constitutional principles. That is the reason why, we have to arrive a conclusion that the concept of equality can never be enforced in a negative manner.
42. Democratically conceived, Constitutionalism stands for the supremacy of law and not of the individuals. Liberal Constitutionalism emphasises that ruler's act 'on the basis of law' or 'in the name of the law' this is the 'rule of law'. The laws rule not persons, authorities, or administrators. Constitutionalism, thus, imbibes the principles of Nationalism, Democracy, and limited Government. It may be identified with the system of “divided power” between the “Government” and the “governed”. In other words of Friedrich, the main objects of Constitutionalism “are to limit the arbitrary action of the Government, to guarantee the rights of the governed, and to define, then operation of the sovereign power.”
43. Constitutionalism as a positive dimension apart from curtailment of powers. Constitutionalism in its positive dimension is the citizen right to good governance and prompts concerned Government authorities to promote the welfare of the people and move towards the achievement of constitutional goals. This positive dimension is also reflected in the methodology adopted to curtail the powers under Constitutionalism by incorporating a bill of rights. The State has to strive towards creation of an atmosphere where the citizens can exercise their rights freely without any threat.
44. Article 38 of the Constitution of India enumerates State to secure a social order for the promotion of welfare of the people, which reads as under:
“State to secure a social order for the promotion of welfare of the people.— (1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.
(2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.”
45. When Article 38 directs the State to minimize the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, this Court is of an opinion, how it would be right on the part of the State to part with vast extent of public land in favour of few individuals or individual institutions, which all are running for profit, more specifically, commercial institutions. The State is paving way for such commercial institutions to accumulate wealth and thereby depriving the poor to get their right of livelihood or to achieve the goal of equality in Status both economically and socially. Thus, the very action of the State in assigning such vast extent of land in favour of few educational institutions or to any other institutions, are definitely infringing the rights of the citizen at large and affects the very principles enunciated in the Constitution.
46. Let us take an example, where the State at free of cost or by collecting minimum cost is allotting huge extent of public land. On the other hand, the very same State is evicting the poor persons, who all are encroached one or two cents of land in a Government land. When the State is actively initiating steps to evict all such encroachers, who encroached the Government land to the minimum extent of one or two cents for their livelihood, on what basis, the State is justified in assigning or allotting huge extent of land to these commercial institutions either at free of cost or by collecting meagre amount? Apparently, such an action is discriminatory. Apparently, such an action reflects the unconstitutionalism being adopted by the State towards its citizen. The State being constituted by 'We the People of India', the persons, who are governing must keep in mind that the Will of the people alone should prevail and the policy decisions taken by the State must be in consonance with the Constitutional principles and Ethos.
47. In the State of Tamil Nadu, over the time, large extent of lands are assigned and allotted in favour of few individuals and to the educational institutions and to the other institutions. Those institutions are visibly profited and commercializing the Government land, which was assigned or allotted in their favour. Such an action can never be permitted by 'We the People of India'. Such a decision taken by the State is opposed to public policy and very much opposed to the Constitutionalism. Thus, a definite policy and guidelines are required for the purpose of assigning or allotting lands in favour of individuals and the institutions, which all are profit making.
48. India being developed as a Nation of transparency by enacting Right to Information Act and other related statutes, this Court is of an opinion that assignment of vast extent of land to the individuals must be based on certain definite principles and can never be granted at the whims and fancies of a State and its authorities. The reasons may be provided by the State for assigning the land. However, those reasons must be in consonance with the Constitutional Principles and must be in the interest of the public at large. In this regard, the State has to issue certain guidelines, enabling the executives to follow the same scrupulously and in order to avoid all such Favoritism and Nepotism. In the absence of any such guidelines or a definite policy, there is a possibility of abuse of power by the executives in submitting wrong proposals based on some filmsy reasons, which may seem to be attractive, but definitely, against the Constitutional principles. In order to avoid all such discrepancies and illegalities, the State is bound to formulate the definite policy for the purpose of assigning and allotting lands in favour of the private individuals.”
49. The learned Additional Advocate General cited the judgment of the Hon'ble Supreme Court of India in the case of Suresh Chand Gautam Vs. State of Uttar pradesh & others, reported in (2016) 11 SCC 113 and the relevant paragraph Nos.37,38 and 39 are extracted hereunder:-
“37. In Halsbury's Laws of England, 4th Edn., Vol. 1, p. 111 it has been stated:
“89. Nature of mandamus.—The order of mandamus [Lee District Board v. LCC, (1899) 82 LT 306; R. v. Marshland Smeeth and Fen District Commissioners, (1920) 1 KB 155 (DC)] is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation, or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right [R. v. Archbishop of Canterbury and Bishop of London, (1812) 15 East 117 at p. 136 : 104 ER 789] ; and it may issue in cases where, although there is an alternative legal remedy yet that mode of redress is less convenient, beneficial and effectual [R. v. Bank of England, (1819) 2 B & Ald 620 at p. 622 : 106 ER 492; R. v. Thomas, (1892) 1 QB 426 (DC)] .”
38. This Court in State of Kerala v. A. Lakshmikutty [State of Kerala v. A. Lakshmikutty, (1986) 4 SCC 632 : (1986) 1 ATC 735] , while dealing wi
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th the concept of mandamus, opined thus: (SCC p. 654, para 34) “34. … It is well settled that a writ of mandamus is not a writ of course or a writ of right, but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the court will only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance.” 39. In Umakant Saran v. State of Bihar [Umakant Saran v. State of Bihar, (1973) 1 SCC 485] , the Court referred to its earlier decision in Rai Shivendra Bahadur v. Nalanda College [Rai Shivendra Bahadur v. Nalanda College, AIR 1962 SC 1210 : 1962 Supp (2) SCR 144] and observed that: (Umakant Saran case [Umakant Saran v. State of Bihar, (1973) 1 SCC 485] , SCC p. 488, para 10) “10. … in order that mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance.” 50. Relying on the said judgment, the learned Additional Advocate General contended that it is a precondition that the writ petitioner must establish legal right for the purpose of considering the relief. As assignment of Government land can never be considered as a legal right, the writ petitioner is not entitle for any relief in the present writ petition. This Court is of the considered opinion that, the writ petitioner submitted an application for assignment of Government poramboke land. The Government rejected the same on the ground that the said land is to be utilized for the purpose of public welfare by constructing multipurpose sports stadium and the land was already handed over to the 3rd respondent / Sports Development Authority of Tamil Nadu. 51. Under these circumstances, this Court has no hesitation in holding the writ petitioner has not established even a semblance of legal right so as to consider the relief as such sought for in the present writ petition and an order of rejection passed by the first respondent is in accordance with law and no infirmity as such. The writ petitioners also informing this Court they have not encroached upon the land and it remains as a vacant land. In this view of the matter the following orders are passed:- 1. The relief as such sought for in the present writ petition stands rejected. 2. The respondents are directed to protect the Government poramboke land in question, if necessary, by fencing the same and accordingly, implement the public welfare scheme as approved, by constructing multipurpose sports stadium through the 3rd respondent without any undue delay. 3. The first respondent is directed to review all such assignments/allotments of Government poramboke lands, water bodies and water resources already made in favour of private institutions/individuals across the State, including the writ petitioner in respect of the assignment of the land to an extent of 98.80 acres and identify all such assignments which all are violative of the Revenue Board Standing Orders, violations of conditions imposed, violations of the Government orders and policies etc., If any irregularities or illegalities are identified in respect of those assignments/allotments of Government lands, water bodies and water resources, suitable actions are to be initiated to cancel all such illegal or irregular assignments and restore the public property in favour of the Government and utilize the same for the welfare of the public and to implement the public schemes by following the procedures contemplated. 4. The first respondent is directed to issue suitable circulars/instructions to all the District Collectors concerned to verify and review all the assignments already granted in favour of private individuals, private institutions etc., and submit the report to the Government, based on which the first respondent shall initiate all further actions by following the procedures contemplated under law. 5. The respondents 1 and 2 are directed to ensure that encroachments in respect of the land in question in the present writ petition are also removed by the 2nd respondent by following the procedures contemplated under the Tamil Nadu Land Encroachment Act 1905, enabling the 3rd respondent to implement the public welfare scheme of the construction of multipurpose sports stadium for the benefit of the people at large. 52. With these directions, the writ petition stands disposed of. However there shall be no order as to Costs. Consequently, connected miscellaneous petitions are closed. 53. Post this matter for reporting compliance after four weeks on 04.03.2019.