IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 18127 of 2011 For Approval and Signature:
HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================== =============== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as 4 to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================== =============== PARYAVARAN MITRA(JANVIKAS)THRO PROG.DIRECTOR MAHESH PANDYA - Petitioner(s) Versus UNION OF INDIA,THRO THE SECRETARY & 5 - Respondent(s) ========================================== =============== Appearance :
MR AMIT M PANCHAL for Petitioner(s) : 1, MR HRIDAY BUCH for Respondent(s) : 1 - 2.
MR.P.K.JANI, GOVERNMENT PLEADER with Mr. Rashesh Randani, AGP for Respondent(s) : 3, None for Respondent(s) : 4, 6, SINGHI & CO for Respondent(s) : 5, ========================================== =============== HONOURABLE THE ACTING CHIEF JUSTICE CORAM :
MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :27/06/2012 CAV JUDGMENT (Per : HONOURABLE MR. JUSTICE J.B.PARDIWALA) By way of this petition under Article 226 of the Constitution, the petitioner, a non-governmental organisation working on socio environmental issues, has challenged the manner, the method and the mode in which the State Government allotted land admeasuring 24021.78 hectare in favour of respondent No.5 Archean Chemical Industries Private Limited at Bhuj for a period of 10 years on lease on rental value of Rs. 36,03,267/- per annum. It also appears from the pleadings and the reliefs prayed for in the petition that the petitioner has also raised two more issues, one with regard to scrapping of the Working Plan 2009 being in violation of the Environmental Impact Assessment Notification 2006, and secondly the mining activities within the protected area without environmental clearance, contrary to the judgments of the Supreme Court.
2. At the very outset, learned counsel Mr. Amit Panchal appearing for the petitioner submitted that he would be pressing this petition only to the extent so far as the grant of land to respondent No.5 Archean Chemical Industries Private Limited is concerned. So far as the other two issues are concerned i.e. scrapping of the Working Plan 2009 and the mining activities within the protected area without environmental clearance, he would undertake appropriate legal remedy before the appropriate forum and for this purpose he sought permission of this Court. We clarify that so far as the above two issues are concerned, it will be open for the petitioner to initiate appropriate legal remedy available under the law before the competent forum.
3. We therefore, proceed to consider the case of the petitioner in so far as the land allotted in favour of respondent No.5 is concerned.
4. Case of the petitioner:
It is the case of the petitioner that the Collector, Kutch vide order dated 5th March, 2010, allotted land admeasuring 24021.78 hectare in favour of respondent No.5 at a throw away price by fixing rent of Rs. 36,03,267/- for a period of ten years lease. According to the petitioner, this would suggest that the land in question is given to respondent No.5 by the State Government at Rs. 150/- per hectare on the conditions as indicated in the order dated 5th March, 2010. It is the case of the petitioner that if Rs. 36,03,267/- is divided by 24021.78, it would come to Rs. 150/- per hectare, which would mean that for 10,000 square meter which is equal to 1 hectare, Rs. 150/- is the price for the respondent No.5, which ultimately comes to 1.5 paise per square meter. According to the petitioner, the State Government and its authorities, namely the Collector, Kutch in the present case has no right in law to alienate, transfer or distribute the land of Kutch and its natural resources without following a fair and transparent method, consistent with the fundamental of Article 14 of the Constitution of India. According to the petitioner, the Collector, Kutch vide order dated 5th March, 2010 could not have allotted such a huge parcel of land without making it public or without putting it to auction so that other persons interested in the project would also have come forward with a better proposal beneficial to the revenue of the State Government.
4.2 Learned Counsel Mr. Panchal vociferously submitted, relying on the decision of the Supreme Court in the case of Centre for Public Interest Litigation and ors. Vs. Union of India and ors, reported in (2012) 3 SCC 1, that the action of allotting a huge parcel of land in favour of respondent No.5 without auction is impermissible in law. The sum and substance of the submission of Mr. Panchal, learned counsel appearing for the petitioner is that the State Government could not have parted with its natural resource in favour of an individual, namely respondent No.5 without following a fair and transparent method of allotment in the vicinity of the Banni Grasslands, and the action is in breach of Article 14 of the Constitution of India. According to Mr. Panchal, the action of the State Government of distribution of State largessee at a throw away price in favour of respondent No.5 is opposed to and is in breach of the principles enunciated by the apex Court in the following cases:-
(a) Centre for Public Interest Litigation and ors. Vs. Union of India and ors., reported in (2012) 3 SCC 1;
(b) ITC Limited Vs. State of Uttar Pradesh, reported in (2011) 7 SCC 493;
(c) Noida Entrepreneurs Association Vs. Noida, reported in (2011) 6 SCC 50;
(d) Karnataka Industrial Areas Development Board Vs. Prakash Dal Mill, reported in (2011) 6 SCC 714;
(e) Humanity Vs. State of West Bengal, reported in (2011) 6 SCC 125; and
(f) Akhil Bhartiya Upbhokta Congress Vs. State of Madhya Pradesh, reported in (2011) 5 SCC 29.
Mr. Panchal specially laid emphasis upon few observations made by the Supreme Court in the case of Center for Public Interest Litigation and ors. Vs. Union of India (supra), which are reproduced below:-
74. At the outset, we consider it proper to observe that even though there is no universally accepted definition of natural resources, they are generally understood as elements having intrinsic utility to mankind. They may be renewable or non renewable. They are thought of as the individual elements of the natural environment that provide economic and social services to human society and are considered valuable in their relatively unmodified, natural, form. A natural resource's value rests in the amount of the material available and the demand for it. The latter is determined by its usefulness to production. Natural resources belong to the people but the State legally owns them on behalf of its people and from that point of view natural resources are considered as national assets, more so because the State benefits immensely from their value.
75. The State is empowered to distribute natural resources. However, as they constitute public property/national asset, while distributing natural resources, the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest. Like any other State action, constitutionalism must be reflected at every stage of the distribution of natural resources. In Article 39(b) of the Constitution it has been provided that the ownership and control of the material resources of the community should be so distributed so as to best sub-serve the common good, but no comprehensive legislation has been enacted to generally define natural resources and a framework for their protection. Of course, environment laws enacted by Parliament and State legislatures deal with specific natural resources, i.e., Forest, Air, Water, Costal Zones, etc.
85. As natural resources are public goods, the doctrine of equality, which emerges from the concepts of justice and fairness, must guide the State in determining the actual mechanism for distribution of natural resources. In this regard, the doctrine of equality has two aspects: first, it regulates the rights and obligations of the State vis-`-vis its people and demands that the people be granted equitable access to natural resources and/or its products and that they are adequately compensated for the transfer of the resource to the private domain; and second, it regulates the rights and obligations of the State vis-`-vis private parties seeking to acquire/use the resource and demands that the procedure adopted for distribution is just, non-arbitrary and transparent and that it does not discriminate between similarly placed private parties.
89. In conclusion, we hold that the State is the legal owner of the natural resources as a trustee of the people and although it is empowered to distribute the same, the process of distribution must be guided by the constitutional principles including the doctrine of equality and larger public good.
95. This Court has repeatedly held that wherever a contract is to be awarded or a licence is to be given, the public authority must adopt a transparent and fair method for making selections so that all eligible persons get a fair opportunity of competition. To put it differently, the State and its agencies/instrumentalities must always adopt a rational method for disposal of public property and no attempt should be made to scuttle the claim of worthy applicants. When it comes to alienation of scarce natural resources like spectrum etc., it is the burden of the State to ensure that a non-discriminatory method is adopted for distribution and alienation, which would necessarily result in protection of national/public interest.
96. In our view, a duly publicised auction conducted fairly and impartially is perhaps the best method for discharging this burden and the methods like first-come-first-served when used for alienation of natural resources/public property are likely to be misused by unscrupulous people who are only interested in garnering maximum financial benefit and have no respect for the constitutional ethos and values. In other words, while transferring or alienating the natural resources, the State is duty bound to adopt the method of auction by giving wide publicity so that all eligible persons can participate in the process.
4.3 Notice was issued upon the respondents and they have opposed this petition by filing their respective affidavit-in-reply.
5. Stand of respondent No.5 (beneficiary):
5.1 It is the case of respondent No.5 that they were desirous of manufacturing salt based marine chemicals, specially the Sulphate of Potash, Gypsum & Bromine from concentrated sea water brine. Sulphate of Potash is green fertilizer and the same is preferred for cultivation of vegetables, fruits, cotton etc. As respondent No.5 was keen to develop a project for manufacture of sulphate of potash, it requested Central Salt and Marine Chemicals Research Institute (CSMCRI), a Council of Scientific and Natural Research (CSIR) to grant licence for utilising the knowhow developed by it for the manufacture of Sulphate of Potash. Accordingly, CSMCRI - CSIR and respondent No.5 entered into an agreement for licensing of knowhow.
5.2 For the aforesaid project, respondent No.5 required concentrated sea water brine. The same is available in Greater Rann of Kutch in abundance with continuous replenishment, as evaporation of sea water occurs in the said area. Accordingly, respondent No.5 during Vibrant Gujarat 2005 Programme made a request to the Government of Gujarat for allotting a portion of the suitable land (40,000 hectare) in the Greater Rann of Kutch as the concentrated brine is generally found/available in the shallow depths in the Greater Rann of Kutch. Other industrial units manufacturing marine chemicals are also situated in the Greater Rann of Kutch.
5.3 It is the case of respondent No.5 that the Government of Gujarat in the year 2008, allotted 24,021.78 hectare of land out of the aforesaid land applied for and a lease deed in respect of the same was entered into with the Government of Gujarat dated 14.7.2008. It is the stand of respondent No.5 that the land allotted by the Government of Gujarat and in possession of respondent No.5 is not situated within the Banny Grasslands area and neither the land allotted by the Government is declared as a Sanctuary or National Park or Conservation Reserve within 1 K.M or even within 5 K.M from the land allotted by the Government.
5.4 For setting up of the aforesaid project for manufacture of Sulphate of Potash and other marine chemicals, respondent No.5 had also applied to the Ministry of Environment and Forests, Government of India for environmental clearance. The Ministry of Environment and Forests, vide its letter dated 2nd September, 2011, granted environmental clearance to respondent No.5 for setting up of the aforesaid project for Sulphate and Potash and other marine chemicals.
5.5 It is also the case of respondent No.5 that 24,021.78 hectare of land in the Greater Rann of Kutch was allotted on a lease at an annual rent of Rs. 36,03,267/- vide order dated 29th February, 2008 passed by the Collector, Kutch. As per the said order dated 29th February, 2008, respondent No.5 is also to pay Rs. 18,01,634/- annually, being Local Cess and Rs. 9,05,817/- annually, being Education Cess. Thus, under the said order respondent No.5 is to pay a total sum of Rs. 63,10,280/- annually in respect of the aforementioned lease, which works out to a rate of Rs. 262.68 per hectare or Rs. 2.62 per square meter.
5.6 It is also the case of respondent No.5 that during Vibrant Gujarat 2005, the company had signed a Memorandum of Understanding for the project of a total cost of Rs. 1200 crore and till the end of December, 2011, the company has invested Rs. 421.03 crore and almost 500 local workers are working at the plant.
6. Stand of the State Government:
6.1 Mr. P.K. Jani, learned Government Pleader appearing for the State of Gujarat submitted that the State Government granted the land by way of lease and not by way of outright sale in favour of respondent No.5 herein. The State Government, through the Collector, granted the land by way of lease wherein the proprietary right of the land remains with the State Government. State Government is entitled to take back the land in case of breach of any of the conditions of the lease- deed. Government may extend the lease on expiry of ten years or may not extend the lease. It would be within the discretion of the Government depending upon the facts and circumstances of the situation at the relevant point of time.
6.2 It is also the stand of the State Government that the decision to allot land in favour of respondent No.5 is being challenged after a long period of time. The land in the first phase admeasuring around 24,021.78 hectare was allotted way back in the year 2008, whereas the petition has been preferred after a period of 3 years. According to Mr. Jani, this petition should not be entertained solely on the ground of delay and laches.
6.3 The land was open and fallow and no agricultural activities were being carried out. The land is not even gaucher. According to Mr.Jani, it is impossible to undertake any agricultural operation on the land in question as the land contains high density of salt being adjacent to ocean. Mr. Jani submitted that prior to 1st May, 1960, the entire State of Gujarat was a part of old Bombay State. State of Gujarat came into existence with effect from 1st May,1960. From the year 1956, the State of Bombay had a policy of granting land for industrial purpose. Thereafter with the creation of the State of Gujarat with effect from 1st May, 1960, the successive Governments in the State of Gujarat laid much emphasis on the industrialisation. It is because of such efforts of the State Government. That over a period of time there has been rapid industrialisation in the State. In the State of Gujarat there are not only entrepreneurs or industrialists of the State of Gujarat, but there are also entrepreneurs or industrialists of other States and other countries too. Mr. Jani submitted that there, huge investments being made by the international communities in the State of Gujarat and it is because of these reasons that the State of Gujarat has become one of the pioneers and leading States in industrial activities in the country. The State of Gujarat is in forefront in industrial activities and it has given equal importance to agricultural activities and therefore, where in the country as a whole there is development of only 4 to 5 percent growth in agricultural activities, the State of Gujarat has more than 9% agricultural growth and development in agricultural sector, and it stands at top as a leading State in agricultural activities in the country. State of Gujarat has harmonized the agricultural activities and industrial activities with the object of creating a better life for the people of Gujarat and citizens of the country at large and because of such policy of the State Government in industrial activities as also in agricultural activities that the State of Gujarat has occupied a lead position in the country in terms of industrial growth and agricultural growth. He submitted that because of such policy of the State Government, the industrial activities in the State's economy has got a boost. The rapid development of industrial activities in the State of Gujarat, wherein different industries and variety of industrial activities have come in effect since last decade, has brought the economic welfare of the people of Gujarat and because of such policy of the State Government, employment is generated and industrial activities have advanced and accelerated the commercial activities in terms of banking activities, insurance activities, transport activities, infrastructural development, tourism and hotel activities and other activities which have grown by leaps and bounds in the State of Gujarat because of development of industries. Mr. Jani further submitted that land for Salt Industries was never given by auction. It is given only on lease basis since the time of British Empire and this system is followed by the Government of India and the State Government of Gujarat. Land is given on lease basis for salt production all over India. Therefore, rent is to be taken and not the price. Further the rent is to be recovered till the lease is continued. At different times, rent of land given on lease for salt was revised and fixed as shown below:-
1. G.R dated 6.10.1978 Rs. 3 per acre i.e. Rs. 7.50 per hectare
2. GR dated 22.7.1993 Rs. 30 per hectare
3. GR dated 10.10.2000 Rs. 300/- per hectare, which was revised to Rs. 150 per Ha vide GR dated 12.4.2001.
4. GR dated 3.2.2010 Rs. 300/- per Ha. and 10% increase at every year, which was revised to 10% increase at every three years vide GR dated 8.4.2011.
As per the prevailing policy land is to be given on lease. The lease rent per hectare in Gujarat was Rs. 150/- per annum as per G.R dated 10th October, 2000 when the land was given on lease to respondent No.5 company, while rent of lease in other States are as under.
1. State of Tamil Nadu - Rs. 12.35 per hectare
2. State of Orissa - Rs. 123.50
3. State of Andhra Pradesh - Rs. 123.50
4. State of Maharashtra - Rs. 49.40 Thus, it can be seen from the above statement that the lease rent is higher in Gujarat compared to other States of India. Moreover, the State Government has revised the lease rent from Rs. 150 to Rs. 300 per hectare with 10% hike is made after every three years as per Government Resolution dated 3rd February, 2010. Huge land is required for the Salt Industry and hence it cannot be given on a fixed price, but is being given on lease and rent is recovered. As per the guidelines of Government of India, not less than 100 acres of land is to be given for Salt Industries. In the facts of the present case coupled with above broad policy, the Collector was also guided by the fact that the land was sought for on lease. The land for salt production is given on lease basis on annual rent as decided by Government from time to time for a period of ten years and may be further extended on satisfactory fulfilment of conditions. There were three applicants for the land for salt production and their demands were as under:-
1. Archean Chemicals applied for 40,000 hectare of land
2. Solaris Chemtec Limited applied for 30,000 Acre of land
3. Agrocel Industries applied for 18,000 acre of land.
The land demanded by the above applicants was over lapping to each other. Therefore, opinion of the Industries Commissioner was called for to know as to how much land could be allotted as per priority. The Industries Commissioner visited the site on 13th October, 2006 and held a meeting with all the applicants and heard them. He also heard the representatives of various salt Associations. The office bearers of Indian Salt Manufacturers Association, Kutch Small Scale Salt Manufacturers Association and Saurashtra Salt Manufacturers' Association were called and heard. After hearing and holding meeting with all these persons on 5th February, 2007, the Industries Commissioner recommended as under:-
1. Archean Chemicals - 24,021.78 hectare
2. Solaris Chemtec 26,746 acre
3. Agrocel Industries 17,975 acre As per the recommendation of the Industries Commissioner, Government granted land admeasuring 24,021.78 hectare to Archean Chemicals for salt production for a period of ten years on lease basis at the annual rent of Rs.
150 per hectare, prevailing at that time. The land for salt production is given on lease basis to respondent No.5 after considering all aspects and after taking opinion of various agencies mentioned in the Government Resolution dated 10th October, 2000. Further, during Vibrant Gujarat 2005, respondent No.5 company had signed an MOU for the project worth about Rs. 1200 crore and the company has already invested Rs. 421.03 crore upto the end of December, 2011 and 500 local workers are working on the plant.
6.4 Mr. Jani also brought to our notice that the State Government in exercise of powers conferred by Section 3 of the Commission of Inquiry Act has appointed a commission of enquiry headed by Hon'ble Mr. Justice M.B. Shah, Former Judge of the Supreme Court of India, to probe into the allegations with regard to such allotment of lands levelled by the opposition in the State Legislative Assembly, which includes the land in question. According to Mr. Jani, the grievance voiced in the present petition is already a subject matter of enquiry by the Commission, which has been set-up vide Resolution dated 16th August, 2011, passed by the Legal Department of the State Government.
7. Analysis:
Having heard learned counsel for the respective parties and having gone through the materials on record, the picture that emerges may be summarised thus:
7.1 Respondent No.5 being desirous of manufacturing salt based marine chemicals, specially the Sulphate of Potash from concentrated sea water brine, requested the State Government for allotting a portion of the suitable land (around 40,000 hectare) in the Greater Rann of Kutch, as sea water brine is available in Greater Ran of Kutch in abundance with continuous replenishment as evaporation of sea water occurs in the said area. Record also reveals that other industrial units manufacturing marine chemicals, are also situated in the Greater Rann of Kutch. Government of Gujarat, as a part of its policy, invited industrialists from all parts of the country in the programme known as "Vibrant Gujarat". During Vibrant Gujarat 2005, respondent No.5 signed a Memorandum of Understanding for the project worth around Rs. 1200 crore and in the year 2008, land admeasuring around 24,021.78 hectare in the first phase came to be allotted and thereafter, respondent No.5 started its manufacturing process. Thereafter, in the year 2010, in the second phase, once again land came to be allotted. The allotment so far has been on the basis of a lease and not by way of an out-right sale in favour of respondent No.5. Record also reveals that respondent No.5 has invested around Rs. 421.03 crore upto the end of December, 2011 and around 500 workers are working at the plant.
8. It is no doubt true that the Supreme Court in its recent pronouncement in the case of Centre for Public Interest Litigation (supra) has led emphasis on the fact that a duly publicised auction conducted fairly and impartially is the best method for discharging the burden of the State to ensure that a non-discriminatory method is adopted for distribution and alienation of natural resources, which would necessarily result in protection of national/public interest and therefore, while transferring or alienating the natural resources, the State is duty bound to adopt the method of auction by giving wide publicity so that all eligible persons can participate in the process. The Supreme Court has quoted and relied upon many other judgments of the Supreme Court in this regard and one of those is the case of Kasturi Lal Lakshmi Reddy Vs. State of Jammu & Kashmir, reported in (1980) 4 SCC 1. In Kasturi Lal Lakshmi Reddy Vs. State of Jammu & Kashmir (supra), a three Judge Bench held that where any governmental action fails to satisfy the test of reasonableness and public interest and is found to be wanting in the quality of reasonableness or lacking in the element of public interest, it would be liable to be struck down as invalid. It further held that the government cannot act in a manner which would benefit a private party at the cost of the State; such an action would be both unreasonable and contrary to public interest. For example, government cannot give a contract or sell or lease out its property for a consideration less than the highest that can be obtained for it. Record reveals more particularly from the affidavit-in-reply filed by the Under Secretary to the Revenue Department dated 26th April, 2012 that as per the prevailing policy of the State Government, land for salt industry has never been given by auction but has been allotted only on lease basis with one of the terms and conditions to take back the land on expiry of lease or upon breach of any of the conditions of the lease deed. The rent was also fixed by the State Government as per its G.R dated 3rd February, 2010. We have also been shown the comparative rent per hectare so far as other States are concerned and we have noticed that the highest rent is in the State of Gujarat, being Rs. 150 per hectare, which is now revised to Rs. 300 per hectare with hike of 10% every three years. Besides this, we have also noticed that it is not the case wherein respondent No.5 preferred an application for allotment of land and based upon such an application the Government took decision to allow the land. It was the State Government who invited people from all over the country interested to start an industry or a project within the State of Gujarat and it is upon such an invitation way back in Vibrant 2005 that respondent No.5 signed a Memorandum of Understanding for a project worth Rs. 1200 crore. It is also not the case of any other party redressing any grievance that it was interested in the same land in question and was ready and willing to offer more price than what has been fixed by the Government. That is not even the case of the petitioner in the petition.
9. The facts of the present case are very much distinguishable with the facts of the case decided by the Supreme Court in Centre for Public Interest Litigation (supra). Thus, the only question for our consideration is as to whether the Government showed any undue favour to respondent No.5 and whether acted contrary to public interest. In this regard, we find para 22 of Kasturi Lal Lakshmi Reddy Vs. State of J & K (supra) very important. Kasturi Lal (supra) has been referred to and relied upon by the Supreme Court in Centre for Public Interest Litigation (supra) and therefore, it still holds the field. We would like to quote and rely upon the following observations of the Supreme Court in Kasturi Lal Lakshmi Reddy Vs. State of J & K (supra):-
"........ It is true that no advertisements were issued by the State inviting tenders for award of tapping contract in respect of these blazes; or stating that tapping contract would be given to any party who is prepared to put up a factory for manufacture of resin, turpentine oil and other derivatives within the State, but it must be remembered that it was not tapping contract simpliciter which was being given by the State. The tapping contract was being given by way of allocation of raw material for feeding the factory to be set up by the 2nd respondents. The predominant purpose of the transaction was to ensure setting up of a factory by the 2nd respondents as part of the process of industrialisation of the State and since the 2nd respondents wanted assurance of a definite supply of resin as a condition of putting up the factory, the State awarded the tapping contract to the 2nd respondents for that purpose. If the State were giving tapping contract simpliciter there can be no doubt that the State would have to auction or invite tenders for securing the highest price, subject, of course,to any of the relevant overriding considerations of public weal or interest, but in a case like this where the State is allocating resources such as water, power, raw materials etc. for the purpose of encouraging setting up of industries within the State, we do not think the State is bound to advertise and tell the people that it wants a particular industry to be set up within the State and invite those interested to come up with proposals for the purpose. The State may choose to do so, if it thinks fit and in a given situation, it may even turn to be advantageous for the State to do so, but if any private party comes before the State and offers to set up an industry, the State would not be committing breach of any constitutional or legal obligation if it negotiates with such party and agrees to provide resources and other facilities for the purpose of setting up the industry. The State is not obliged to tell such party; "Please wait. I will first advertise, see whether any other offers are forthcoming and then after considering all offers, decide whether I should let you set up the industry." It would be most unrealistic to insist on such a procedure particularly in an area like Jammu and Kashmir which on account of historical, political and other reasons, is not yet industrially developed and where entrepreneurs have to be offered attractive terms in order to persuade them to set up an industry. The State must be free in such a case to negotiate with a private entrepreneur with a view to inducing him to set up an industry within the State and if the State enters into a contract with such entrepreneur for providing resources and other facilities for setting up an industry, the contract cannot be assailed as invalid so long as the State had acted bona fide, reasonably and in public interest. If the terms and conditions of the contract or the surrounding circumstances show that the State has acted mala fide or out of improper or corrupt motive or in order to promote the private interests of someone at the cost of the State, the Court will undoubtedly interfere and strike down State action as arbitrary, unreasonable or contrary to public interest. But so long as theState action is bonafide and reasonable, the Court will not interfere merely on the ground that no advertisement was given or publicity or made or tenders invited."
10. There are two more reasons why we are not inclined to entertain this petition and grant the relief as prayed for by the petitioner.
First, undisputedly, the actual allotment of land took place in the year 2008 and thereafter, substantial investment was made by respondent No.5 for the project. For a period of 3 years, nobody questioned the allotment including the petitioner. The question which we need to answer is as to whether any relief can be granted as prayed for by the petitioner taking into consideration the delay and the equities which are created in favour of respondent No.5 as of today. The power of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. Persons seeking relief against the State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully satisfy the Court that the facts and circumstances of the case clearly justified the laches or undue delay on their part in approaching the Court for grant of such discretionary relief.
11. The delay rules apply to PILs also and if there is no proper explanation for the delay, even PILs are liable to be summarily dismissed on account of delay. In the case on hand, it is not in dispute that the petitioner claiming to be very conversant in ecology, approached the High Court only in 2011.
12. We are of the opinion that delay in this case is equally fatal. Respondent No.5 commenced its project in the year 2008 and by December, 2011 had already invested more than Rs. 400 crore providing employment to around 500 locals. There is no doubt that delay is a very important factor while exercising extra ordinary jurisdiction under Article 226 of the Constitution. We cannot disturb the third party interest created on account of delay solely on the ground that Government ought not to have allotted the land without putting the same to auction thereby inviting others also if interested in such a project.
13. Secondly, as brought to our notice, State Government in exercise of powers conferred by Section 3 of the Commission of Enquiry Act, has appointed a Commission of Enquiry headed by Hon'ble Mr. Justice M.B. Shah, Former Judge of the Supreme Court of India, to probe into the allegations with regard to such allotment of lands as levelled by the opposition party in the State Legislative Assembly, which includes the land in question.
14. In the aforesaid view of the matter, we find no merit in this petition and accordingly reject the same. However, in the facts and circumstances of the case, there shall be no order as to costs.
15. As observed in earlier part of our judgment, we reiterate that we have not gone into the merit of the other two issues, namely scrapping of the Working Plan 2009 and the mining activities within the protected area without environmental clearance. It would be open for the petitioner to undertake appropriate legal remedy so far as these two issues are concerned before the appropriate forum under the law.
(Bhaskar Bhattacharya, Actg. C.J.) (J.B. Pardiwala, J.) */Mohandas