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Judgment
Hardayal Hardy, J.—In this writ petition under Article 226 of the Constitution, 66 petitioners have joined together to challenge what is described in the petition as illegal and arbitrary allotment of bigger size ware-housing plots by Delhi Development Authority (respondent No. 1) to certain individuals and firms who are impleaded as respondents Nos. 5 to 82 in the petition. The impugned allotment of plots in the Naraina Industrial Area developed by respondent No. 1 and is covered by the Zonal Development Plan for Zone B-7 (Naraina Village Area) under the Master Plan for Delhi. It is contended that the said allotment has been made in violation of the afore-mentioned Zonal and Master Plans and is also an infraction of the fundamental rights of the petitioners guaranteed under Article 14 of the Constitution.
Respondent No. 1 which, for the sake of brevity, will hereafter be described as the "Authority" or the "D.D.A.", is a statutory authority under the Delhi Development Act 61 of 1957, empowered to dispose of land acquired by the Central Government for the purpose of planned development of Delhi. Respondent No. 2 is the Land Allotment Advisory Committee constituted for the purpose of advising the Lieut. Governor (respondent No. 4) who is also the ex-officio Chairman of respondent No. 1. The Chief Executive Counselor of the Metropolitan Council is the nominated Chairman of this Committee.
Briefly stated, the petitioners'' allegations are that petitions Nos. 1 to 63 and respondents Nos. 5 to 82 are iron and steal merchants carrying on business in Motia Khan Area, New Delhi, which is one of the several area where iron and steel merchants are carrying on their business in compact groups. Most of these merchants are members of one or the other of the following four associations:
(i) Iron and Steel Scrap (Eabar) Merchants Association (Regd.) Motia Khan, New Delhi.
(ii) Nav Nirman Co-operative House Building Society Ltd., Motia Khan, New Delhi.
(iii) Motia Khan Co-operative House Building Society Ltd., Motia Khan, New Delhi.
(iv) Iron Merchants Association (Regd.) Motia Khan, New Delhi.
The first three association (petitioners Nos. 64 to 66) will hereafter be referred to as petitioner-associations, while the fourth association (respondent No. 83) will be described as respondent-association. Petitioners 1 to 31 are members of petitioner-association No. 64. Petitioners 32 to 42 are members of the petitioner-association No. 66 while petitioners 43 to 63 are members of petitioner-association No. 65.
On 1-9-1962, the Master Plan prepared by the D.D.A. u/s 7 of the Act and approved by the Central Government under sections 9 and 10 of the Act came into operation. On 24-7-1967, the Central Government approved the Zonal Development Plan for Zone B-7 (Naraina village Area) u/s 9(2) of the Act. The said Zonal Development Plan provides for 257 acres of land for Service Industries.
By means of an advertisement published in the leading daily newspapers of Delhi dated October 29, 1965, respondent No. 1 invited applications in a prescribed form for the allotment of industrial plots of sizes varying from 1/8 acre to 1 acre (approximately) in different industrial areas from those industrial units which were located in non-conforming areas of Delhi, i.e., areas for which the Master Plan has prescribed land use other than industrial.
In November, 1965, members of all the afore-mentioned four associations of Motia Khan including petitioners 1 to 63 and respondents 5 to 82, applied for the allotment of ware-housing plots of the size 1/8 acre and 1/4 acres, i.e., about 600 and 1200 square yards each, in the Rewari Industrial Line Ware-housing Scheme.
On 20-8-1966, respondent No. 2 passed a resolution recommending allotment of plots of 1/8 acres each to the members of the respondent-association in the Naraina Industrial Areas, Phase II, which is three miles nearer the main city of Delhi while the members of the three petitioner-associations were recommended for allotment of plots in the far-flung area comprised in Rewari Line Industrial Scheme, Phase II, on the ground that there would not be sufficient number of plots in the later area. The petitioner-associations protested against the action of respondent No. 2 with the result that on 4-3-1967 and 16-5-1968 the said respondent passed two other resolutions. By its last-mentioned resolution the members of the petitioner-associations were also allotted plots in the Naraina Industrial Area. But while they were allotted plots ranging between 125 of 333 square yards in area the members of the respondent-association were uniformly allotted plots measuring 450 square yards each. On 18-6-1968, the Land Sales Officer of the D.D.A. issued letters to individual applicants informing them about the area of plot allotted to each of them pursuant to the decision of respondent No. 2 dated 16-5-1968.
On 8-12-1969, the members of the three petitioner-associations were called upon to deposit the second installment of the premium for the smaller size plots in Naraina Industrial Area, which was paid by them under protest.
On 16-3-1970, respondent No. 1 held the draw of lots whereby specific plots of 450 square yards in area were allotted to each of respondents 5 to 82 and smaller plots were allotted to each of the petitioners 1 to 62. The petitioners have annexed to the petition a table (Annexure XXIV) showing the area under occupation of each petitioner in Motia Khan, the area applied for and allotted to each as also the specific number of the plot in accordance with the draw. They have also annexed another table (Annexure XXV) giving similar particulars in respect of respondents 5 to 82. Between 16-5-1968 and 16-3-1970, the petitioners sent several representations and letters of protest to various authorities including the Lieut. Governor, the Union Home Minister and the Central Minister for Works, Housing and Urban Development; but without any effect.
On 25-3-1970, they filed the present petition and obtained an ex-parte order of stay of operation of the results of the draw of lots held on 16-3-1970 which, after service of notice on the respondents, was confirmed till the decision of the petition.
The petitioner contend that all the three resolutions dated 20-8-1966, 4-3-1967 and 16-5-1968 are illstal, arbitrary, discriminatory and mala fide and are, therefore, liable to be struck down. The grievance of the petitioners is that although the members of the four associations were similarly placed in every respect and had alike applied for allotment of plots in one area, respondents 5 to 82 have been unduly preferred and each of them has been allotted a plot measuring 450 square yards adjacent to the main road, the petitioners have been allotted smaller size plots in the interior of the area.
The main affidavit in opposition has been filed on behalf of respondents 1 to 4 by Shri M.L. Mongia, Secretary of the D.D.A. An affidavit has also been filed by Shri Bose Mullick, Vice-Chairman of the D.D.A. in reference to the allegations concerning him. Shri Kanayalal, Secretary of the respondent-association and one Shri Dharam Vir Bah, have also filed separate affidavits supporting the action of respondents 1 and 2.
In the affidavits filed in opposition to the petition, besides objections on merits, certain preliminary objections have been raised to the maintain ability of the petition. Before discussing the objections on merits, we would like to deal with the preliminary objections on which a great deal of emphasis has been laid by the learned counsel for the respondents.
The first objection is that each petitioner has a separate and independent cause of action arising from the allotment of plot to him. A joint petition by 63 petitioners (leaving aside the other three petitioners who being associations could not be joined at all), is not maintainable. Reliance for this argument is placed on a decision of the Punjab High Court in Revenue Patwaris Union Punjab and others v. State of Punjab, (A.I.R. 1962 Pun (55) where the learned Judges (K.L. Gosain and A.N. Grover JJ.) following the decision of Rajagopala Ayyangar J. in S.M. Muhammad Ibrahim v. The Deputy Commercial Tax Officer, Pudukottai (A.I.R. 1956 Mad 626 and M.S. Ganapathi Nadar and Sons Factory and Others Vs. The State of Madras and Others, , held that the fact that the relief prayed for by the several individuals, each of whose individual right was alleged to have been invaded improperly by the impugned order, was grounded on a common objection, did not afford any basis for a joint writ petition by several petitioners aggrieved by similar orders.
The facts in the case decided by the Punjab High Court and also in the two cases before Rajagopala Ayyangar J. of Madras High court are entirely different. Here the petitioners'' grievance does not arise from any right of an individual having been invaded improperly by the impugned resolutions. The petitioners in this case claim to have been discriminated against as a class. They have a common and joint interest in the subject-matter in controversy.
We were next referred to two decisions of Allahabad High Court in Uma Shankar Rai and Others Vs. Divisional Superintendent, Northern Railway, Lucknow and Others, and Chandra Kishore and Others Vs. State of Uttar Pradesh and Another, . The former is a Bench decision of V.D. Bhargava and R.A. Misra JJ. where the learned Judges relying on the statement of law in Halsbury''s Laws of England (Hailsham Edition, Vol. 9, page 783, paragraph 1325) held that two or more persons cannot join in a single application for a writ of mandamus to enforce separate claims. There must be separate writs.
The above statement of law has been repeated in Volume XI, page 83, paragraph 155 of Halsbury''s Laws of England (Simond''s Edition). It, however, admits of an exception and a joint application is permissible against a common or class injury done by a common order or orders. This exception was noticed by Kumarayya J. in re : In Re: Atmakuri Gopalkrishnarao and Others and was also referred to in the case of Ganesh Novak v. Land Acquisition Collector, (65 Calcutta Weekly Notes 908. Both these decisions were followed by B.N. Banerjee, J., in Gadadhar Ghosh Vs. State of West Bengal, where a petition by fifty three individuals challenging a notification u/s 4 and a declaration made u/s 6 of the Land Acquisition Act, 1894, was held maintainable although all the petitioners did not claim to be jointly interested in all the plots under acquisition and were probably also entitled to separate plots of land under different rights.
In fact the maintainability of a joint petition in certain circumstances cannot be said to have been disapproved even by the Division Bench of Allahabad High Court in the case of Uma Shankar Rai and others which has been noticed by us. V.D. Bhargava, J., who wrote the judgment of the Bench himself referred to the view of law as stated by Ferris in his extraordinary Legal Remedies (1926 Edition) at page 275 on the basis of some American decisions. It was there said:-
The rule is that persons having a common and joint interest in the subject-matter in controversy may be joined as realtors while those having separate and distinct rights may not.
In Chandra Kishore and others, which was decided by V.G. Oak, J., every one of the 12 petitioners had a distinct and separate interest in operating his motor vehicle under his own permit. There was no question of discrimination against the petitioners as a class nor was there any joint or common injury as such. Even then the irregularity was held to be curable by the petitioners being required to pay up the prescribed court fee as if 12 separate writ petitions had been filed.
Mr. Frank Anthony, learned counsel for the petitioners, cited on the other hand, another decision of Allahabad High Court in Haji Abdul Qayum Vs. Keshav Saran and Others, where V. Bharagava, J., (as his Lordship then was), sitting with B.D. Gupta, J. over-ruled a preliminary objection raised on the ground that the petition filed jointly by more than one person, should not have been allowed. It was held that all the 16 writ petitioners had a common cause of action and were seeking a common relief arising out of identical facts. There was no reason why they should not all join together and seek the issuance of one single writ so as to serve the object of all the petitioners. The same view was taken by a learned Single Judge of that High Court in N.C. Upadhya and Others Vs. State of Uttar Pradesh and Others, where a joint petition filed by fifty petitioners who were tenants of the bungalows sought to be acquired, was held to be maintainable. There is thus no merit in this preliminary objection which is accordingly repelled.
The next preliminary objection is one the ground of laches and delay and is sought to be supported by the decisions of the Supreme Court in Rabindranath Bose and Others Vs. The Union of India (UOI) and Others, and Ms Tilockchand Motichand and others v. H.B. Munshi, Commissioner of Sales Tax, Bombay and another ( AIR 1970 SC 898). It was argued that the original decision regarding allotment of plots to respondents 5 to 82 in Naraina Industrial Area was taken as far back as 20-8-1966 while the present petition was only filed on 25-3-1970, i.e., more than 3 years after the cause of action had arisen.
Mr. Frank Anthony in reply to the objection submitted that the decision regarding allotment of plots in Naraina Industrial Area to respondents 5 to 82 was, no doubt, taken in August, 1966, but the petitioners were not sitting quiet during this interval; they were all along agitating against the decision and ultimately succeeded in prevailing upon respondents 1 and 2 to decide that they too would be allotted plots in the same area. That decision was taken on 16-5-1968. But since that decision too was not acceptable to the petitioners, they kept on agitating further against it and it is only when they found that respondents 1 and 2 were bent upon giving effect to their decision which the petitioners felt was arbitrary, illegal, mala fide and discriminatory that they approached this Court for redress. The culminating point of the process of allotment that had started with the resolution of 20-8-1966 but was modified on 16-5-1968, was reached when respondents 1 and 2 tried to implement their final decision by the draw of lots held on 16-3-1970. The wrong done by the resolution of 20-8-1966 did not merely begin and end with that resolution. There was, therefore no question of any bar of limitation against the petitioners nor could their demand be treated as a stale demand.
There is great deal of force in the submission made by Mr. Frank Anthony. It is true that the various representations which the petitioners were making after they came to know in November, 1966 that respondents 5 to 82 had been recommended for allotment of plots in Naraina Industrial Area while they themselves were to be placed in the Rewari Industrial Line Scheme, were not statutory representations which could have the effect of extending time. It is also true (that it is only the time taken for the decision of an appeal or revision against an order which is prescribed under the Statute and not any and every representation which the party aggrieved by the order may choose to make, that can afford explanation for the delay. In the present case, however, fortunately for the petitioners, the representations made by them bore some fruit and the original decision of allotting plots in two separate areas, was modified by respondents 1 and 2 and in its place it was decided that all genuine parties should be allotted plots in Naraina Industrial Area. That decision was taken on 16-5-1968. The real grievance of the petitioners thus relates to the alleged arbitrary and discriminatory character of that decision. That decision is well within the period of limitation and there is also ample justification for the delay, because it was on 8-12-1969 only that respondent No. 1 issued fresh allotment demand letters to members of the petitioner--associations calling upon them to deposit the second installment of the premium for the smaller size plots allotted to them in Naraina Industrial Area. Therefore, this objection of the respondents also fails and is rejected.
The third preliminary objection is based on the existence of an alleged alternative remedy provided under the Act. It was argued that u/s 21 of the Act the power of the D.D.A to dispose of land is subject to the directions given by the Central Government. Likewise, section 41 makes it obligatory on the Authority to carry out such directions as may be issued to it from time to time by the Central Government for the efficient administration of the Act. If the petitioners were, therefore, dissatisfied with any action of the D.D.A., their remedy was to approach the Central Government and not to by-pass the remedy provided under the Act by approaching this Court. It was said by the Supreme Court in State of U.P. v. Mohammad Nooh (A.I.R. 1958 SC 86 ) that there is no rule with regard to certiorari as there is with regard to mandamus, that it will lie only where there is no other equally efficacious remedy. But as was observed by S.R. Das, J., in Rashid Ahmed Vs. The Municipal Board, Kairana, that though the existence of an adequate legal remedy is to be taken into consideration in the matter of granting prerogative writs, the powers given to the Supreme Court under Article 32 of the Constitution are much wider and are not confined to issuing prerogative writs only. In Baburam Prakash Chandra Maheshwari Vs. Antarim Zila Parishad now Zila Parishad, Muzaffarnagar, , the same considerations were held to be applicable to the exercise of powers by the High Courts under Article 226 of the Constitution. The case of Collector of Customs and Excise, Cochin and Others Vs. A.S. Bava, , is an instance where the aggrieved party had the remedy of a revision open to him u/s 36 of the Central Excise and Salt Act, 1944. On behalf of the Collector of Customs, who was appellant before the Supreme Court, an objection was raised that the High Court should not have interfered under Article 226 of the Constitution when the petitioner had not availed himself of the remedy of revision. Repelling the objection, their Lordships observed:--
There is no force in the first point. First, the point was not taken in the High Court. Secondly it is settled that the existence of a remedy by way of revision does not bar the jurisdiction of the High Court to entertain a petition under Article 226. Moreover, the petitioner had alleged that the Collector had no jurisdiction to demand the deposit or duty pending the appeals as the notification dated May, 4, 1963, was bad in so far as it applied S. 129 of the Customs Act. In these circumstances, it was not necessary for the petitioner to have filed revision.
In this case, we are far from satisfied that sections 21 and 41 of the Act can be treated as alternative remedies which are equally effective. In the first place, it is doubtful if the Central Government is bound to issue any directions to the Authority at the instance of a private party. That apart, even on facts, the objection does not appear to be well-founded. The petitioners have attached to the petition a copy of the representation addressed by them to the Lieut. Governor on 31-5-1968 (Annexure XV). This was followed by yet another representation dated 1-7-1968 (Annexure XVI-A). On 27-1-1970, when they failed to obtain redress from Delhi Administration, they sent a memorandum to the Central Minister for Works, Housing and Urban Development, Shri K.K. Shah. But all these representations failed to evoke any response from the above mentioned authorities with the result that ultimately the petitioners had to move this Court.
This objection must therefore fail and is rejected.
This brings us to the merits of the controversy between the parties. The relevant facts as to which there is no dispute, are these. The petitioners and respondents 5 to 82 are all iron and steel merchants. They have been carrying on their business in an area where, according to the "land use" prescribed under the Master Plan, they can no longer be allowed to do so. There is nothing to suggest that the conditions under which they have been carrying on their business are in any way dissimilar. On the other hand, there are clear indications that they are all similarly circumstanced. Section 21 of the Act provides that subject to any directions given by the Central Government under the Act, the Authority may dispose of any land acquired by the Central Government and transferred to it, to such persons, in such manner and subject to such terms and conditions as it considers expedient for securing the development of Delhi according to Plan. There can be no doubt that this power is coupled with a duty to act fairly and reasonably. All the four associations applied for allotment of plots in one area, viz., the Rewari Industrial Line Scheme. But when their applications came up for consideration, the Land Allotment Advisory Committee (Respondent No. 2) found that although the four associations with a total membership of 317 had applied for plots of 1/8 acre for each member, in the Rewari Line Industrial Area and those who were asking for bigger size plots were prepared to cut down their demand, the existing available number of plots of 1/8 acre were only about 100. It was, therefore, considered necessary that if all the applicants were to be accommodated, some of the bigger plots would have to be re-carved out and a portion of the area ear-marked for Group Industries would also have to be diverted for allotment of plots to them. It was at that stage, decided that the members of the respondent-association may be allotted plots of 1/8 acre each in the Naraina Industrial Area, Phase II and the area shown for Group Industries in that scheme may be suitably carved out into plots of 1/8 acre for this purpose.
It is not denied, as indeed it could not be, that the Naraina Industrial Area is three miles nearer the main city which is the chief consuming centre for the iron and steel goods and, therefore, offers from the point of view of trade and commerce several advantages which the Rewari Line Area does not possess. No attempt was made on behalf of the respondents to deny this fact and the only justification put forth was the one contained in the resolution, namely, that there were not enough plots in the Rewari Line Area to satisfy the demands of all the applicants.
Prima facie there is nothing unreasonable about this explanation, for it has to be borne in mind that when the Authority is faced with such a situation, it must have some discretion in the matter. But that discretion cannot be arbitrary and has to be exercised in a just and reasonable manner. The resolution passed by respondent No. 2 on 20-8-1966 does not disclose any basis for exercise of that discretion. Why the members of respondent-association alone were singled out for preferential treatment has not been explained at all. The vice discrimination is thus writ large in this resolution.
Learned counsel for the respondents strenuously argued that the petitioners had no legal right to the allotment of plots in any particular area. Their only right was to obtain alternative plots against those they were asked to surrender. Their is no force in this argument. If the circumstances under which certain persons were carrying on their business and the circumstances which had led to their displacement were the same, then the State could not discriminate between one set of persons and confer certain benefits on them which it denied to others. In such a situation, if it was found that all the applicants could not be accommodated in one area, an attempt could have been made either to reduce the size of the plots or to carve out some more plots or as a last resort, to draw lots among all the applicants so as to allot the available plots to the luckier ones and to accommodate the rest in other comparable areas. Respondent No. 2 could not arbitrarily pick up the members of the respondent-association for more favourable treatment ignoring the claims of others.
The vice of discrimination that was introduced by the resolution of 20-8-1956, is however, no longer of importance, because meanwhile some of the parties who had previously applied for allotment were not found to be genuine and on 4-3-1967, the Land Allotment Advisory Committee, passed the second resolution. According to that resolution, the applications of those who had neither an office nor a godown in Motia Khan or in any other non-conforming area were decided to be rejected straight away. The remaining applicants of the four Motia Khan associations were to be divided into the following two categories:-
(A) Applicants who had godowns in Motia Khan area
(B) Applicants who had only offices in Motia Khan but had godowns elsewhere in some other nonconforming area.
It was recommended that in the first instance, cases falling under category A only may be considered. The number of such cases was expected to be nearly 170. Of those the applicants who had been allotted land in Naraina Industrial Area were to be allowed to remain there but their plot size was to be reduced to 500 square yards. The remaining applicants under this category were to be accommodated in Naraina Industrial Area and in the Jhilmila Thirpur Industrial Area where about 60 plots of 500 square yards each could be carved out for that purpose, the exact location could be decided in each individual case by draw of lots. As regards applicants in category B, as well as others who had ware-houses in other non-conforming areas, it was recommended that they might be accommodated in Rewari Line and Wazipur Industrial Areas. The Committee was also of the view that it would neither be possible nor desirable to concentrate all ware-housing units in the particular area and that it would be expedient and useful to spread the iron and steel ware-houses in different areas.
It is not for us to say as to how far the Committee''s view about spreading out the iron and steel ware-houses in different areas, was right. Perhaps it was, but that decision has to be left to the Committee which can be trusted to know what particular allocation well best achieve the purposes of the Plan. No fault can also be found with the Committee''s recommendation in accommodating applicants in different areas when the total number of available plots in Naraina Industrial Area was 100 as against 170 applicants. The vulnerable part of the resolution, however, lies in this that while respondents 5 to 82 were allowed to remain un-touched as if they were a class apart, the allocation of plots in other areas was confined to the remaining applicants. If the Committee was prepared to adopt the procedure of drawing lots among the other applicants belonging to category A after respondents 5 to 82 were separated off, for the purpose of determining as to who among them should be allotted the remaining plots in Naraina Industrial Area and who should be sent to Jhilmila Tahirpur Industrial Area, we fail to see why the same procedure could not be adopted in respect of the entire lot of 170 applicants, even on the supposition that the division of applicants into categories A and B was a reasonable classification.
Respondent No. 2, however, gave a go-by to this resolution as well and instead passed on 16-5-1968 a third resolution in which the entire basis of allotment was completely changed. The said resolution reads as under:--
Land Advisory Committee dated 16-5-1968. No. 43 Subject-Allotment of Warehousing Plots to the Iron Dealers of Motia Khan. The matter relating to the allotment to the Iron dealers of Motia Khan in Naraina Phase II for Warehousing Area was considered. Those who were found to be genuine parties in the enquiry and who had also deposited the second installment of receiving the demand/allotment letter, may be allotted plots of the size between 450 to 500 sq. yards in Naraina Phase II and for the other applicants who have been found genuine iron dealers, plots of smaller size about 200 to 300 yards may be allotted in Naraina. For this purpose if the present Warehousing Area falls short of requirements a part of adjoining Industrial Area may be taken and the remaining dealers be accommodated therein. For the iron dealers of the second category consideration of the size of plots will also be based on the existing area in occupation of each unit.
The validity of the above resolution has been attacked by the petitioners firstly on the ground that the allotment of ware-housing plots in the Naraina Industrial Area which is ear-marked for Service Industry, and not for any other industry, is contrary to the Master Plan which, it is said, has not been modified in accordance with the provisions of section 11A of the Act and secondly, that it was passed with Shri Vijay Kumar Malhotra in the chair without the matter being on the agenda and without any formal discussion. Allegations of mala fides have also been made and it is said that the allotment of warehousing plots to respondents 5 to 82 is motivated by extra-legal and political considerations inasmuch as one of the members of the respondent-association, Shri Dharam Vir Bali (Respondent No. 69) is an-influential member of the Metropolitan Council and a close associate of Shri Vijay Kumar Malhotra, Chairman of respondent No. 2, who is the Chief Executive Councillor. Both Shri Dharam Vir Bali and Shri Vijay Kumar Malhotra, it is stated, belong to the same political party, viz., Bharatiya Jan Sangh and that "the discriminatory policy adopted throughout in the matter of allotment of the ware-housing plots, favouring the respondent-association and its members consistently to the detriment of the trade and business interests of the three petitioner-associations, is designed to benefit the respondent association." Yet another ground of attack is that the very basis of classification of the applicants for the allotment of bigger plots is wholly arbitrary and designed to benefit respondents 5 to 82. The excuse put forth in the resolution that they had already paid the premium (second installment) soon after receiving letters for the allotment of plots in Naraina Industrial Area, it is said, can hardly hold water and is a mere pretence because petitioners 1 to 63 and other members of the three petitioner-associations were not even asked at any time to pay the premium for plots in the Naraina Industrial Area. In their case, therefore, the question of payment of the second installment of premium did not arise at all. Moreover, even with respect to plot in the Rewari Line Area, they were told by respondent No. 1 vide its letter dated 28-6-1967 (Annexure XIV) that the date by which their members should pay the second installment of the premium would be communicated to them after the question of allotment of plots in Naraina Industrial Area was decided.
At the hearing of the petition the first ground of attack was not pressed by the learned counsel for the petitioners. Even otherwise there is no merit in that ground. That apart, its acceptance will hurt the petitioners as much as respondents 5 to 82 because it is under this very resolution that plots have been allotted in Naraina Industrial Area to the petitioners as well.
The allegation about their solution having been passed without the matter having been formally on the agenda or without any discussion is entirely meaningless, for if anything the resolution was rather an attempt at softening the blow by accommodating the petitioners in the same Industrial Area with respondents 5 to 82.
The charge of mala fides is also entirely baseless and it is regrettable that such a serious charge should have been made by the petitioners without proper inquiry and without there being any foundation for the same. The decision to allot plots in Naraina Industrial Area to respondents 5 to 82 was taken by respondent No. 2 on 20-8-1966 under the Chairmanship of Mr. Mir Mushtaq Ahmed, the then Chief Executive Councillor, representing the Congress part in the Metropolitan Council and not when the Committee was headed by Shri Vijay Kumar Malhotra. The later resolutions merely allowed that decision to remain undisturbed.
Both Dr. L.M. Singhvi and Mr. M.N. Phadke, learned counsel for the respondents, vehemently argued that the petition should be dismissed on this ground alone. It is true that petitioners who invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution, are required to exercise utmost care, inform themselves fully of all relevant facts, and state them fully. They should neither suppress any material or relevant fact nor make any false allegations, particularly those imputing lack of bona fides to public authorities. In the present case, the conduct of the petitioners is certainly blame-worthy in so far as it attributes motives to Shri Vijay Kumar Malhotra and were it not for the fact that the decision taken by respondents 1 and 2 is clearly assailable on the ground of discrimination, we would have denied relief to the petitioners.
We are, however, of the opinion that the action of respondents 1 and 2 is clearly violative of Article 14 of the Constitution and has consequently to be struck down. The petitioners have a just grievance and merely because they have either on account of ignorance or as a result of wrong advice, made a false allegation of imputing political bias to Shri Vijay Kumar Malhotra, they should not be non-suited on that ground alone. The resolution of 16-5-1968 accords recognition to the petitioners'' claim that the members of all the four associations should be accommodated in Naraina Industrial Area. If that is so, then there is no reason why respondents 5 to 82 should be allotted plots varying in size between 450 to 500 square yards each while the petitioners and others should be allotted plots of smaller size between 200 to 300 square yards. Actually each of the 78 respondents, viz., respondents 5 to 82, has been allotted a plot having an area of 450 square yards. The only reason which appears to have weighed with the Committee and which according to the learned counsel for the respondents, placed respondents 5 to 82 in a separate class, is that they had already deposited the second installment of premium whereas the petitioners had not done so. That reason is wholly unsupportable. If respondents 1 and 2 wanted to allot plots in Naraina Area to the applicants who had paid the second installment before the specified date, they ought to have issued, in the interest of justice and fair play, allotment demand letters to all the applicants of the four Motia Khan Associations simultaneously calling upon each to pay the premium for a plot in Naraina Area by the specified date making it clear that the available plots would only be allotted to those who had paid the premium before that date. No such opportunity was given to the petitioners. They were never asked to pay any installment in respect of plots in the Naraina Industrial Area. Even with respect to Rewari Line plots, all the petitioners were not served with any letters of demand and eventually they were all told that the time for payment had been deferred and yet that very ground is being put forth as separating them off from respondents 5 to 82. The last portion of the resolution is equally arbitrary. If the criterion for determining the size of the plot to be allotted to each applicant is to be the existing area in his or its occupation, as appears to have been done in the case of iron dealers of the second category, then there is no reason why the same criterion should not be applied to all the applicants of Motia Khan Area who had applied for were-housing plots in one and the same Industrial Scheme. The dividing line between the two categories is not only artificial but clearly arbitrary. The arbitrary and if we may say so, the inequitous character of the allotment is apparent from the fact that two of the respondents (respondents 68 and 79) who were previously occupying an area of 40 and 30 square yards each, have been allotted 450 square yards each and there are several others who have similarly benefited by the allotment. On the other hand, petitioner No. 5 who was previously occupying an area of 1100 square yards, has been allotted an area of 333 square yards.
Respondents 1 and 2 were invested with considerable statutory powers in the matter of acquisition and distribution of land. Even if the powers exercised by them are held to be administrative in character, they were under a duty to act fairly. Ex facie, the resolution of 16-5-1968 is bad because there is no intelligible or reasonable classification with respect to the petitioners who indubitably formed one class with respondents 5 to 82. There is no rational nexus between the alleged classification and the objects of sections 6 and 7 of the Act and the Master Plan.
On behalf of the respondents, great stress was laid on a Bench decision of this Court in Mrs. Sheila Kapur and others v. The Chief Commissioner, Delhi, 1968 D.L.T. 438, to which one of us was a party. The case of Sarojini v. Market Shopkeepers Association (Regd.) and another Union of India, 1964 P.L.R. 1144, decided by H.R. Khanna J. (as his Lordship then was) was also cited by the learned counsel. The facts in both those cases were entirely different and the principle of law laid down therein has no application to the facts of the present case.
Mr. Phadke, learned counsel for the respondents, put forth another argument and urged that it was not necessary that the material justifying discrimination should appear in the order itself. According to the learned counsel, though the resolution in form talks of those who have paid two deposits and those who have paid only one, in substance, the classification between respondents 5,50,82 and the petitioners is that between allottees and non-allottees and since the allotment in favour of respondents 5 to 82 was made as a result of the resolution dated 20-8-1966, this Court in exercise of its discretion should not interfere. The argument is not well-founded. The vice of discrimination lies in the allotment itself. It is not open to an administrative authority in the first place to create an artificial class by practicing discrimination and then to justify the discrimination on the basis of that classification. The argument about the time lag between the resolution of 20-8-1966 and the filing of the writ petition has already been considered and repelled. We cannot allow that argument to be raised over again as if by a side-wind.
Mr. Phadke then referred to the following passage in a recent decision of the Supreme Court in Rash Behari Chatterjee v. Fagu Shaw and others (A.I.R. 1970 SC 21):
Article 14 of the Constitution ensures equality among equals: its aim is to protect persons similarly placed against discriminatory treatment. It does not, however, operate against rational classification. A person setting up a grievance of denial of qenail treatment by law must establish that between persons similarly circumstanced, some were treated to their prejudice and the differential treatment had no reasonable relation to the object sought to be achieved by the law.
and submitted that in the present case there is no evidence about the petitioners being similarly circumstanced as respondents 5 to 82 and that merely because they had all applied together for allotment of plots or were previously carrying on business in the same area did not warrant the inference that they were similarly circumstanced. In view of what we have said before, we are unable to accept this argument.
It was finally argued by both Dr. Singhvi and Mr. Phadke that this Court ought not to disturb the allotment that had already been made after a protracted wrangle between the parties as it was likely to entail lot of administrative work and cause considerable embarrassment. There is no doubt that our decision may not only cause administrative inconvenience but also certain amount of embarrassment. But we cannot shrink away from what we consider to be our plain duty by any such consideration. The result of the fore-going discussion is that the petition succeeds and the decision regarding allotment of plots as a result of the various resolutions passed by respondent No. 2 and adopted by respondent No. 1 and all resulting action following those resolutions is quashed and set aside and respondents 1 and 2 are directed to make a fresh allotment of plots applying a common denominator to all the members of the four Motia Khan Associations whose claims for allotment may be found to be genuine. There will be, however, no order as to costs.