Rule 31 of Chapter 4, para F, of the High Court Rules and Orders, read with clause 26
of the Letters Patent. - the Division Bench of the High Court, consisting of the then Chief Justice and a puisne Judge, by two separate but concurring orders disposed of the writ petition cancelling the allotment of land and directing the Union Territory of Chandigarh to take necessary corrective steps in the matter in consonance with the constitutional philosophy of Article 14 of the Constitution of India and further directed the Union Territory of Chandigarh to take policy decision for allotment of educational institutional sites in favour of eligible persons so as to ensure that the allotments are made objectively and in a transparent manner. After delivering the separate concurring orders, however, the puisne Judge, on the post judgment script, specified that there was no agreement on certain paragraph Nos. 10, 12, 13, 14 and 15 of the order passed by the then Chief Justice.- challenged & filed Letters Patent, urging that the matter be referred to another Bench or the full Bench for adjudication on the points of difference. -The learned nominated Judge of the High Court disposed of the Civil Misc. Application Nos. 5016 of 2005 and Civil Misc. No. 6173 of 2005 vide order dated 26.4.2006, - held that Thus, there appears to be absolutely no point of difference or divergence between the then Chief justice and the companion puisne Judge, who have issued directions to the Administration of the Union Territory of Chandigarh. - Apex court held that We thus hold that the impugned order passed by the learned puisne Judge, which was concurred by the then Chief Justice by his separate order and the order of the third nominated Judge holding that there is no
difference of opinion in the orders of the Division Bench are legal and valid and do not require any interference by this Court.=
28,376.23 sq. yards (5.75 acres) in Sector 38-A in the Union Territory of
Chandigarh at the rate of Rs.900/- per sq. yard by the administration of
Union Territory of Chandigarh.
The rate was fixed by the Chandigarh
Administration vide its Notification No. 31/1/100-UTFI (4-2002/1823) dated
7.3.2002 issued under the Punjab Development Regulation Act, 1952 fixing
the land rates for allotment to educational institutions in the Union
Territory of Chandigarh.
The allotment of land was made in favour of
appellant-Institute for 99 years on lease hold basis with the condition
that the initial lease period will be 33 years and renewable for two like
periods only if the lessee continues to fulfil all conditions of allotment. =
3. The respondent No.1, Neeraj Sharma, filed a Writ Petition No.6916 of
2004 before the High Court of Punjab and Haryana at Chandigarh questioning
the legality and validity of the allotment of land involved in this case
urging various grounds.=
On 14.2.2005, the Division Bench of the High Court, consisting of the
then Chief Justice and a puisne Judge, by two separate but concurring
orders disposed of the writ petition cancelling the allotment of land and
directing the Union Territory of Chandigarh to take necessary corrective
steps in the matter in consonance with the constitutional philosophy of
Article 14 of the Constitution of India and further directed the Union
Territory of Chandigarh to take policy decision for allotment of
educational institutional sites in favour of eligible persons so as to
ensure that the allotments are made objectively and in a transparent
manner. After delivering the separate concurring orders, however, the
puisne Judge, on the post judgment script, specified that there was no
agreement on certain paragraph Nos. 10, 12, 13, 14 and 15 of the order
passed by the then Chief Justice.=
Aggrieved by the orders, the appellants filed the applications being
Civil Misc. No. 5016 of 2005 and Civil Misc. No. 6173 of 2005 under Rule 31
of Chapter 4(F) of the High Court Rules and Orders read with Clause 26 of
the Letters Patent, urging that the matter be referred to another Bench or
the full Bench for adjudication on the points of difference.=
The learned nominated Judge of the High Court disposed of the Civil
Misc. Application Nos. 5016 of 2005 and Civil Misc. No. 6173 of 2005 vide
order dated 26.4.2006,
We now come to the opinion expressed by the then Chief justice in
his order which was concurred by the nominated Judge hearing the Civil
Misc. Applications that although different reasons have been recorded by
the members of the Division Bench in their order who have disposed of CWP
No.6916 of 2004, the conclusion arrived at by them was the same.
Therefore,
the order passed by the then Chief Justice cannot be said to have rendered
a different opinion so as to attract the applicability of Rule 31 of
Chapter 4, para F, of the High Court Rules and Orders, read with clause 26
of the Letters Patent.
35. A perusal of the directions contained in the orders of the High
Court reveals a common effect, i.e. the allotment of the institutional plot
made in favour of the appellant-Institute stands cancelled as it did not
conform to the constitutional philosophy enshrined in Article 14 of the
Constitution of India.
This was also conceded by the learned nominated
Judge of the High Court hearing the Civil Misc. No.5016 of 2005 and Civil
Misc. No. 6173 of 2005.=
It was further held
that both the orders reveal a common object i.e. the cancellation of the
allotment of land made in favour of the appellant-Institute. The learned
Judge has further clarified that a process of auction by necessary
implication requires invitation to all eligible prospective allottees
through public notice which will be in conformity with the constitutional
philosophy under Article 14 of the Constitution of India. Having clarified
in the aforesaid terms, the learned Judge dismissed both the applications.
Thus, there appears to be absolutely no point of
difference or divergence between the then Chief justice and the companion
puisne Judge, who have issued directions to the Administration of the Union
Territory of Chandigarh.
It has rightly been pointed out by the nominated
Judge that there may apparently seem to be a difference in the thought
process and also the relative rigour of the expressions used by both the
learned Judges, yet, it has not been possible to conclude that there was
any divergence in the directions recorded in their separate views.
36. We thus hold that the impugned order passed by the learned puisne
Judge, which was concurred by the then Chief Justice by his separate order
and the order of the third nominated Judge holding that there is no
difference of opinion in the orders of the Division Bench are legal and
valid and do not require any interference by this Court.
37. It is needless to state that certain observations made in the
impugned orders against some of the appellants and the respondents are
totally unwarranted and the same are expunged.
38. In view of the foregoing reasons, we do not find any reason to
interfere with the impugned orders in exercise of this Court’s appellate
jurisdiction. The appeal is accordingly dismissed. The order dated
16.04.2007 granting stay shall stand vacated.
2014 - Sept. Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=41938
|REPORTABLE |
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2143 OF 2007
INSTITUTE OF LAW & ORS. ….APPELLANTS
Vs-
NEERAJ SHARMA & ORS. …RESPONDENTS
J U D G M E N T
V. GOPALA GOWDA, J.
This appeal is directed against the two separate impugned orders dated
14.2.2005 passed in Civil Writ Petition No. 6916 of 2004 by both the
members of the Division Bench of the High Court of Punjab & Haryana at
Chandigarh and against the order dated 26.04.2006 passed in Civil Misc. No.
5016 of 2005 and Civil Misc. No. 6173 of 2005. The brief facts of the case
are stated hereunder:-
2. The appellant-Institute of law was allotted the land measuring
28,376.23 sq. yards (5.75 acres) in Sector 38-A in the Union Territory of
Chandigarh at the rate of Rs.900/- per sq. yard by the administration of
Union Territory of Chandigarh. The rate was fixed by the Chandigarh
Administration vide its Notification No. 31/1/100-UTFI (4-2002/1823) dated
7.3.2002 issued under the Punjab Development Regulation Act, 1952 fixing
the land rates for allotment to educational institutions in the Union
Territory of Chandigarh. The allotment of land was made in favour of
appellant-Institute for 99 years on lease hold basis with the condition
that the initial lease period will be 33 years and renewable for two like
periods only if the lessee continues to fulfil all conditions of allotment.
3. The respondent No.1, Neeraj Sharma, filed a Writ Petition No.6916 of
2004 before the High Court of Punjab and Haryana at Chandigarh questioning
the legality and validity of the allotment of land involved in this case
urging various grounds.
4. On 14.2.2005, the Division Bench of the High Court, consisting of the
then Chief Justice and a puisne Judge, by two separate but concurring
orders disposed of the writ petition cancelling the allotment of land and
directing the Union Territory of Chandigarh to take necessary corrective
steps in the matter in consonance with the constitutional philosophy of
Article 14 of the Constitution of India and further directed the Union
Territory of Chandigarh to take policy decision for allotment of
educational institutional sites in favour of eligible persons so as to
ensure that the allotments are made objectively and in a transparent
manner. After delivering the separate concurring orders, however, the
puisne Judge, on the post judgment script, specified that there was no
agreement on certain paragraph Nos. 10, 12, 13, 14 and 15 of the order
passed by the then Chief Justice.
5. Aggrieved by the orders, the appellants filed the applications being
Civil Misc. No. 5016 of 2005 and Civil Misc. No. 6173 of 2005 under Rule 31
of Chapter 4(F) of the High Court Rules and Orders read with Clause 26 of
the Letters Patent, urging that the matter be referred to another Bench or
the full Bench for adjudication on the points of difference.
6. The learned nominated Judge of the High Court disposed of the Civil
Misc. Application Nos. 5016 of 2005 and Civil Misc. No. 6173 of 2005 vide
order dated 26.4.2006, holding that there was no point of difference
between the Judges of the Division Bench on the question of maintainability
of the writ petition and the locus standi of the writ petitioner. It was
held by him that although different reasons have been recorded by the
members of the Division Bench, the conclusion recorded by them on the issue
of maintainability of the writ petition was the same. It was further held
that both the orders reveal a common object i.e. the cancellation of the
allotment of land made in favour of the appellant-Institute. The learned
Judge has further clarified that a process of auction by necessary
implication requires invitation to all eligible prospective allottees
through public notice which will be in conformity with the constitutional
philosophy under Article 14 of the Constitution of India. Having clarified
in the aforesaid terms, the learned Judge dismissed both the applications.
7. The correctness of both the separate orders dated 14.02.2005
delivered by the Division Bench and the order dated 26.4.2006 of the
learned nominated Judge hearing Civil Misc. Nos. 5016 and 6173 of 2005 are
under challenge in this appeal filed by the appellant-Institute, raising
certain substantial questions of law.
8. It was contended by Mr. Nidhesh Gupta, the learned senior counsel for
the appellant-Institute that the learned nominated Judge has erred in not
appreciating the separate orders passed by the two learned Judges of the
Division Bench of the High Court, who have given separate and distinct
orders, which are absolutely conflicting in nature and had no commonality
at all. The learned Judge has failed to appreciate that even the ‘post
judgment script’, one of the learned judge has clearly spelt out the
differences of opinion between the two learned Judges and on this basis
alone the matter ought to have been referred to a larger bench.
9. It was further contended that the High Court ought to have noticed
that the land involved in this appeal had been allotted to the appellant-
Institute after proper scrutiny and on the published and notified rates of
the land with a condition for specific utilization of the land on lease
hold basis and that none of the town planning was affected by the allotment
of land in question in favour of the appellant-Institute since the area of
land in question is situated in the institutional area where educational
institutions are functioning.
10. It was further contended that the High Court has gravely erred in not
dismissing the writ petition on the basis of lack of locus standi of the
writ petitioner who has filed the writ petition for personal interest for
the reason that a residential site was not allotted to him by the
Administration of Union Territory of Chandigarh.
11. The High Court has further erred in holding that the appellants are
influential persons, therefore, the land was allotted to them, although no
basis whatsoever has been shown in the impugned judgments.
12. The High Court has erred in not appreciating that the allotment of
land in favour of the appellant-Institute was made as per regular procedure
adopted and being followed by Administration of Union Territory of
Chandigarh for the last more than 50 years and there was no deviation
whatsoever from the said procedure in allotting the land in favour of the
appellant-Institute which is also non-profitable institute.
13. It is further contended that the land is not auctioned by the
Chandigarh Administration but it has allotted it to qualified
persons/institutions on the basis of the social and economic needs of the
city and society. Further, the allotment of land for the purposes of
establishing educational institutions has restrictions on the transfer as
well as usage and therefore, it is different from the general land rates
(viz. commercial and residential) which have no such restrictions and are
freely marketable.
14. It is submitted that the land was allotted with certain conditions,
(a) on leasehold basis initially for 33 years (b) non transferable directly
or indirectly and (c) usage was only for law institute. The appellant-
Institute deposited 25% of the lease amount with the administration of
Union Territory where upon the letter of allotment dated 22.01.2004 in
respect of the land in question was issued in favour of the appellant-
Institute.
15. It is further submitted by the learned senior counsel that the writ
petition dubbed as a Public Interest Litigation filed by the respondent No.
1 is frivolous, malicious and illegal as it does not disclose the source of
information.
16. On the other hand, it is contended by the learned counsel on behalf
of the first respondent that the respondent is a dedicated social worker
having deep concern for the laws of land.
17. It is further contented that the appellants have managed to get the
allotment of land which is contrary to the policy of the Union Territory of
Chandigarh, the laws laid down by this Court in relation to the management
of public property and is in the teeth of Article 14 of the Constitution of
India.
18. The respondents have further contended that the said allotted land’s
market value is worth more than Rs.50/- crores but, was granted by way of
lease to the appellant-Institute for an amount of Rs.2.55 crores only,
which amounts to conferring largesse upon them which is not permissible in
law and has caused huge loss to the public exchequer.
19. It has been further contended that according to the rules for
allotment of land in favour of schools and other educational institutions,
no land can be allotted to any institute without an advertisement and
inviting applications from the eligible persons.
20. On the basis of the aforesaid rival legal contentions urged on behalf
of both the parties, the following points would arise for our
consideration:
Whether the writ petition filed in the public interest is maintainable or
not and whether the writ petitioner has locus standi to file the writ
petition?
Whether the separate but concurring orders passed by the Division Bench of
the High Court which were concurred by the nominated third Judge are legal
and valid or whether the same requires interference by this Court?
Whether the allotment order of land made in favour of the appellant-
Institute is in violation of Article 14 of the Constitution of India along
with the applicability of the “Allotment of land to Educational
Institutions (Schools),Rules etc. on a Lease-hold basis in Chandigarh
Scheme, 1996”?
What Order?
Answer to Point No.1
21. We will first consider and answer the question of maintainability of
the Writ Petition and locus standi of the writ petitioner, the respondent
No. 1 herein who has filed the writ petition.
22. The property in question belongs to the Union Territory of
Chandigarh Administration. Under our constitutional philosophy, it is a
public property and therefore, belongs to the people. Hence, the Union
Territory of Chandigarh Administration is the trustee of the land whose
duty is to see that the property is allotted in favour of eligible persons
by following the procedure laid down by the Chandigarh Administration, and
the same should not be allowed to be squandered or sold away by it at a
throw away price as it has been done in the instant case as pointed out by
its Audit Department itself that there is a clear loss of about Rs.139
crores to the public exchequer.
23. It has also come to our notice that the settlement of the land in
question in favour of the appellant-Institute was done within a few days
without following the mandatory procedure for the allotment of land. We do
not doubt the intention of the appellants to set up the law institute,
however, their private interest is pitted against the public interest. The
loss to the public exchequer could have been easily avoided had the land in
question been settled by way of public auction inviting applications from
eligible persons.
24. Further, as stated in the writ petition, the petitioner is a resident
of State of Punjab and is also an Income Tax Payee. It has neither been
shown nor proved by the appellants that he is a (i) meddlesome interloper
(ii) that he is acting under malafide intention or (iii) that he has been
set up by someone for settling his personal scores with Chandigarh
Administration or the allottee. Dealing with the question of locus standi
of the writ petitioner, we would like to refer to certain decisions of this
Court to hold that the writ petition filed by the first respondent is a
public interest litigation to protect public interest. In the case of
Fertilizer Corporation Kamgar Union (Regd.) Sindri & Ors. v. Union of
India & Ors.[1], the constitutional Bench of this Court has held as under:-
“29-30. ……Where does the citizen stand, in the context of the democracy of
judicial remedies, absent an ombudsman? In the face of (rare, yet real)
misuse of administrative power to play ducks and drakes with the public
exchequer, especially where developmental expansion necessarily involves
astronomical expenditure and concomitant corruption, do public bodies enjoy
immunity from challenge save through the post-mortem of parliamentary
organs. What is the role of [pic]the judicial process, read in the light of
the dynamics of legal control and corporate autonomy?
XXX XXX XXX
47. ……Nevertheless, the broad parameters of fairness in administration,
bona fides in action, and the fundamental rules of reasonable management of
public business, if breached, will become justiciable.
48. If a citizen is no more than a wayfarer or officious intervener without
any interest or concern beyond what belongs to any one of the 660 million
people of this country, the door of the court will not be ajar for him.
But, if he belongs to an organisation which has special interest in the
subject-matter, if he has some concern deeper than that of a busybody, he
cannot be told off at the gates, although whether the issue raised by him
is justiciable may still remain to be considered. I, therefore, take the
view that the present petition would clearly have been permissible under
Article 226.”
(emphasis supplied)
Similarly, in the case of S.P. Gupta v. Union of India and Anr.[2], this
Court has categorically laid down the law in relation to locus standi as
under :-
“18……whenever there is a public wrong or public injury caused by an act or
omission of the State or a public authority which is contrary to the
Constitution or the law, any member of the public acting bona fide and
having sufficient interest can maintain an action for redressal of such
public wrong or public injury. The strict rule of standing which insists
that only a person who has suffered a specific legal injury can maintain an
action for judicial redress is relaxed and a broad rule is evolved which
gives standing to any member of the public who is not a mere busy body or a
meddlesome interloper but who has sufficient interest in the proceeding.
There can be no doubt that the risk of legal action against the State or a
public authority by any citizen will induce the State or such public
authority to act with greater responsibility and care thereby improving the
administration of justice……It is also necessary to point out that if no one
can have standing to maintain an action for judicial redress in respect of
a public wrong or public injury, not only will the cause of legality suffer
but the people not having any judicial remedy to redress such public wrong
or public injury may turn to the street and in that process, the rule of
law will be seriously impaired….
19. There is also another reason why the Rule of locus standi needs to be
liberalised. Today we find that law is being increasingly used as a device
of organised social action for the purpose of bringing about socio-economic
change. The task of national reconstruction upon which we are engaged has
brought about enormous increase in developmental activities and law is
being utilised for the purpose of development, social and economic. It is
creating more and more a new category of rights in favour of large sections
of people and imposing a new category of duties on the State and the public
officials with a view to reaching social justice to the common man……. In
other words, the duty is one which is not correlative to any individual
rights. Now if breach of such public duty were allowed to go unredressed
because there is no one who has received a specific legal injury or who was
entitled to participate in the proceedings pertaining to the decision
relating to such public duty, the failure to perform such public duty would
go unchecked and it would promote disrespect for the rule of law. It would
also open the door for corruption and inefficiency because there would be
no check on exercise of public power except what may be provided by the
political machinery, which at best would be able to exercise only a limited
control and at worst, might become a participant in misuse or abuse of
power. It would also make the new social collective rights and interests
created for the benefit of the deprived sections of the community
meaningless and ineffectual.
20. ………If public duties are to be enforced and social collective “diffused”
rights and interests are to be protected, we have to utilise the initiative
and zeal of public-minded persons and organisations by allowing them to
move the court and act for a general or group interest, even though, they
may not be directly injured in their own rights. It is for this reason that
in public interest litigation — litigation undertaken for the purpose of
redressing public injury, enforcing public duty, protecting social,
collective, “diffused” rights and interests or vindicating public interest,
any citizen who is acting bona fide and who has sufficient interest has to
be accorded standing. What is sufficient interest to give standing to a
member of the public would have to be determined by the court in each
individual case. It is not possible for the court to lay down any hard and
fast rule or any straitjacket formula for the purpose of defining or
delimiting “sufficient interest”. It has necessarily to be left to the
discretion of the court………
XXX XXX XXX
23. We would, therefore, hold that any member of the public having
sufficient interest can maintain an action for judicial redress for public
injury arising from breach of public duty or from violation of some
provision of the Constitution or the law and seek enforcement of such
public duty and observance of such constitutional or legal provision……”
(Emphasis supplied)
Further, in the case of Dattaraj Nathuji Thaware v. State of Maharashtra &
Ors.[3], this Court held that Public Interest Litigation is a weapon which
has to be used with great care and circumspection. It has to be used as an
effective weapon in the armoury of law for delivering social justice to
citizens. The aim of Public Interest Litigation should be to redress
genuine public wrong or public injury.
25. It is clear to us that the respondent No. 1-the writ petitioner has
filed a bonafide writ petition and he has the necessary locus. There is an
apparent favour shown by the Union Territory of Chandigarh in favour of the
appellant-Institute which is a profit making company and it has not shown
to this Court that the allotment of land in its favour is in accordance
with law. Hence, we are of the view that there is a strong reason to hold
that the writ petition is maintainable in public interest. We completely
agree with the views taken by the High Court, wherein it has rightly held
that the writ petition is a Public Interest Litigation and not a Private
Interest Litigation. The writ petition in question is the first petition
filed by the first respondent and his first endeavor to knock the doors of
the constitutional court to protect the public interest by issuing a writ
of certiorary.
26. The appellants have miserably failed to show the malafide intention
on the part of the respondent No. 1 in filing writ petition and we agree
with the view of the then Chief Justice in his order who has held that he
is a public spirited person. The cause ventilated by him is definitely
worth consideration and the record of the AAO (Audit) submitted to the
Chandigarh Administration proves the allegations made by him. Further it is
observed that His Excellency, the Governor of Punjab-cum-Administrator,
Chandigarh has rightly come to the conclusion in his decision that the
impugned allotment of land in favour of the first appellant-Institute
requires taking up of corrective steps. The Administration of the Union
Territory of Chandigarh has conferred largesse on the appellant-Institute
by allotting land in its favour for inadequate consideration without
following procedure. Therefore, we hold that the writ petition filed by
the first respondent is maintainable as the allotment of the land in
question made in favour of the first appellant-Institute is arbitrary,
illegal and the same is in violation of Article 14 of the Constitution.
Answer to Point Nos. 2, 3 and 4
27. We have carefully considered and examined the question of the
legality of the allotment order of the land made in favour of the appellant-
Institute. It is submitted on behalf of the first respondent that the
allotment of public land at throw away price or at no price to the private
educational institutions with an avowed object to serve the public interest
is contrary to the theory of “charitable education” that serve the pious
cause of literacy. The aforementioned legal issue was visualized by this
Court and has lucidly laid down the law in the case of Union of India &
Anr. v. Jain Sabha, New Delhi& Anr.[4] wherein the plea of charitable
intentions or philanthropic goal behind the establishment of private
educational institution was not accepted by this Court, holding that :-
“11……we think it appropriate to observe that it is high time the Government
reviews the entire policy relating to allotment of land to schools and
other charitable institutions. Where the public property is being given to
such institutions practically free, stringent conditions have to be
attached with respect to the user of the land and the manner in which
schools or other institutions established thereon shall function. The
conditions imposed should be consistent with public interest and should
always stipulate that in case of violation of any of those conditions, the
land shall be resumed by the Government. Not only such conditions should be
stipulated but constant monitoring should be done to ensure that those
conditions are being observed in practice. While we cannot say anything
about the particular school run by the respondent, it is common knowledge
that some of the schools are being run on totally commercial lines. Huge
amounts are being charged by way of donations and fees. The question is
whether there is any justification for allotting land at throw-away prices
to such institutions. The allotment of land belonging to the people at
practically no price is meant for serving the public interest, i.e., spread
of education or other charitable purposes; it is not meant to enable the
allottees to make money or profiteer with the aid of public property. We
are sure that the Government would take necessary measures in this behalf
in the light of the observations contained herein.”
28. Further, in another case, this Court set aside the allotments of land
made by the allotment committee even though most of the allottees had
constructed the buildings, because, the allotment Committee had not
followed any rational or reasonable criteria for inviting the applications
for the allotment of land through an open advertisement. Reliance is placed
on the decision of this Court in New India Public School & Ors. v. HUDA and
Ors.[5], which states as under:-
“4………Therefore, the public authorities are required to make necessary
specific regulations or valid guidelines to exercise their discretionary
powers; otherwise, the salutary procedure would be by public auction. The
Division Bench, therefore, has rightly pointed out that in the absence of
such statutory regulations exercise of discretionary power to allot sites
to private institutions or persons was not correct in law.”
29. Further, we have to refer to the case of Akhil Bhartiya Upbhokta
Congress v. State of M.P. & Ors.[6], wherein this Court has succinctly laid
down the law after considering catena of cases of this Court with regard to
allotment of public property as under :
“50. For achieving the goals of justice and equality set out in the
Preamble, the State and its agencies/instrumentalities have to function
through political entities and officers/officials at different
levels. The laws enacted by Parliament and the State Legislatures bestow
upon them powers for effective implementation of the laws enacted for
creation of an egalitarian society. The exercise of power by political
entities and officers/officials for [pic]providing different kinds of
services and benefits to the people always has an element of discretion,
which is required to be used in larger public interest and for public
good……In our constitutional structure, no functionary of the State or
public authority has an absolute or unfettered discretion. The very idea of
unfettered discretion is totally incompatible with the doctrine of equality
enshrined in the Constitution and is an antithesis to the concept of the
rule of law.
XXX XXX XXX
54. In Breen v. Amalgamated Engg. Union, Lord Denning MR said: (QB p. 190,
B-C)
‘… The discretion of a statutory body is never unfettered. It is a
discretion which is to be exercised according to law. That means at least
this: the statutory body must be guided by relevant considerations and not
by irrelevant. If its decision is influenced by extraneous considerations
which it ought not to have taken into account, then the decision cannot
stand. No matter that the statutory body may have acted in good faith;
nevertheless the decision will be set aside. That is established by
Padfield v. Minister of Agriculture, Fisheries and Food which is a landmark
in modern administrative law.’
55. In Laker Airways Ltd. v. Deptt. of Trade Lord Denning discussed
prerogative of the Minister to give directions to Civil Aviation
Authorities overruling the specific provisions in the statute in the time
of war and said: (QB p. 705, F-G)
‘Seeing that the prerogative is a discretionary power to be exercised for
the public good, it follows that its exercise can be examined by the courts
just as any other discretionary power which is vested in the executive.’
56. This Court has long ago discarded the theory of unfettered discretion.
In S.G. Jaisinghani v. Union of India, Ramaswami, J. emphasised that
[pic]absence of arbitrary power is the foundation of a system governed by
rule of law and observed: (AIR p. 1434, para 14)
‘14. In this context it is important to emphasise that the absence of
arbitrary power is the first essential of the rule of law upon which our
whole constitutional system is based. In a system governed by rule of law,
discretion, when conferred upon executive authorities, must be confined
within clearly defined limits. The rule of law from this point of view
means that decisions should be made by the application of known principles
and rules and, in general, such decisions should be predictable and the
citizen should know where he is. If a decision is taken without any
principle or without any rule it is unpredictable and such a decision is
the antithesis of a decision taken in accordance with the rule of law……..’
XXX XXX XXX
59. In Kasturi Lal Lakshmi Reddy v. State of J&K, Bhagwati J. speaking for
the Court observed: (SCC pp. 13-14, para 14)
‘14. Where any governmental action fails to satisfy the test of
reasonableness and public interest discussed above 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……….’
61. The Court also referred to the reasons recorded in the orders passed by
the Minister for award of dealership of petrol pumps and gas agencies and
observed: (Common Cause case, SCC p. 554, para 24)
‘24. … While Article 14 permits a reasonable classification having a
rational nexus to the objective sought to be achieved, it does not permit
the power to pick and choose arbitrarily out of several persons falling in
the same category. A transparent and objective criteria/procedure has to be
evolved so that the choice among the members belonging to the same class or
category is based on reason, fair play and non-arbitrariness. It is
essential to lay down as a matter of policy as to how preferences would be
assigned between two persons falling in the same category….’
62. In Shrilekha Vidyarthi v. State of U.P. the Court unequivocally
rejected the argument based on the theory of absolute discretion of the
administrative authorities and immunity of their action from judicial
review and observed: (SCC pp. 236, 239-40)
‘29. It can no longer be doubted at this point of time that Article 14 of
the Constitution of India applies also to matters of governmental policy
and if the policy or any action of the Government, even in contractual
matters, fails to satisfy the test of reasonableness, it would be
unconstitutional…….”
In the light of the above mentioned cases, we have to record our finding
that the discretionary power conferred upon the public authorities to carry
out the necessary Regulations for allotting land for the purpose of
constructing a public educational institution should not be misused.
30. We further hold that the fundamental right to establish and run an
educational institution in terms of Article 19 (1)(g) of the Constitution
is subject to reasonable restrictions under Article 19(6) of the
Constitution of India. Therefore, the State is within its competence to
prohibit “commercialization of education”.
31. In Modern School v. Union of India and Others[7] (supra), this Court
has held thus :-
“72. So far as allotment of land by the Delhi Development Authority is
concerned, suffice it to point out that the same has no bearing on the
enforcement of the provisions of the Act and the Rules framed thereunder
but indisputably the institutions are bound by the terms and conditions of
allotment. In the event such terms and conditions of allotment have been
violated by the allottees, the appropriate statutory authorities would be
at liberty to take appropriate step as is permissible in law.”
32. We, therefore, disregard the plea of charitable intention or
philanthropic goal behind the establishment of the appellant educational
institution as the establishment of the same does not serve any public
interest and we cannot allow the allottee to make money or profiteer with
the aid of the public property.
33. Further, on a careful evaluation of the statutory object behind
clause 18 of the “Allotment of Land to Educational Institutions
(Schools)Rules Etc. on Lease Hold basis in Chandigarh Scheme, 1996” no
systematic exercise has been undertaken by the Administration of Chandigarh
to identify the needs of different kinds of professional institutions
required to be established in Chandigarh. We thus concur with the reasoning
of the High Court in the impugned orders that the Screening Committee
comprising of senior and responsible functionaries allotted the
institutional sites in favour of the allottee without following any
objective criteria and policy. The Screening Committee acted in a manner
which is contrary to the principles laid down by this Court in the
judgments cited above in allotting the land in question in favour of the
first appellant. We, therefore, conclude that the High Court has rightly
held that the policy followed by the Chandigarh Administration where the
allotment of land was done in favour of the appellant-Institute without
giving any public notice and in the absence of a transparent policy based
upon objective criteria and without even examining the fact that the Union
Territory of Chandigarh is already under extreme pressure of over
population and even in the case of allotment of school sites by making no
attempt to enforce clause 18 of the Scheme, 1996, thereby confining the
said provision merely to the statute book, is arbitrary, unreasonable and
unjust and is opposed to the provisions of Article 14 of the Constitution
of India.
34. We now come to the opinion expressed by the then Chief justice in
his order which was concurred by the nominated Judge hearing the Civil
Misc. Applications that although different reasons have been recorded by
the members of the Division Bench in their order who have disposed of CWP
No.6916 of 2004, the conclusion arrived at by them was the same. Therefore,
the order passed by the then Chief Justice cannot be said to have rendered
a different opinion so as to attract the applicability of Rule 31 of
Chapter 4, para F, of the High Court Rules and Orders, read with clause 26
of the Letters Patent.
35. A perusal of the directions contained in the orders of the High
Court reveals a common effect, i.e. the allotment of the institutional plot
made in favour of the appellant-Institute stands cancelled as it did not
conform to the constitutional philosophy enshrined in Article 14 of the
Constitution of India. This was also conceded by the learned nominated
Judge of the High Court hearing the Civil Misc. No.5016 of 2005 and Civil
Misc. No. 6173 of 2005. Thus, there appears to be absolutely no point of
difference or divergence between the then Chief justice and the companion
puisne Judge, who have issued directions to the Administration of the Union
Territory of Chandigarh. It has rightly been pointed out by the nominated
Judge that there may apparently seem to be a difference in the thought
process and also the relative rigour of the expressions used by both the
learned Judges, yet, it has not been possible to conclude that there was
any divergence in the directions recorded in their separate views.
36. We thus hold that the impugned order passed by the learned puisne
Judge, which was concurred by the then Chief Justice by his separate order
and the order of the third nominated Judge holding that there is no
difference of opinion in the orders of the Division Bench are legal and
valid and do not require any interference by this Court.
37. It is needless to state that certain observations made in the
impugned orders against some of the appellants and the respondents are
totally unwarranted and the same are expunged.
38. In view of the foregoing reasons, we do not find any reason to
interfere with the impugned orders in exercise of this Court’s appellate
jurisdiction. The appeal is accordingly dismissed. The order dated
16.04.2007 granting stay shall stand vacated.
………………………………………………………………………J.
[SUDHANSU JYOTI MUKHOPADHAYA]
………………………………………………………………………J.
[V. GOPALA GOWDA]
New Delhi,
September 19, 2014
-----------------------
[1] AIR 1981 SC 344, (1981) 1 SCC 568
[2] (1981) Supp SCC 87
[3] ( 2005) 1 SCC 590
[4] (1997) 1 SCC 164
[5] (1996) 5 SCC 510
[6] (2011) 5 SCC 29
[7] (2004) 5 SCC 583
