REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4782 OF 2011
(Arising out of Special Leave Petition (C)
No.22305/2010)
Humanity & another ...Appellant(s)
- Versus -
State of West Bengal & Ors. ...Respondent(s)
WITH
CIVIL APPEAL NO.4783 OF 2011
(Arising out of Special Leave Petition (C)
No.22503/2010)
Arunangshu Chakraborty ... Appellant(s)
- Versus -
State of West Bengal & Ors. ...Respondent(s)
WITH
CIVIL APPEAL NO.4784 OF 2011
(Arising out of Special Leave Petition (C)
No.11783/2011)
C.A. Block Citizens' Association
& Ors. ... Appellant(s)
- Versus -
State of West Bengal & Ors. ...Respondent(s)
J U D G M E N T
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GANGULY, J.
1. Leave granted in all the special leave
petitions.
2. Several writ petitions were filed in public
interest before the Calcutta High Court
challenging the allotment of land given in
favour of Mr. Sourav Ganguly (hereinafter
referred to as allottee), by the State of West
Bengal. The High Court, by its judgment dated
12.4.2010, upheld the allotment of plot of land
being plot no. CA-222 by allotment letter dated
17.2.2009. It disposed of all the petitions by
a direction that in order to retain leasehold
rights and possession of the said plot in
Sector-V, Salt Lake City (Bidhannagar),
Kolkata, the allottee has to pay the State
Government a sum of Rs.43,25,500/-, failing
which the lease deed dated 1.4.2009 shall be
2
treated as invalid and possession of the land
shall be handed back to the State Government.
3. Challenging the said judgment of the Division
Bench, three SLP's (11783/2011, 22503/2010 and
22305/2010) were filed before this Court and as
the judgment is one, and the facts and
questions are identical, the cases were heard
together and are being decided by this
judgment.
4. The material facts of the case are that on
5.11.2006, an advertisement was issued by the
Government of West Bengal, Urban Development
Department, earmarking a plot of land measuring
about 50 kathas in Plot No. BF-158 in Sector-I,
Salt Lake (Bidhannagar), Kolkata- 700064, for
the setting up of an integrated school from
primary level to higher secondary level. It was
stated in the advertisement that the school
would basically be academic in nature, but with
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extra-curricular activities, which would form
an integral part of the curriculum and it was
stated that the intending
Organization/Institution/Body/Registered
Society/ Trust which were capable of running
and managing such a school by their own
resources, may apply to the Principal
Secretary, Urban Development Department,
Government of West Bengal, Nagarayan, DF-8,
Sector-1, Bidhannagar, Kolkata- 700064 on plain
paper within 15 days from the publication of
the advertisement giving details of the
project. It was intimated that the aforesaid
plot of land would be leased to the aforesaid
applicants for 999 years on certain terms
indicated in the advertisement.
5. One of the terms in the said advertisement, to
which some reference shall be made later on, is
as follows:
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"The government, however, reserves the
right to change the location of the land
and revise the rate of salami at its full
discretion. Such decision shall be final."
6. The allottee applied on 17.11.2006. In the said
application, the allottee inter alia stated:
"There is ever increasing demand for
such institutions, especially in the
northern and eastern part of the
metropolitan city of Kolkata. The
object of the proposed educational
institution would be academic
excellence with a balanced blend of
co-curricular activities and sports
for the all round growth of the
younger generation...In this context,
I propose to keep a few seats reserved
for such needy cum meritorious
pupils."
7. In the project report submitted by the
allottee, it was stated that the school would
be owned by a Registered Society/Trust. A
Committee consisting of several Government
officials considered about 20 applications,
filed pursuant to the aforesaid advertisement.
The Committee consisted of:
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a. Chief Secretary, Government of West Bengal
b. Principal Secretary/ Secretary to Chief
Minister
c. Principal Secretary/ Secretary, Urban
Development Department
d. Principal Secretary/ Secretary,
Information and Cultural Affairs
Department
e. Principal Secretary/ Secretary, Cottage
and Small-Scale Industries Department
f. Principal Secretary/ Secretary, Commerce
and Industries Department
g. Managing Director, West Bengal Industries
Development Corporation
8. Surprisingly nobody from the Education
Department was in the Committee.
9. Thereafter, by resolution dated 10.1.2007, the
aforesaid Committee selected the allottee and
an allotment order dated 22.02.2007 in respect
of plot no. BF-158 was issued by the Joint
Secretary, Urban Department to the allottee.
Thereupon, a lease deed was executed between
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the Government and the allottee on 29.10.2007
and possession of the said plot was given on
14.2.2008.
10. It may be noted that the aforesaid selection of
the allottee in respect of plot No.BF-158 was
not challenged and is not the subject matter of
dispute in these proceedings.
11. Thereafter, on 19.1.2009, a letter was written
to Sri Ashoka Bhattacharya, Minister for Urban
Development and Municipal Affairs by the
allottee by stating that after going through
the norms of `ICSE' he felt that allotment of a
bigger plot was needed for getting affiliation
and a prayer was made for allotment of another
bigger plot.
12. Since the prayer made in this letter and its
consideration by the Government is vitally
important for the decision in this case, the
letter is set out below:
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"At present I am the owner of Plot No.
158, Block-BF in Salt Lake, Sector-I of 48
Kathas of land which was given to me for
the purpose of building a school. But
after going through the norms of ICSE to
get an affiliation, we now need a plot of
more than 60 kathas (1 acre). So I would
like to surrender this allotted land to
you and at the same time apply for a plot
of a bigger area so that I can take the
school project forward."
(Underlined by Court)
13. It may be noted that in this letter, the
allottee stated that he `would like to
surrender' the plot already allotted to him
and would at the same time `apply for a
plot of a bigger area'. This the allottee was
seeking to do in order to comply with the norms
of ICSE.
14. Within a month thereafter, by a communication
dated 17.2.2009, issued from the Urban
Development Department, the allottee was
informed about allotment of another plot- No.
CA-222 in Sector-I measuring 62 kathas (it is
actually 63.04 kathas). This allotment of a
8
different plot, which is of much bigger size,
in a different area, was challenged before the
High Court and before this Court on various
grounds.
15. The first ground of challenge was that there
was no advertisement for allotment of the
subsequent plot being plot No. CA-222, which is
much bigger than the initial plot and allotment
of this different and bigger plot, without any
advertisement by the Government, only on the
prayer of the allottee is arbitrary,
discriminatory and violative of Article 14 of
the Constitution.
16. The second ground of challenge is that even
though the impugned allotment was made on
17.2.2009 "subject to execution of registration
of deed of surrender," the lease deed pursuant
to such allotment was executed on 01.04.2009
and the same was presented for registration on
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3.4.2009 and was registered on 6.4.2009. The
possession of the plot was made over to the
allottee on 30.4.2009. A draft deed of
surrender was sent by the State Government to
the allottee and was signed by the allottee on
5.3.2009 but the same was not presented for
registration and the same was registered only
after filing of the petition before the High
Court. The complaint of the petitioner is that
the plot was surrendered only after the writ
petition was admitted by the High Court and
direction for filing of affidavit was given.
17. The third ground of challenge was that when the
allottee initially applied and was allotted the
previous plot, the norms of ICSE affiliation
were already notified and the allottee claiming
to set up a school for ICSE affiliation must be
aware of those norms.
1
18. The fourth ground was that the claim of the
allottee for complying with the ICSE norm is
just a specious plea, in fact the Trust which
the allottee has set up for the school does not
at all comply with the ICSE norms.
19. The fifth ground was that in allotting the
subsequent plot, to the allottee, the
authorities have flouted the working plan which
is available for Salt Lake City in the absence
of a master plan.
20. The learned counsel for the State, on the other
hand, submitted before this Court that there
was nothing illegal in the Government's
accepting the subsequent offer of the allottee
and in doing so the Government acted in terms
of the original advertisement where it had
reserved its right to alter the original
location of the allotted plot. Learned counsel
for the State submitted that the subsequent
1
plot which has been allotted to the allottee
cannot be called allotment of a new plot and no
fresh advertisement for the same is necessary
and relied on the impugned judgment in which
High Court entered a similar finding. It was
also submitted that the initial allotment made
in favour of the allottee was examined by a
high-powered Committee and after examining
everything allotment was made and there is no
illegality in the entire transaction.
21. Learned counsel for the allottee submitted that
the bona fide of the allottee must be looked
into and considered by this court and the
project is for a public purpose of setting up a
good school in the area which is very much in
need of the same. No challenge has been made to
the allotment of the subsequent plot in favour
of the allottee by any educational institution
or by those who applied for the first
allotment. The challenge by the public interest
1
litigants should not be entertained by this
court when the setting up of the school itself
was in public interest. It is further urged
that the subsequent allotment does not require
a fresh advertisement.
22. The other grounds of challenge pointed out by
the appellants, according to the counsel of the
allottee, are inconsequential and may not be
considered by this court in view of the
overwhelming public interest in the setting up
of a school.
23. Considering the aforesaid rival submissions,
this court is inclined to hold that the
allotment of plot no. CA-222 in favour of the
allottee cannot be sustained for the reasons
discussed hereunder.
24. When the Government decided to allot a
substantial plot for setting up of a school by
1
private organizations and when on the basis of
an advertisement to that effect various
organizations responded, the action of the
Government was one of granting largesse in as
much as land of which the Government is owner
and which was allotted is a very scarce and
valuable property.
25. It has been repeatedly held by this court that
in the matter of granting largesse, Government
has to act fairly and without even any
semblance of discrimination. Law on this
subject has been very clearly laid down by this
court in the case of Ramana Dayaram Shetty v.
International Airport Authority of India and
Others reported in 1979 (3) SCC 489. A three-
Judge Bench in the said decision has recognized
that the Government, in a welfare State, is in
a position of distributing largesse in a large
measure and in doing so the Government cannot
act at its pleasure. This court perusing the
1
new jurisprudential theory of Professor Reich
in his article on the "The New Property" (73
Yale Law Journal 733) accepted the following
dictum contained therein:
"The government action be based on
standards that are not arbitrary and
unauthorized."
26. This court explained the purport of the
aforesaid formulation by holding:
"The government cannot be permitted to say
that it will give jobs or enter into
contracts or issue quotas or licenses only
in favour of those having grey hair or
belonging to a particular political party
or professing a particular religious
faith. The government is still the
government when it acts in the matter of
granting largesse and it cannot act
arbitrarily. It does not stand in the same
position as a private individual."
(Para 11, page 505 of the report)
27. The aforesaid dictum in Ramana (supra) is still
followed by this court as the correct
exposition of law and has been subsequently
1
followed in many other decisions. In M/s
Kasturi Lal Lakshmi Reddy v. State of Jammu and
Kashmir & Another reported in 1980 (4) SCC 1,
another three-Judge Bench relied on the dictum
in Ramana (supra) and held whenever any
governmental action fails to satisfy the test
of reasonableness and public interest, it is
liable to be struck down as invalid. This court
held that a necessary corollary of this
proposition is that the Government cannot act
in a manner which would benefit a private
party. Such an action will be contrary to
public interest. (See para 14, p. 13 of the
report)
28. The setting up of a private school may have
some elements of public interest in it but
Constitution Bench of this court has held in
T.M.A. Pai Foundation & Ors. v. State of
Karnataka & Others reported in 2002 (8) SCC
481, that the right of a citizen, which is not
1
claiming minority rights to set up a private
educational institution is part of its
fundamental right to carry on an occupation
under Article 19(1)(g). Such enterprise may not
be a totally business enterprise but profit
motive cannot be ruled out.
29. In view of the aforesaid legal principle, the
question is whether the impugned order of the
Government vide allotment letter dated
17.2.2009 allotting a plot of 63.04 kathas of
land in a prime area in Salt Lake City is an
allotment which is different than the previous
allotment of 50 kathas which was made to the
allottee in Plot No. BF-158.
30. The answer is obvious from the admitted facts
of the case. Even the allottee in his letter
dated 19.1.2009 praying for such allotment,
made it clear that he was applying for a plot
of bigger area after surrendering the previous
1
plot. The sequence suggested in the allottee's
letter is that he would surrender the already
allotted land and at the same time apply for a
plot of bigger area. Therefore, the request of
the allottee is to give another plot of land.
Pursuant to such request of the allottee,
another plot of land was allotted to him with
exemplary speed by the Government, within a
month, if we go by the normal pace in
governmental transactions. The request was made
by the allottee for a bigger plot of land on
19.1.2009 to Mr. Ashok Bhattacharya, Minister
of Urban Development and Municipal Affairs and
from the said department a communication was
sent to the allottee on 17.2.2009, to the
effect that after considering the request of
the allottee, the Government was pleased to
cancel its previous order of allotment and in
lieu thereof was allotting a new plot of land
being no. CA-222 measuring 62 kathas (which is
actually 63.04 kathas).
1
31. Admittedly, no advertisement was issued and no
offer was sought to be obtained from the
members of the public in respect of the new
allotment of a much bigger plot. In view of the
principles laid down by this court, the
impugned allotment is clearly in breach of the
principles of Article 14 explained by this
court in Ramana (supra), Kasturi Lal (supra)
and other subsequent cases.
32. This court cannot persuade itself to hold that
this allotment is in exercise of the right of
the Government in the first advertisement dated
5.11.2006, where the Government reserved its
right to change the location of the land. The
second allotment is not only about a change in
the location of the land, but the subsequent
allotment is also of a much larger plot of
land, brought about in terms of the request of
the allottee for a bigger plot. The subsequent
1
change was not brought about by the Government
in its own discretion, assuming but not
admitting that the Government could exercise
its discretion in such a fashion but was in
response to a written request of the allottee.
33. The Government was so anxious to oblige the
allottee by giving bigger plot that too with no
loss of time, the said allotment was made by
the Government admittedly without verifying
whether the allottee had surrendered the
previous plot allotted to him. From the facts
which have been disclosed here, it is clear
that such surrender took place much later on
17.12.2009, when the allottee sent a forwarding
letter the registered deed of surrender in
respect of the previous plot no. BF-158. The
letter of the allottee dated 16.12.2009 would
show the following:
"Though I have executed the Deed of
Surrender and made over the same to you
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but the formality of having the same
registered could not be completed by me
due to oversight which was mainly because
of my busy schedule and constant travel. I
understand that the said Deed cannot be
registered now for lapse of time unless
extended by the State.
I shall be highly grateful if you could
kindly arrange to have the said period
extended or allow me to register a fresh
deed of surrender at the earliest."
34. It is, therefore, clear that the Government
made allotment of the new plot to the allottee
on terms which were even more generous than the
ones suggested by the allottee in his letter
dated 19.1.2009. Such action of the Government
definitely smacks of arbitrariness and falls
foul of Article 14.
35. This factual aspect of the matter discussed in
detail under the second ground of challenge was
not disputed before us by either the learned
counsel for the Government or the learned
counsel for the allottee.
2
36. On the third ground of challenge about
compliance with ICSE norms, we find that the
ICSE norms were in place as early as 28.4.2006
and those norms have been disclosed by the
counter-affidavit filed by the allottee before
this court in the SLP filed by C.A. Block
Citizens' Association. Therefore, much before
the application was made by the allottee on
17.11.2006, those norms were available on
record. Even then he applied for a plot of 50
kathas of land in terms of the advertisement
dated 5.11.2006 issued by the State Government.
37. On the fourth ground of challenge, we find that
according to clause 2 of the ICSE norms, the
school should be run by a Registered
Society/Trust or a Company (under section
25(1)(a) of the Companies Act, 1986) for
educational purposes. It must not be run for
profit.
2
38. The constitution of the Society/Trust/Company
running the school should be such that it does
not vest control in a single individual or
members of the same family.
39. But in the instant case, a Society which has
been registered for running the proposed school
under the name of 'Ganguly Education and
Welfare Society' consists of the following
members:
a. Sourav Ganguly
b. Dona Ganguly
c. Snehasish Ganguly
d. Chandidas Ganguly
e. Nirupa Ganguly
f. Arup Chatterjee
g. Deepak Kumar Mitra
2
40. Of these names, the first 5 are all in the
family and stay in the same address at 2-6,
Biren Roy Road (E), Barisha, Kolkata. Mr. Arup
Chatterjee is also a relation of the family
staying in Brahma Samaj Road and only Mr.
Deepak Kumar Mitra, the Chartered Accountant,
is outside the family. Therefore, constitution
of such a Trust to run the school is clearly
against the ICSE norms.
41. It is thus clear that the allottee is
selectively seeking compliance of the ICSE
norms only in asking for a bigger plot. In so
far as other norms are concerned, they are
clearly flouted as seen in the constitution of
the Trust set up to run the school. Hence, the
argument on behalf of the appellant that the
plea of the allottee to ask for a bigger plot
in the name of complying with ICSE norms is not
a bona fide plea is of some substance. The
learned counsel for the allottee has not been
2
able to meet the said argument as to how the
ICSE norms are complied with if the school is
to be run by such a Trust, which consists of
members of the family and this court finds that
there is a lot of substance in this argument of
the appellants. This point was also urged
before the High Court but unfortunately the
High Court brushed aside this objection, if we
may say so with respect, by a very strange
logic by observing:
"We are not required to consider this
aspect of the matter because it will be
for the governing body of the ICSE to
examine the application which may be made
for recognition/affiliation of the school
which is yet to be established and
construction yet to be made. As and when
any application will be made for such
recognition/affiliation, the concerned
authority/body will consider the
application and it is not for this court
to speculate at this stage as to what
would be the composition of the
organization/body/ society which will
apply to Council for ICSE for
recognition/affiliation of the integrated
school."
2
42. This Court is of the view that a challenge to
the legality of an order of allotment of land
by the Government must be decided by the Court
on the basis of material available when the
High Court is examining the challenge. The High
Court cannot refuse to examine the challenge on
the basis of what may happen in future. By
doing so, High Court refused to exercise a
jurisdiction which is vested in it.
43. In connection with the fifth ground of
challenge, a map was produced before us by the
learned counsel for the appellant, which is a
working map in the absence of a master plan for
sector-I of Salt Lake area, dated 2.9.2004. In
that map, the plot CA-222 is marked as one
meant for a college yet the same has been given
to the allottee for establishing an ICSE
school. The learned counsel for the appellant
submits that such allotment is clearly in
violation of the aforesaid plan. The learned
2
counsel for the State has not been able to
refute the aforesaid contention of the
appellant.
44. However, it has been repeatedly urged, both by
the learned counsel for the State and also that
of the allottee that both the State Government
and the allottee had bona fide intentions of
establishing a school. Therefore, the court in
public interest should uphold allotment and
allow the school to be set up and should
refrain from interfering in public interest.
45. This court is unable to accept the aforesaid
contention.
46. It is axiomatic that in order to achieve a bona
fide end, the means must also justify the end.
This court is of the opinion that bona fide
ends cannot be achieved by questionable means,
specially when the State is involved. This
2
court has not been able to get any answer from
the State why on a request by the allottee to
the Hon'ble Minister for Urban Development, the
Government granted the allotment with
remarkable speed and without considering all
aspects of the matter. This court does not find
any legitimacy in the action of the Government,
which has to act within the discipline of the
constitutional law, explained by this Court in
a catena of cases. We are sorry to hold that
in making the impugned allotment in favour of
the allottee, in the facts and circumstances of
the case, the State has failed to discharge its
constitutional role. Recently this Court
relying on Ramana (supra), Kasturi Lal (supra)
and various other judgments summed up the legal
position in Akhil Bharatiya Upbhokta Congress
v. State of Madhya Pradesh and others reported
in JT 2011 (4) SC 311. The relevant extracts
from paragraph 31 (page 336 of the report) are
excerpted below:-
2
"...Every action/decision of the State
and/or its agencies/instrumentalities to
give largesse or confer benefit must be
founded on a sound, transparent,
discernible and well defined policy,
which shall be made known to the public
by publication in the Official Gazette
and other recognized modes of publicity
and such policy must be
implemented/executed by adopting a non-
discriminatory or non-arbitrary method
irrespective of the class or category of
persons proposed to be benefited by the
policy. The distribution of largesse
like allotment of land, grant of quota,
permit licence etc. by the State and its
agencies/instrumentalities should always
be done in a fair and equitable manner
and the element of favouritism or
nepotism shall not influence the exercise
of discretion, if any, conferred upon the
particular functionary or officer of the
State."
47. The Division Bench of the High Court, with
respect, fell into an error by holding that by
allotting plot no. CA-222 without open
advertisement and public offer the Government
action is not illegal or arbitrary.
48. In coming to the said conclusion, the Division
Bench relied on two decisions of the Supreme
Court rendered in the cases of Sachidanand
Pandey & another v. State of West Bengal &
others reported in (1987) 2 SCC 295 and Kasturi
Lal (supra). This Court however finds that
2
those two cases stand on completely different
footing.
49. First of all, in the instant case, the
Government initially issued advertisement for
allotment of land for setting up of a school
and to which the allottee responded.
Thereafter, a Committee considered all the
applications and decided to allot the land in
favour of the allottee. The matter rested
there. Then came the letter of the allottee
dated 19.1.2009, which has been set out above.
It is very surprising that the Division Bench
of Calcutta High Court, in paragraph 5 (page 6)
and paragraph 21 (page 18) of the impugned
judgment, recorded a finding that the allottee
was informed by ICSE that for obtaining
affiliation for integrated educational
institution, land should not be less than 60
kathas. This court fails to understand the
basis on which the Division Bench came to such
3
a conclusion. The letter of the allottee dated
19.1.2009 does not even whisper that he was
informed of any objection by ICSE. The letter
proceeds on a totally different basis. The
letter states that after going through the
norms of ICSE, it was the allottee's own
understanding that a plot of more than 60
kathas is necessary to take the school project
forward. Therefore, the High Court's recording
of fact, that the allottee was `informed' by
the ICSE of any objection, is not substantiated
by any material on record. This is a grave
error on the part of the High Court.
50. Apart from that, once the Government has
initiated the process of advertisement, it
cannot jettison the same and allot a new plot
to the allottee without any advertisement. This
action of the Government is certainly arbitrary
and violates the principles of Article 14.
3
51. Neither in Sachidanand Pandey (supra) nor in
Kasturi Lal (supra), any process of advertisement
was ever initiated. In Sachidanand Pandey (supra),
the main questions raised were issues of ecology
and environment. In that case, the court dealt with
the question of issuing public auction by
explaining that there were direct negotiations with
those who came forward to set up five star hotels,
to promote the tourism industry in the State.
Detailed considerations at different levels
proceeded for a very long time before the Taj group
of hotels, with sufficient experience in the hotel
industry, was selected. In the instant case, the
allottee may be a well-known sportsman but does not
claim any expertise as an educationist. Here within
a month of the application made by the allottee,
the allotment was made in a hot haste and without
disclosure by the State of any detailed
consideration. Thus, the present case stand poles
apart from the facts in Sachidanand Pandey (supra).
3
52. In Kasturi Lal (supra) also, the Government's
policy was to set up industries in Jammu and
Kashmir, which was not industrially developed and
thus entrepreneurs, within the State, were offered
encouraging terms for setting up industry.
Therefore, in such a situation the State took a
policy decision not to invite a tender or go in for
advertisement for inviting industrialists from
outside the State. It may be noted that at no
stage, advertisement was thought of by the State in
Kasturi Lal (supra).
53. In the instant case, the impugned allotment of
a different and bigger plot by the government in
favour of the allottee without any advertisement,
when initially advertisement was resorted to, and
then it was given up and everything was rushed
through in hot haste, is unreasonable and
arbitrary, and the High Court was wrong in
upholding the same.
3
54. Before I conclude, I make it clear that I am
aware that the allottee is a cricketer of great
repute and has led this country to victory in many
tournaments, both in India and abroad. I have
watched him on the television on many occasions and
was delighted to see his glorious cover drives and
effortlessly lofted shots over the fence. But as a
Judge, I have different duties to discharge. Here I
must be objective and eschew my likes and dislikes
and render justice to a cause which has come before
the Court.
55. For the reasons aforesaid,the order of
allotment of plot no. CA-222, Sector-V, Salt Lake
(Bidhannagar),Kolkata made in favour of Mr.Sourav
Ganguly,the allottee,is quashed. In consequence
thereof, the lease deed dated 1.4.09, pursuant to
such allotment stands quashed. The allottee must,
within two weeks from date, handover the peaceful
and vacant possession of plot No. CA-222 measuring
63.04 Kathas in Sector-V, Salt Lake City
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(Bidhannagar), Kolkata to the concerned department
of the State Government. Within two weeks
thereafter the State Government must refund to the
allottee, by a Cheque, the entire money paid by him
for such allotment.
56. The appeals are allowed. The order of the High
Court is set aside.
57. No order as to costs.
.......................J.
(G.S. SINGHVI)
.......................J.
New Delhi (ASOK KUMAR GANGULY)
May 26, 2011
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