Monday, August 1, 2016

Humanity v. State of Bengal

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 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."
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)

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.

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 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. 

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. 

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."

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.

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 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:-
"...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."

This court fails to understand the basis on which the Division Bench came to such 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.

  1. 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.

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.

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