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.
- 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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