institute of law & ors. v. neeraj sharma & ors
TRANSCRIPT
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8/11/2019 Institute of Law & Ors. v. Neeraj Sharma & Ors.
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C.A. No. 2143 of 2007 1
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 M E N T
V. OPALA OWDA! J.
This appeal is directed against the two separate
impugned orders dated 14.2.2005 passed in Civil Writ
Petition No. 616 o! 2004 "# "oth the mem"ers o! the
$ivision %ench o! the &igh Court o! Pun'a" ( &ar#ana
at Chandigarh and against the order dated 26.04.2006
passed in Civil )isc. No. 5016 o! 2005 and Civil )isc.
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C.A. No. 2143 of 2007 2
No. 61*+ o! 2005. The "rie! !acts o! the case are
stated hereunder,-
2. The appellant-nstitute o! law was allotted the
land measuring 2/+*6.2+ s. #ards 5.*5 acres3 in
ector +/- in the nion Territor# o! Chandigarh at
the rate o! 7s.008- per s. #ard "# the
administration o! nion Territor# o! Chandigarh. The
rate was !i9ed "# the Chandigarh dministration vide
its Noti!ication No. +1818100-T: 4-200281/2+3 dated
*.+.2002 issued under the Pun'a" $evelopment
7egulation ct 152 !i9ing the land rates !or
allotment to educational institutions in the nion
Territor# o! Chandigarh. The allotment o! land was
made in !avour o! appellant-nstitute !or #ears on
lease hold "asis with the condition that the initial
lease period will "e ++ #ears and renewa"le !or two
li;e periods onl# i! the lessee continues to !ul!il
all conditions o! allotment.
+. The respondent No.1 Neera' harma !iled a Writ
Petition No.616 o! 2004 "e!ore the &igh Court o!
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Pun'a" and &ar#ana at Chandigarh uestioning the
legalit# and validit# o! the allotment o! land
involved in this case urging various grounds.
4.
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C.A. No. 2143 of 2007 4
5. ggrieved "# the orders the appellants !iled the
applications "eing Civil )isc. No. 5016 o! 2005 and
Civil )isc. No. 61*+ o! 2005 under 7ule +1 o! Chapter
4:3 o! the &igh Court 7ules and etters Patent urging that the
matter "e re!erred to another %ench or the !ull %ench
!or ad'udication on the points o! di!!erence.
6. The learned nominated =udge o! the &igh Court
disposed o! the Civil )isc. pplication Nos. 5016 o!
2005 and Civil )isc. No. 61*+ o! 2005 vide order dated
26.4.2006 holding that there was no point o!
di!!erence "etween the =udges o! the $ivision %ench on
the uestion o! maintaina"ilit# o! the writ petition
and the locus standio! the writ petitioner. t was
held "# him that although di!!erent reasons have "een
recorded "# the mem"ers o! the $ivision %ench the
conclusion recorded "# them on the issue o!
maintaina"ilit# o! the writ petition was the same. t
was !urther held that "oth the orders reveal a common
o"'ect i.e. the cancellation o! the allotment o! land
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C.A. No. 2143 of 2007 5
made in !avour o! the appellant-nstitute. The learned
=udge has !urther clari!ied that a process o! auction
"# necessar# implication reuires invitation to all
eligi"le prospective allottees through pu"lic notice
which will "e in con!ormit# with the constitutional
philosoph# under rticle 14 o! the Constitution o!
ndia. &aving clari!ied in the a!oresaid terms the
learned =udge dismissed "oth the applications.
*. The correctness o! "oth the separate orders dated
14.02.2005 delivered "# the $ivision %ench and the
order dated 26.4.2006 o! the learned nominated =udge
hearing Civil )isc. Nos. 5016 and 61*+ o! 2005 are
under challenge in this appeal !iled "# the
appellant-nstitute raising certain su"stantial
uestions o! law.
/. t was contended "# )r. Nidhesh ?upta the learned
senior counsel !or the appellant-nstitute that the
learned nominated =udge has erred in not appreciating
the separate orders passed "# the two learned =udges
o! the $ivision %ench o! the &igh Court who have
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given separate and distinct orders which are
a"solutel# con!licting in nature and had no
commonalit# at all. The learned =udge has !ailed to
appreciate that even the @post 'udgment scriptA one
o! the learned 'udge has clearl# spelt out the
di!!erences o! opinion "etween the two learned =udges
and on this "asis alone the matter ought to have "een
re!erred to a larger "ench.
. t was !urther contended that the &igh Court ought
to have noticed that the land involved in this appeal
had "een allotted to the appellant-nstitute a!ter
proper scrutin# and on the pu"lished and noti!ied
rates o! the land with a condition !or speci!ic uti-
liBation o! the land on lease hold "asis and that none
o! the town planning was a!!ected "# the allotment o!
land in uestion in !avour o! the appellant-nstitute
since the area o! land in uestion is situated in the
institutional area where educational institutions are
!unctioning.
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10. t was !urther contended that the &igh Court has
gravel# erred in not dismissing the writ petition on
the "asis o! lac; o! locus standio! the writ peti-
tioner who has !iled the writ petition !or personal
interest !or the reason that a residential site was
not allotted to him "# the dministration o! nion
Territor# o! Chandigarh.
11. The &igh Court has !urther erred in holding that
the appellants are in!luential persons there!ore the
land was allotted to them although no "asis whatso-
ever has "een shown in the impugned 'udgments.
12. The &igh Court has erred in not appreciating that
the allotment o! land in !avour o! the appellant-n-
stitute was made as per regular procedure adopted and
"eing !ollowed "# dministration o! nion Territor# o!
Chandigarh !or the last more than 50 #ears and there
was no deviation whatsoever !rom the said procedure in
allotting the land in !avour o! the appellant-nsti-
tute which is also non-pro!ita"le institute.
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1+. t is !urther contended that the land is not
auctioned "# the Chandigarh dministration "ut it has
allotted it to uali!ied persons8institutions on the
"asis o! the social and economic needs o! the cit# and
societ#. :urther the allotment o! land !or the
purposes o! esta"lishing educational institutions has
restrictions on the trans!er as well as usage and
there!ore it is di!!erent !rom the general land rates
viz.commercial and residential3 which have no such
restrictions and are !reel# mar;eta"le.
14. t is su"mitted that the land was allotted with
certain conditions a3 on leasehold "asis initiall#
!or ++ #ears "3 non trans!era"le directl# or
indirectl# and c3 usage was onl# !or law institute.
The appellant-nstitute deposited 25 o! the lease
amount with the administration o! nion Territor#
where upon the letter o! allotment dated 22.01.2004in
respect o! the land in uestion was issued in !avour
o! the appellant-nstitute.
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15. t is !urther su"mitted "# the learned senior
counsel that the writ petition du""ed as a Pu"lic
nterest >itigation !iled "# the respondent No. 1 is
!rivolous malicious and illegal as it does not
disclose the source o! in!ormation.
16.
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onl# which amounts to con!erring largesse upon them
which is not permissi"le in law and has caused huge
loss to the pu"lic e9cheuer.
1. t has "een !urther contended that according to
the rules !or allotment o! land in !avour o! schools
and other educational institutions no land can "e
allotted to an# institute without an advertisement and
inviting applications !rom the eligi"le persons.
20.
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"###$ Whether the allotment order o! land
made in !avour o! the appellant-nstitute is
in violation o! rticle 14 o! the
Constitution o! ndia along with the
applica"ilit# o! the Ellotment o! land to
Fducational nstitutions chools37ules etc.
on a >ease-hold "asis in Chandigarh cheme
16GD
"#%$ What
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allotted in !avour o! eligi"le persons "# !ollowing
the procedure laid down "# the Chandigarh
dministration and the same should not "e allowed to
"e suandered or sold awa# "# it at a throw awa# price
as it has "een done in the instant case as pointed out
"# its udit $epartment itsel! that there is a clear
loss o! a"out 7s.1+ crores to the pu"lic e9cheuer.
2+. t has also come to our notice that the settlement
o! the land in uestion in !avour o! the appellant-
nstitute was done within a !ew da#s without !ollowing
the mandator# procedure !or the allotment o! land. We
do not dou"t the intention o! the appellants to set up
the law institute however their private interest is
pitted against the pu"lic interest. The loss to the
pu"lic e9cheuer could have "een easil# avoided had
the land in uestion "een settled "# wa# o! pu"lic
auction inviting applications !rom eligi"le persons.
24. :urther as stated in the writ petition the
petitioner is a resident o! tate o! Pun'a" and is
also an ncome Ta9 Pa#ee. t has neither "een shown
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C.A. No. 2143 of 2007 13
nor proved "# the appellants that he is a i3
meddlesome interloper ii3 that he is acting under
malafide intention or iii3 that he has "een set up "#
someone !or settling his personal scores with
Chandigarh dministration or the allottee. $ealing
with the uestion o! locus standi o! the writ
petitioner we would li;e to re!er to certain
decisions o! this Court to hold that the writ petition
!iled "# the !irst respondent is a pu"lic interest
litigation to protect pu"lic interest. n the case o!
Fertilizer Corporation Kamgar Union (Regd.) Sindri &
Ors. v. Union of India & Ors.1, the constitutional
%ench o! this Court has held as under,-
E2-+0. HHWhere does the citiBen stand
in the conte9t o! the democrac# o! 'udi-
cial remedies a"sent an om"udsmanD n
the !ace o! rare #et real3 misuse o!
administrative power to pla# duc;s and
dra;es with the pu"lic e9cheuer espe-
ciall# where developmental e9pansion nec-
essaril# involves astronomical e9pendi-ture and concomitant corruption do pu"-
lic "odies en'o# immunit# !rom challenge
save through the post-mortem o! parlia-
mentar# organs. What is the role o! the
'udicial process read in the light o!
1AIR 1981 SC 344, (1981) 1 SCC 568
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the d#namics o! legal control and corpo-
rate autonom#D
III III III
4*. HHNevertheless the "road parameters
o! !airness in administration "ona !ides
in action and the !undamental rules o!
reasona"le management o! pu"lic "usiness
i! "reached will "ecome 'usticia"le.
4/. ! a citiBen is no more than a wa#-
!arer or o!!icious intervener without an#
interest or concern "e#ond what "elongs
to an# one o! the 660 million people o!
this countr# the door o! the court will
not "e a'ar !or him. %ut i! he "elongs
to an organisation which has special in-
terest in the su"'ect-matter i! he has
some concern deeper than that o! a "us#-
"od# he cannot "e told o!! at the gates
although whether the issue raised "# him
is 'usticia"le ma# still remain to "e
considered. there!ore ta;e the viewthat the present petition would clearl#
have "een permissi"le under rticle 226.G
(emphasis supplied3
imilarl# in the case o! S.P. Gpta v. Union of
India and !nr.2,this Court has categoricall# laid down
the law in relation to locus standi as under ,-
E1/HHwhenever there is a pu"lic wrong or
pu"lic in'ur# caused "# an act or omis-
sion o! the tate or a pu"lic authorit#
2(1981) Supp SCC 87
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C.A. No. 2143 of 2007 15
which is contrar# to the Constitution or
the law an# mem"er o! the pu"lic acting
"ona !ide and having su!!icient interest
can maintain an action !or redressal o!
such pu"lic wrong or pu"lic in'ur#. The
strict rule o! standing which insists
that onl# a person who has su!!ered a
speci!ic legal in'ur# can maintain an ac-
tion !or 'udicial redress is rela9ed and
a "road rule is evolved which gives
standing to an# mem"er o! the pu"lic who
is not a mere "us# "od# or a meddlesome
interloper "ut who has su!!icient inter-
est in the proceeding. There can "e no
dou"t that the ris; o! legal actionagainst the tate or a pu"lic authorit#
"# an# citiBen will induce the tate or
such pu"lic authorit# to act with greater
responsi"ilit# and care there"# improving
the administration o! 'usticeHHt is also
necessar# to point out that i! no one can
have standing to maintain an action !or
'udicial redress in respect o! a pu"lic
wrong or pu"lic in'ur# not onl# will the
cause o! legalit# su!!er "ut the peoplenot having an# 'udicial remed# to redress
such pu"lic wrong or pu"lic in'ur# ma#
turn to the street and in that process
the rule o! law will "e seriousl# im-
pairedH.
1. There is also another reason wh# the
7ule o! locus standi needs to "e li"er-
alised. Toda# we !ind that law is "eingincreasingl# used as a device o! organ-
ised social action !or the purpose o!
"ringing a"out socio-economic change. The
tas; o! national reconstruction upon
which we are engaged has "rought a"out
enormous increase in developmental activ-
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ities and law is "eing utilised !or the
purpose o! development social and eco-
nomic. t is creating more and more a new
categor# o! rights in !avour o! large
sections o! people and imposing a new
categor# o! duties on the tate and the
pu"lic o!!icials with a view to reaching
social 'ustice to the common manHH. n
other words the dut# is one which is not
correlative to an# individual rights. Now
i! "reach o! such pu"lic dut# were al-
lowed to go unredressed "ecause there is
no one who has received a speci!ic legal
in'ur# or who was entitled to participate
in the proceedings pertaining to the de-cision relating to such pu"lic dut# the
!ailure to per!orm such pu"lic dut# would
go unchec;ed and it would promote disre-
spect !or the rule o! law. t would also
open the door !or corruption and ine!!i-
cienc# "ecause there would "e no chec; on
e9ercise o! pu"lic power e9cept what ma#
"e provided "# the political machiner#
which at "est would "e a"le to e9ercise
onl# a limited control and at worstmight "ecome a participant in misuse or
a"use o! power. t would also ma;e the
new social collective rights and inter-
ests created !or the "ene!it o! the de-
prived sections o! the communit# meaning-
less and ine!!ectual.
20. HHH! pu"lic duties are to "e en-
!orced and social collective Edi!!usedGrights and interests are to "e protected
we have to utilise the initiative and
Beal o! pu"lic-minded persons and organi-
sations "# allowing them to move the
court and act !or a general or group in-
terest even though the# ma# not "e di-
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rectl# in'ured in their own rights. t is
!or this reason that in pu"lic interest
litigation J litigation underta;en !or
the purpose o! redressing pu"lic in'ur#
en!orcing pu"lic dut# protecting social
collective Edi!!usedG rights and inter-
ests or vindicating pu"lic interest an#
citiBen who is acting "ona !ide and who
has su!!icient interest has to "e ac-
corded standing. What is su!!icient in-
terest to give standing to a mem"er o!
the pu"lic would have to "e determined "#
the court in each individual case. t is
not possi"le !or the court to la# down
an# hard and !ast rule or an# strait-'ac;et !ormula !or the purpose o! de!in-
ing or delimiting Esu!!icient interestG.
t has necessaril# to "e le!t to the dis-
cretion o! the courtHHH
III III III
2+. We would there!ore hold that an#
mem"er o! the pu"lic having sufficientinterestcan maintain an action !or 'udi-
cial redress !or pu"lic in'ur# arising
!rom "reach o! pu"lic dut# or !rom viola-
tion o! some provision o! the Constitu-
tion or the law and see; en!orcement o!
such pu"lic dut# and o"servance o! such
constitutional or legal provisionHHG
Fmphasis supplied3
:urther in the case o! "attara# $at%#i %a'are v.
State of a%aras%tra & Ors., this Court held that
Pu"lic nterest >itigation is a weapon which has to "e
3( 2005) 1 SCC 590
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used with great care and circumspection. t has to "e
used as an e!!ective weapon in the armour# o! law !or
delivering social 'ustice to citiBens. The aim o!
Pu"lic nterest >itigation should "e to redress
genuine pu"lic wrong or pu"lic in'ur#.
25. t is clear to us that the respondent No. 1-the
writ petitioner has !iled a bonafidewrit petition and
he has the necessar# locus. There is an apparent
!avour shown "# the nion Territor# o! Chandigarh in
!avour o! the appellant-nstitute which is a pro!it
ma;ing compan# and it has not shown to this Court that
the allotment o! land in its !avour is in accordance
with law. &ence we are o! the view that there is a
strong reason to hold that the writ petition is
maintaina"le in pu"lic interest. We completel# agree
with the views ta;en "# the &igh Court wherein it has
rightl# held that the writ petition is a Pu"lic
nterest >itigation and not a Private nterest
>itigation. The writ petition in uestion is the !irst
petition !iled "# the !irst respondent and his !irst
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endeavor to ;noc; the doors o! the constitutional
court to protect the pu"lic interest "# issuing a writ
o! certiorar#.
26. The appellants have misera"l# !ailed to show the
malafideintention on the part o! the respondent No. 1
in !iling writ petition and we agree with the view o!
the then Chie! =ustice in his order who has held that
he is a pu"lic spirited person. The cause ventilated
"# him is de!initel# worth consideration and the
record o! the < udit3 su"mitted to the Chandigarh
dministration proves the allegations made "# him.
:urther it is o"served that &is F9cellenc# the
?overnor o! Pun'a"-cum-dministrator Chandigarh has
rightl# come to the conclusion in his decision that
the impugned allotment o! land in !avour o! the !irst
appellant-nstitute reuires ta;ing up o! corrective
steps. The dministration o! the nion Territor# o!
Chandigarh has con!erred largesse on the appellant-
nstitute "# allotting land in its !avour !or
inadeuate consideration without !ollowing procedure.
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There!ore we hold that the writ petition !iled "# the
!irst respondent is maintaina"le as the allotment o!
the land in uestion made in !avour o! the !irst
appellant-nstitute is ar"itrar# illegal and the same
is in violation o! rticle 14 o! the Constitution.
As'() *+ P+#* N+s. 2! 3 ,- 4
2*. We have care!ull# considered and e9amined the
uestion o! the legalit# o! the allotment order o! the
land made in !avour o! the appellant-nstitute. t is
su"mitted on "ehal! o! the !irst respondent that the
allotment o! pu"lic land at throw awa# price or at no
price to the private educational institutions with an
avowed o"'ect to serve the pu"lic interest is contrar#
to the theor# o! Echarita"le educationG that serve the
pious cause o! literac#. The a!orementioned legal
issue was visualiBed "# this Court and has lucidl#
laid down the law in the case o! Union of India & !nr.
v. *ain Sa+%a, $e' "el%i& !nr.4 wherein the plea o!
charita"le intentions or philanthropic goal "ehind the
4(1997) 1 SCC 164
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esta"lishment o! private educational institution was
not accepted "# this Court holding that ,-
E11HHwe thin; it appropriate to o"serve
that it is high time the ?overnment re-
views the entire polic# relating to al-
lotment o! land to schools and other
charita"le institutions. Where the pu"lic
propert# is "eing given to such institu-
tions practicall# !ree stringent condi-
tions have to "e attached with respect to
the user o! the land and the manner in
which schools or other institutions es-ta"lished thereon shall !unction. The
conditions imposed should "e consistent
with pu"lic interest and should alwa#s
stipulate that in case o! violation o!
an# o! those conditions the land shall
"e resumed "# the ?overnment. Not onl#
such conditions should "e stipulated "ut
constant monitoring should "e done to en-
sure that those conditions are "eing o"-
served in practice. While we cannot sa#an#thing a"out the particular school run
"# the respondent it is common ;nowledge
that some o! the schools are "eing run on
totall# commercial lines. &uge amounts
are "eing charged "# wa# o! donations and
!ees. The uestion is whether there is
an# 'usti!ication !or allotting land at
throw-awa# prices to such institutions.
The allotment o! land "elonging to thepeople at practicall# no price is meant
!or serving the pu"lic interest i.e.
spread o! education or other charita"le
purposesK it is not meant to ena"le the
allottees to ma;e mone# or pro!iteer with
the aid o! pu"lic propert#. We are sure
that the ?overnment would ta;e necessar#
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measures in this "ehal! in the light o!
the o"servations contained herein.G
2/. :urther in another case this Court set aside the
allotments o! land made "# the allotment committee
even though most o! the allottees had constructed the
"uildings "ecause the allotment Committee had not
!ollowed an# rational or reasona"le criteria !or
inviting the applications !or the allotment o! land
through an open advertisement. 7eliance is placed on
the decision o! this Court in $e' India P+li S%ool
& Ors. v.-U"! and Ors.5,which states as under,-
E4HHHThere!ore the pu"lic authorities
are reuired to ma;e necessar# speci!ic
regulations or valid guidelines to e9er-cise their discretionar# powersK other-
wise the salutar# procedure would "e "#
pu"lic auction. The $ivision %ench
there!ore has rightl# pointed out that
in the a"sence o! such statutor# regula-
tions e9ercise o! discretionar# power to
allot sites to private institutions or
persons was not correct in law.G
2. :urther we have to re!er to the case o! !%il
/%arti0a Up+%ota Congress v. State of .P. & Ors.1,
5(1996) 5 SCC 5106(2011) 5 SCC 29
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wherein this Court has succinctl# laid down the law
a!ter considering catena o! cases o! this Court with
regard to allotment o! pu"lic propert#as under ,
E50. :or achieving the goals o! 'ustice
and eualit# set out in the Pream"le the
tate and its agencies8instrumentalities
have to !unction through political
entities and o!!icers8o!!icials at
di!!erent levels. The laws enacted "#
Parliament and the tate >egislatures
"estow upon them powers !or e!!ective
implementation o! the laws enacted !orcreation o! an egalitarian societ#. The
e9ercise o! power "# political entities
and o!!icers8o!!icials !or providing
di!!erent ;inds o! services and "ene!its
to the people alwa#s has an element o!
discretion which is reuired to "e used
in larger pu"lic interest and !or pu"lic
goodHHn our constitutional structure no
!unctionar# o! the tate or pu"lic
authorit# has an a"solute or un!ettereddiscretion. The ver# idea o! un!ettered
discretion is totall# incompati"le with
the doctrine o! eualit# enshrined in the
Constitution and is an antithesis to the
concept o! the rule o! law.
III III III
54. n Breenv. Amalgamated Engg. Union>ord $enning )7 said, L% p. 10 %-C3
@H The discretion o! a statutor#
"od# is never un!ettered. t is a
discretion which is to "e e9ercised
according to law. That means at
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C.A. No. 2143 of 2007 24
least this, the statutor# "od# must
"e guided "# relevant
considerations and not "#
irrelevant. ! its decision is
in!luenced "# e9traneous
considerations which it ought not
to have ta;en into account then
the decision cannot stand. No
matter that the statutor# "od# ma#
have acted in good !aithK
nevertheless the decision will "e
set aside. That is esta"lished "#
Padfield v. Minister of
Agriculture, Fisheries and Food
which is a landmar; in modernadministrative law.A
55. n Laer Air!a"s Ltd. v. #eptt. of
$rade >ord $enning discussed prerogative
o! the )inister to give directions to
Civil viation uthorities overruling the
speci!ic provisions in the statute in the
time o! war and said, L% p. *05 :-?3
@eeing that the prerogative is a
discretionar# power to "e
e9ercised !or the pu"lic good it
!ollows that its e9ercise can "e
e9amined "# the courts 'ust as an#
other discretionar# power which is
vested in the e9ecutive.A
56. This Court has long ago discarded the
theor# o! un!ettered discretion. n %.&.'aisinghaniv. Union of (ndia 7amaswami
=. emphasised that a"sence o! ar"itrar#
power is the !oundation o! a s#stem
governed "# rule o! law and o"served, 7
p. 14+4 para 143
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C.A. No. 2143 of 2007 25
)*+. n this conte9t it is
important to emphasise that the
a"sence o! ar"itrar# power is the
!irst essential o! the rule o! law
upon which our whole constitutional
s#stem is "ased. n a s#stem
governed "# rule o! law
discretion when con!erred upon
e9ecutive authorities must "e
con!ined within clearl# de!ined
limits. The rule o! law !rom this
point o! view means that decisions
should "e made "# the application
o! ;nown principles and rules and
in general such decisions should"e predicta"le and the citiBen
should ;now where he is. ! a
decision is ta;en without an#
principle or without an# rule it is
unpredicta"le and such a decision
is the antithesis o! a decision
ta;en in accordance with the rule
o! lawHH..A
III III III
5. n asturi Lal Lashmi -edd"v. %tate
of ' %hagwati =. spea;ing !or the Court
o"served, CC pp. 1+-14 para 143
)*+. Where an# governmental action
!ails to satis!# the test o!
reasona"leness and pu"lic interest
discussed a"ove and is !ound to "ewanting in the ualit# o!
reasona"leness or lac;ing in the
element o! pu"lic interest it would
"e lia"le to "e struc; down as
invalidHHH.A
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C.A. No. 2143 of 2007 26
61. The Court also re!erred to the reasons
recorded in the orders passed "# the
)inister !or award o! dealership o! petrol
pumps and gas agencies and o"served,
/ommon /ause case CC p. 554 para 243
@24. H While rticle 14 permits a
reasona"le classi!ication having a
rational ne9us to the o"'ective
sought to "e achieved it does not
permit the power to pic; and choose
ar"itraril# out o! several persons
!alling in the same categor#.
transparent and o"'ective
criteria8procedure has to "e evolvedso that the choice among the mem"ers
"elonging to the same class or
categor# is "ased on reason !air
pla# and non-ar"itrariness. t is
essential to la# down as a matter o!
polic# as to how pre!erences would
"e assigned "etween two persons
!alling in the same categor#H.A
62. n %hrileha 0id"arthi v. %tate of
U.P.the Court uneuivocall# re'ected the
argument "ased on the theor# o! a"solute
discretion o! the administrative
authorities and immunit# o! their action
!rom 'udicial review and o"served, CC
pp. 2+6 2+-403
)12. t can no longer "e dou"ted
at this point o! time that rticle14 o! the Constitution o! ndia
applies also to matters o!
governmental polic# and i! the
polic# or an# action o! the
?overnment even in contractual
matters !ails to satis!# the test
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C.A. No. 2143 of 2007 27
o! reasona"leness it would "e
unconstitutionalHH.G
n the light o! the a"ove mentioned cases we have to
record our !inding that the discretionar# power con-
!erred upon the pu"lic authorities to carr# out the
necessar# 7egulations !or allotting land !or the pur-
pose o! constructing a pu"lic educational institution
should not "e misused.
+0. We !urther hold that the !undamental right to
esta"lish and run an educational institution in terms
o! rticle 1 13g3 o! the Constitution is su"'ect to
reasona"le restrictions under rticle 163 o! the
Constitution o! ndia. There!ore the tate is within
its competence to prohi"it EcommercialiBation o!
educationG.
+1. n odern S%ool v. Union of India and Ot%ers2
supra3 this Court has held thus ,-
E*2. o !ar as allotment o! land "# the
$elhi $evelopment uthorit# is con-
cerned su!!ice it to point out that the
same has no "earing on the en!orcement
7(2004) 5 SCC 583
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o! the provisions o! the ct and the
7ules !ramed thereunder "ut indisputa"l#
the institutions are "ound "# the terms
and conditions o! allotment. n the
event such terms and conditions o! al-
lotment have "een violated "# the allot-
tees the appropriate statutor# authori-
ties would "e at li"ert# to ta;e appro-
priate step as is permissi"le in law.G
+2. We there!ore disregard the plea o! charita"le
intention or philanthropic goal "ehind the
esta"lishment o! the appellant educational institution
as the esta"lishment o! the same does not serve an#
pu"lic interest and we cannot allow the allottee to
ma;e mone# or pro!iteer with the aid o! the pu"lic
propert#.
++. :urther on a care!ul evaluation o! the
statutor# o"'ect "ehind clause 1/ o! the Ellotment o!
>and to Fducational nstitutions chools37ules Ftc.
on >ease &old "asis in Chandigarh cheme 16G no
s#stematic e9ercise has "een underta;en "# the
dministration o! Chandigarh to identi!# the needs o!
di!!erent ;inds o! pro!essional institutions reuired
to "e esta"lished in Chandigarh. We thus concur with
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C.A. No. 2143 of 2007 29
the reasoning o! the &igh Court in the impugned orders
that the creening Committee comprising o! senior and
responsi"le !unctionaries allotted the institutional
sites in !avour o! the allottee without !ollowing an#
o"'ective criteria and polic#. The creening Committee
acted in a manner which is contrar# to the principles
laid down "# this Court in the 'udgments cited a"ove
in allotting the land in uestion in !avour o! the
!irst appellant. We there!ore conclude that the &igh
Court has rightl# held that the polic# !ollowed "# the
Chandigarh dministration where the allotment o! land
was done in !avour o! the appellant-nstitute without
giving an# pu"lic notice and in the a"sence o! a
transparent polic# "ased upon o"'ective criteria and
without even e9amining the !act that the nion
Territor# o! Chandigarh is alread# under e9treme
pressure o! over population and even in the case o!
allotment o! school sites "# ma;ing no attempt to
en!orce clause 1/ o! the cheme 16 there"#
con!ining the said provision merel# to the statute
"oo; is ar"itrar# unreasona"le and un'ust and is
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C.A. No. 2143 of 2007 30
opposed to the provisions o! rticle 14 o! the
Constitution o! ndia.
+4. We now come to the opinion e9pressed "# the then
Chie! 'ustice in his order which was concurred "# the
nominated =udge hearing the Civil )isc. pplications
that although di!!erent reasons have "een recorded "#
the mem"ers o! the $ivision %ench in their order who
have disposed o! CWP No.616 o! 2004 the conclusion
arrived at "# them was the same. There!ore the order
passed "# the then Chie! =ustice cannot "e said to
have rendered a di!!erent opinion so as to attract the
applica"ilit# o! 7ule +1 o! Chapter 4 para : o! the
&igh Court 7ules and etters Patent.
+5. perusal o! the directions contained in the
orders o! the &igh Court reveals a common e!!ect i.e.
the allotment o! the institutional plot made in !avour
o! the appellant-nstitute stands cancelled as it did
not con!orm to the constitutional philosoph# enshrined
in rticle 14 o! the Constitution o! ndia. This was
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C.A. No. 2143 of 2007 31
also conceded "# the learned nominated =udge o! the
&igh Court hearing the Civil )isc. No.5016 o! 2005 and
Civil )isc. No. 61*+ o! 2005.Thus there appears to
"e a"solutel# no point o! di!!erence or divergence
"etween the then Chie! 'ustice and the companion
puisne =udge who have issued directions to the
dministration o! the nion Territor# o! Chandigarh.
t has rightl# "een pointed out "# the nominated =udge
that there ma# apparentl# seem to "e a di!!erence in
the thought process and also the relative rigour o!
the e9pressions used "# "oth the learned =udges #et
it has not "een possi"le to conclude that there was
an# divergence in the directions recorded in their
separate views.
+6. We thus hold that the impugned order passed "#
the learned puisne =udge which was concurred "# the
then Chie! =ustice "# his separate order and the order
o! the third nominated =udge holding that there is no
di!!erence o! opinion in the orders o! the $ivision
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C.A. No. 2143 of 2007 32
%ench are legal and valid and do not reuire an#
inter!erence "# this Court.
+*. t is needless to state that certain
o"servations made in the impugned orders against some
o! the appellants and the respondents are totall#
unwarranted and the same are e9punged.
+/. n view o! the !oregoing reasons we do not !ind
an# reason to inter!ere with the impugned orders in
e9ercise o! this CourtAs appellate 'urisdiction. The
appeal is accordingl# dismissed. The order dated
16.04.200* granting sta# shall stand vacated.
J. SUDHANSU J/OTI MUHOPADHA/A
J.
V. OPALA OWDA
N(' D(#!
S(*(56() 1! 2014