Institute of Law & Ors. v. Neeraj Sharma & Ors.

8/11/2019 Institute of Law & Ors. v. Neeraj Sharma & Ors.

1/32Page 1

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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C.A. No. 2143 of 2007 3

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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C.A. No. 2143 of 2007 6

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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C.A. No. 2143 of 2007 7

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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C.A. No. 2143 of 2007 8

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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C.A. No. 2143 of 2007 9

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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C.A. No. 2143 of 2007 10

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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C.A. No. 2143 of 2007 11

"###$ 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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C.A. No. 2143 of 2007 12

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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C.A. No. 2143 of 2007 14

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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C.A. No. 2143 of 2007 16

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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C.A. No. 2143 of 2007 17

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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C.A. No. 2143 of 2007 18

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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C.A. No. 2143 of 2007 19

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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C.A. No. 2143 of 2007 20

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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C.A. No. 2143 of 2007 21

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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C.A. No. 2143 of 2007 22

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


23/32Page 23

C.A. No. 2143 of 2007 23

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


24/32Page 24

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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C.A. No. 2143 of 2007 28

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


30/32Page 30

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

Institute of Law & Ors. v. Neeraj Sharma & Ors.

Documents

Transcript of Institute of Law & Ors. v. Neeraj Sharma & Ors.