Kerala High Court
Kuriakose vs The District Collector on 12 March, 2020
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 12TH DAY OF MARCH 2020 / 22ND PHALGUNA, 1941
WA.No.131 OF 2020
AGAINST THE JUDGMENT IN WP(C) 28453/2019(F) OF HIGH COURT OF
KERALA
APPELLANT/PETITIONER:
KURIAKOSE,
AGED 65 YEARS, S/O.CHACKO,
RESIDING AT PUTHUPARAMBIL KOOTTIKAL,
THALUNKAL P.O., KOTTAYAM - 686 514.
BY ADVS.
SRI.TITTO THOMAS
SRI.S.VAISAKH
SRI.R.REVIKUMAR
RESPONDENTS/RESPONDENTS:
1 THE DISTRICT COLLECTOR,
COLLECTORATE, KOTTAYAM - 686 001.
2 THE SUB COLLECTOR,
COLLECTORATE, KOTTAYAM - 686 001.
3 THE VILLAGE OFFICER,
MUNDAKAYAM, KANJIRAPALLY, KOTTAYAM - 686 513.
R1-3 BY SR. GOVERNMENT PLEADER SRI.V.TEKCHAND
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.03.2020,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.131 of 2020
2
"C.R."
JUDGMENT
Dated this the 12th day of March, 2020 S.Manikumar, C.J.
Challenge in this appeal is to the judgment made in W.P.(C) No.28453 of 2019 dated 26.11.2019, by which the writ court ordered thus:
"On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, and taking note of the averments in the counter affidavit filed on behalf of the respondent, I am of the opinion that Ext.P2 order of the District Collector, is not vitiated by any jurisdictional error and hence does not call for any interference by this Court. The writ petition in its challenge against Ext.P2 order therefore fails and is accordingly dismissed."
2. Short facts leading to the writ appeal are as hereunder:
The appellant is having a property with an extent of 44.4 Ares, comprised in Re.Sy.Nos.157/6, 157/7, 157/9/1 and 158/1-6 of Block No.1 of Mundakayam Village in Kanjirapally Taluk. Due to financial constraint, the appellant was constrained to sell the property. Some prospective purchasers came to purchase the said property at a value of Rs.8,000/-
per cent. But they have backtracked from purchasing on coming to know that the fair value of the property was Rs.38,000/- per Are. It is at that W.A.No.131 of 2020 3 time that the appellant came to know that the fair value of the property was fixed at Rs.38,000/- per Are. Hence an appeal was preferred to the District Collector and the same was rejected through Ext.P1 order. Ext.P1 order was passed without considering the recommendations and findings of the Sub Collector. As per the report of the Sub Collector, the category of the property can be recorded as garden land without road access, instead of residential plot without road access. It is also reported that the property is an agricultural land, without basic facilities. Hence reported that the fair value of the property can be reassessed as Rs.17,500/- per Are. But the impugned order of the District Collector is based on the erroneous finding that the property is a residential one, with private road access. Due to the anomaly in the fair value and market value of the property, the appellant was unable to sell the property which has infringed his right. Hence, writ petition was filed.
Writ court, after considering the pleadings and submissions of the parties, dismissed the writ petition as stated supra.
3. Being aggrieved, instant writ appeal is filed raising the following grounds:
i) The RDO, who is the competent authority to fix the fair value under section 28(A) of Stamp Act, fixed it as Rs.38,000/-
without considering the relevant aspects and site inspection. The appellant being aggrieved by this has preferred an appeal W.A.No.131 of 2020 4 before the District Collector. The main contention is that the appellant's property is lying as hill track without vehicular access. The District Collector had sought report from the RDO. Only thereafter, did the RDO exercise power and obtain report from Revenue officials who mad it after conducting site inspection. The report of the RDO enunciates the anomalies and errors in the fixation of fair value and recommended to fix the fair value as Rs.17,500/-. In such circumstances, the District Collector ought to have accepted the same and allowed the appeal. This vital aspect was not considered by the learned single Judge.
ii) The RDO has submitted Ext.P3 report on which the fair value is recommended at Rs.17,500/-. On the basis of this report fixation of fair value by the District Collector as Rs.38,000/- by Ext.P2 order rejecting the appeal is vitiated by illegality and arbitrariness. The learned single Judge had to consider this relevant aspect.
iii) The fair value of the appellant's property in Survey 157/6 though without private road access has been fixed at Rs.38,000/- per Are as the appellant's property in survey numbers 157/7, 157/9-1 and 158/1-6 lying contiguously are stated to have private road access as per Annexure R1(b) the fair value register. But Ext.P3 report establishes that the properties in the above Survey Numbers have not got any private road access. Hence the District Collector went wrong in issuing Ext.P2 order rejecting the appeal. Learned single Judge also failed to consider this aspect.
iv) Fixing the same fair value for property having road access and the property without road access itself shows that fixation of fair value is vitiated by non-application of mind and non-
W.A.No.131 of 2020 5consideration of relevant aspects.
v) The learned single Judge of this Hon'ble court and the District Collector misinterpreted the statement of the appellant that his property has a walkway as property having private road access. In fact as per Ext.P2 sale deed the appellant's property has no private road access.
vi) As per proforma report, the market value is to a maximum of Rs.20,000/- per Are. The fair value fixed by the District Collector is Rs.38,000/- per Are. The learned single Judge ought to have considered that the fixation of an exorbitant amount as fair value which disagrees with market value is against the principles of fixation of fair value and natural justice which infringes the right to live of the appellant.
vii) The 1st respondent stated that the fair value of the property is fixed as Rs.38,000/-, as the fair value of the properties in the same survey numbers is Rs.38,000/-. The learned single Judge ought to have found that fixation of same fair value for the properties in same survey number is unreasonable and unsustainable before law as it is not the criteria for fixing fair value.
viii) It is pertinent to note that the fair value register is prepared by the RDO. But the subsequent report of the RDO establishes that the fair value register is vitiated by non- compliance of procedure to be followed as per Rule 3 of the Kerala Stamp (Fixation of Fair Value of Land) Rules, 1995 and thereby caused serious prejudice to the appellant. But the District Collector and the learned single Judge have relied on such a fair value register which is arbitrary and against the principles of natural justice."
W.A.No.131 of 2020 64. On the above grounds and inviting the attention of this court to Section 28A(2) of the Kerala Stamp Act, 1959 and also to Ext.P3 report of the Tahsildar, Kanjirappally dated 16.11.2018, Mr.Titto Thomas, learned counsel for the appellant submitted that as per Ext.P3 report of the Tahsildar, Kanjirappally dated 16.11.2018, the category of the appellant's property has been described as "residential plot, without road access". He further submitted that the Tahsildar, in Ext.P3 report, has categorically stated that the appellant's property is situated in Mundakkayam Village in Vallitta Area, without road access. The property is cultivable land, without road access and basic facility. The property is seen to be recorded as Garden Land, without road access, instead of Residential plot, without road access. In the above circumstances, the Tahsildar has reported that the fair value of appellants property can be fixed at Rs.17,500/- per Are. Learned counsel for the appellant further submitted that the District Collector, Kottayam (respondent No.1), in Ext.P2 proceedings dated 30.6.2019, without considering the parameters to be taken note of in Section 28A(2), has arbitrarily fixed the fair value of the appellant's property, based on the fair value of the adjacent properties alone. He further submitted that the utility of the appellant's property, has not been taken note of, but the District Collector has considered a very limited factor, namely the location of the property W.A.No.131 of 2020 7 alone.
5. Reference has also been made to Rule 3 of the Kerala Stamp (Fixation of Fair Value of Land) Rules, 1995 wherein, certain parameters have been laid down for fixation of Fair Value. Mr.Titto Thomas, learned counsel for the appellant submitted that proceedings of the District Collector, Kottayam dated 30.6.2019 (Ext.P2) and the impugned judgment, have to be set aside for non-consideration of the statutory provisions.
6. Per contra, based on the instructions furnished by the Deputy Collector (LR) and inviting the attention of this court to Section 28A(4) of the Kerala Stamp Act, 1959, Mr.V.Tekchand, learned Senior Government Pleader submitted that the appeal filed before the District Collector, Kottayam (Respondent No.1) is barred by limitation. It is also his submission that private road leading to the appellant's property is a foot path having 0.6 metre width and the distance from the appellant's property to the vehicular access road is about 50 metre. The vehicular access road adjacent to the appellant's property is a private road which has 3 metre width. The road leads to a bus route (Valleetta-Koottickal Road) and the distance is about 205 metre. The topo sketch prepared by the Taluk Surveyor is enclosed with the statement.
7. Attention of this court was also invited to the rough location W.A.No.131 of 2020 8 sketch produced along with the memo filed by the learned Senior Government Pleader. Thus, he made submissions to sustain the order of the District Collector, Kottayam (respondent No.1) and that of the writ court.
8. Heard the learned counsel for the parties and perused the material available on record.
9. Section 28A of the Kerala Stamp Act, 1959 deals with the fixation of Fair Value of land. Section 28A reads thus:
"28A. Fixation of fair value of land.- (1) Every Revenue Divisional Officer shall, subject to such rules as may be made by the Government in this behalf, fix the fair value of the lands situate within the area of his jurisdiction, for the purpose of determining the duty chargeable at the time of registration of instruments involving lands.
(1A) Subject to such rules as may be prescribed, the fair value of land fixed under sub-section (1) may be revised by the Revenue Divisional Officer every five years or earlier if so directed by the Government, if in the opinion of the Government any substantial change of the fair value of land has taken place. (1B) Notwithstanding anything contained in this Act or the Rules made thereunder, the Government may, by notification published in the Official Gazette, make an increase of a fixed percentage in the fair value of land fixed as per sub-section (1), from time to time, before revision is made under sub-section (1A) and the value so increased shall be deemed to be the fair value of the land.W.A.No.131 of 2020 9
(2) The Revenue Divisional Officer shall, in fixing the fair value of a land under sub-section (1), have regard inter alia to the following matters, namely:-
(a) development of the area in which the land is situate such as the commercial importance, facilities for water supply, electricity, transport and communication;
(b) proximity of the land to markets, bus stations, railway stations, factories, educational institutions or other institutions;
(c) the geographical lie of the land, the nature of the land such as dry, waste, wet or garden land, fertility, nature of crop, yielding capacity and cost of cultivation; and
(d) such other matters as may be provided in the rules made under this Act.
(3) The fair value of land fixed under sub-section (1) and the revised fair value of land fixed under sub-section (1A) shall be published in such manner as may be provided in the rules made under this Act.
(4) Any person aggrieved by the fixation of fair value under sub-
section (1) or the revision of fair value under sub-section (1A) may, within one year of its publication under sub-section (3), appeal to the Collector.
(5) After the publication of the increased fair value of land under sub-section (1B) any person aggrieved by the fixation of fair value of land in an appeal under sub-section (4) may, within a period of one year from the date of publication of the notification under sub-section (1B), file an application to the Collector to review the order passed in appeal and the Collector shall dispose of the same in such manner and within such period as may be prescribed.
W.A.No.131 of 2020 10Provided that the Collector may admit an appeal preferred after the said period of one year if he is satisfied that the appellant had sufficient cause for not preferring the appeal within the said period."
Sub-section (2) sets out the parameters to be taken into consideration by the Revenue Divisional Officer, while fixing the fair value of land, in sub-
section (1).
10. Contention of the learned Senior Government Pleader that the appeal itself ought not to have been entertained, as it was time barred cannot be countenanced, at this juncture for the reason that, proviso to sub-section (5) of Section 28A of the Act enables the District Collector to admit an appeal preferred after the said period of one year, if he is satisfied that the appellant had sufficient cause for not preferring the appeal within the said period. In the case on hand, the District Collector had already entertained the appeal, and orders have been passed, rejecting the appeal. Therefore, it is too late, in the day, to raise such an objection.
11. In exercise of the powers conferred by Section 69 of the Kerala Stamp Act, read with Section 28A, 45A and 45C thereof, Government of Kerala have enacted the Kerala Stamp (Fixation of Fair Value of Land) Rules, 1995. Rule 3(1) of the Kerala Stamp (Fixation of Fair Value of W.A.No.131 of 2020 11 Land) Rules, 1995 deals with fixation of Fair Value of land, which reads thus:
3. Fixation of Fair Value of Land.- (1) The Revenue Divisional Officer, shall for the purpose of fixation of fair value as required under Section 28A of the Act, ascertain the fair value of land by classifying the lands as those lying in (i) Municipal Corporation Areas (ii) Municipalities and (iii) Rural areas.
12. As per sub-rule (3) of Rule 5 of the Kerala Stamp (Fixation of Fair Value of Land) Rules, 1995, the Collector shall examine the appeal taking into account all the factors relating to fair value of the land (including the average fair value of five similar or similarly situated plots, where such lands are available and take appropriate decision thereon provided that the petitioners shall be given a reasonable opportunity of being heard before taking a final decision. As per sub-rule (6) of Rule 5 of the said Rules, the Collector may call for or receive such evidence as is necessary including compensation awarded by a Court in land acquisition cases and valuation given for granting solvency certificates, for determining the Fair Value. As per sub-rule (7) of Rule 5, the Collector shall communicate the decision, either confirming or modifying the Fair Value fixed, to the appellant, the Sub Registrar and the Revenue Divisional Officer concerned.
W.A.No.131 of 2020 1213. Material on record discloses that subsequent to the filing of the appeal, the District Collector, Kottayam (respondent No.1) has called for a report from the Tahsildar, Kanjirappally. The report should be in a specific format, containing many columns, including the extent, survey number, category of property, etc. Three columns in the proforma report dated 16.11.2018 submitted by the Tahsildar, Kanjirappally which are relevant, for the purpose of this case, are extracted hereunder:
The category of the Residential plot, without road access appellants property The fair value Rs.17500 per Are recommended the appellants property (per Are) The circumstances The appellants property is situated in in which the fair Mundakayam Village in Vallitta Area value of the without road access. The above property appellants property is cultivable land without road access and is re-assessed basic facility. The above property is seen to be recorded as Garden Land without road access instead of Residential plot without road access. In the above circumstances, the information that the fair value of appellants property can be fixed at Rs.17,500/- per Are
14. Though the District Collector, Kottayam, in Ext.P2 dated 30.6.2019, has referred to the report of the Sub Collector dated 31.12.2018, there is no consideration, as to the contents of the report of the Tahsildar, Kanjirappally dated 16.11.2018, regarding the location of W.A.No.131 of 2020 13 the property, fair value suggested and also of the fact that, whether subject property has no road access. That apart, order of the District Collector dated 30.6.2019 also does not reflect to the consideration of the parameters enumerated in Section 28A(2) of the Kerala Stamp Act, 1959 and Rule 5 of the Kerala Stamp (Fixation of Fair Value of Land) Rules, 1995. Giving our anxious consideration to the provisions extracted supra, we are of the view that the District Collector is enjoined with a power coupled with a duty to consider the parameters for fixing the fair value. On the aspect of power coupled with duty, we deem it fit to consider few decisions:
(i) It is useful to refer as to what LORD CAIRNS said in Julius v.
Lord Bishop of Oxford, (1874-80) 5 AC 214 : 1847-80 All England Reporter 43 HL, considered in State (Delhi Admn.) v. I.K. Nangia and Another, [AIR 1979 SC 1977 : (1980) 1 SCC 258], held thus:-
"There may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something, in the conditions under which it is to be done, something in the title of the persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so."W.A.No.131 of 2020 14
(ii) Maxwell on Interpretation of Statutes, 11th Edn. at Page 231, referred to in State (Delhi Admn.) v. I.K. Nangia and Another (supra) case is reproduced hereunder:-
"Statutes which authorise persons to do acts for the benefit of others, or, as it is sometimes said, for the public good or the advancement of justice, have often given rise to controversy when conferring the authority in terms simply enabling and not mandatory. In enacting that they "may" or "shall, if they think fit", or, "shall have power", or that "it shall be lawful" for them to do such acts, a statute appears to use the language of mere permission, but it has been so often decided as to have become an axiom that in such cases such expressions may have-to say the least-a compulsory force, and so could seem to be modified by judicial exposition.
(Emphasis supplied)."
15. Reasons assigned for fixing the fair value of subject land without considering the above parameters and utility, except to state that the fair value in respect of the similar lands in the same Survey Number had been valued at Rs.38,000/- per Are, in our view, is erroneous and liable to be interfered with.
16. With due respect, writ court has not adverted to the duties and responsibilities cast on the District Collector, while considering the appeal, without reference to the statutory provisions. On the facts and W.A.No.131 of 2020 15 circumstances of the case, we deem it fit to consider as to whether, order of the District Collector, requires to be tested on the principles of judicial review, and whether the writ court has considered the same. On the aspect of judicial review, we deem it fit to consider few decisions:
(i) In Council of Civil Service Unions v. Minister for the Civil Service, reported in (1984) 3 All ER 935, Lord Diplock enunciated three grounds upon which an administrative action is subject to control by judicial review, viz. (i) illegality (ii) irrationality and (iii) procedural impropriety, as follows:
"By "illegality" he means that the decision-maker must understand correctly the law that regulates his decision- making power and must give effect to it, and whether he has or has not, is a justiciable question; by "irrationality"
he means "Wednesbury unreasonableness". It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided, could have arrived at it; and by "procedural impropriety" he means not only failure to observe the basic rules of natural justice or failure to act with procedural fairness, but also failure to observe procedural rules that are expressly laid down in the legislative instrument by which the tribunal's jurisdiction is conferred, even where such failure does not involve any denial of natural justice."
(ii) The principle of "Wednesbury unreasonableness" or irrationality, classified by Lord Diplock as one of the grounds for intervention in judicial review, was lucidly summarised by Lord Greene M.R. in Associated Provincial Picture Houses Ltd. Vs. Wednesbury Corpn., reported in (1948) 1 KB 223 = (1947) 2 All ER 680, as follows:
"...the court is entitled to investigate the action of the local authority with a view of seeing whether it has taken into account matters which it ought not to take into account, or W.A.No.131 of 2020 16 conversely, has refused to take into account or neglected to take into account matters which it ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that the local authority, nevertheless, have come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere."
(iii) In State of U.P. & Anr. Vs. Johri Mal, reported in (2004) 4 SCC 714, the Hon'ble Supreme Court observed thus:
"The scope and extent of power of the judicial review of the High Court contained in Article 226 of the Constitution of India would vary from case to case, the nature of the order, the relevant statute as also the other relevant factors including the nature of power exercised by the public authorities, namely, whether the power is statutory, quasi-judicial or administrative. The power of judicial review is not intended to assume a supervisory role or don the robes of the omnipresent. The power is not intended either to review governance under the rule of law or do the courts step into the areas exclusively reserved by the suprema lex to the other organs of the State. Decisions and actions which do not have adjudicative disposition may not strictly fall for consideration before a judicial review court."
(iv) In Rameshwar Prasad & Ors. (VI) v. Union of India & Anr., reported in (2006) 2 SCC 1, the Hon'ble Apex Court observed thus:
"A person entrusted with discretion must, so to speak, direct himself properly in law. He must call his attention to matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules he may truly be said to be acting unreasonably. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority.W.A.No.131 of 2020 17
It is an unwritten rule of law, constitutional and administrative, that whenever a decision-making function is entrusted to be subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote."
(v) In Jayrajbhai Jayantibhai Patel v. Anilbhai Jayanitbhai Patel and Ors., reported in (2006) 8 SCC 200, the Hon'ble Supreme Court in para 18 observed as under:-
"18. Having regard to it all, it is manifest that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards but no standardised formula, universally applicable to all cases, can be evolved. Each case has to be considered on its own facts, depending upon the authority that exercises the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society. Though judicial restraint, albeit self-recognised, is the order of the day, yet an administrative decision or action which is based on wholly irrelevant considerations or material; or excludes from consideration the relevant material; or it is so absurd that no reasonable person could have arrived at it on the given material, may be struck down. In other words, when a Court is satisfied that there is an abuse or misuse of power, and its jurisdiction is invoked, it is incumbent on the Court to intervene. It is nevertheless, trite that the scope of judicial review is limited to the deficiency in the decision- making process and not the decision."
The following passage from Professor Bernard Schwartz's book Administrative Law (Third Edition) aptly echo's our thoughts on the scope of judicial review:
W.A.No.131 of 2020 18"Reviewing courts, the cases are now insisting, may not simply renounce their responsibility by mumbling an indiscriminate litany of deference to expertise. Due deference to the agency does not mean abdication of the duty of judicial review and rubber-stamping of agency action: We must accord the agency considerable, but not too much deference; it is entitled to exercise its discretion, but only so far and no further."
Quoting Judge Leventhal from Greater Boston Television Corp. v. FCC, 444 F. 2d 841 (D.C.Cir. 1970), he further says:
"...the reviewing court must intervene if it "becomes aware...that the agency has not really taken a 'hard look' at the salient problems, and has not genuinely engaged in reasoned decision-making..."
(vi) In Ganesh Bank of Kurundwad Ltd. and others v. Union of India and others, reported in (2006) 10 SCC 645, the Hon'ble Supreme Court in paragraphs 50 and 51 observed as under:-
"50. There should be judicial restraint while making judicial review in administrative matters. Where irrelevant aspects have been eschewed from consideration and no relevant aspect has been ignored and the administrative decisions have nexus with the facts on record, there is no scope for interference. The duty of the court is (a) to confine itself to the question of legality; (b) to decide whether the decision making authority exceeded its powers (c) committed an error of law (d) committed breach of the rules of natural justice and (e) reached a decision which no reasonable Tribunal would have reached or (f) abused its powers. Administrative action is subject to control by judicial review in the following manner:
(i) Illegality.- This means the decision-maker must understand correctly the law that regulates his decision-
making power and must give effect to it.
W.A.No.131 of 2020 19 (ii) Irrationality, namely, Wednesbury
unreasonableness.
(iii) Procedural impropriety.
........Professor De Smith in his classical work "Judicial Review of Administrative Action" 4th Edition at pages 285- 287 states the legal position in his own terse language that the relevant principles formulated by the Courts may be broadly summarized as follows. The authority in which discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been authorized to do. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. These several principles can conveniently be grouped in two main categories: (i) failure to exercise a discretion, and (ii) excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body it acts ultra vires.
The court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability enumerated above; like illegality, irrationality and procedural impropriety."
(vii) In Bank of India v. T.Jogram reported in (2007) 7 SCC 236, the Hon'ble Supreme Court has held that it is well settled principle of law W.A.No.131 of 2020 20 that Judicial review is not against the decision, but is against the decision making process.
(viii) In State of Maharashtra v. Prakash Prahland Patil reported in (2009) 12 SCC 159, the Hon'ble Apex Court, at Paragraphs 5 and 6, held as follows:
"5. The scope for judicial review has been examined by this court in several cases. It has been consistently held that the power of judicial review is not intended to assume a supervisory role or don the robes of omnipresent. The power is not intended either to review governance under the rule of law nor do the courts step into the areas exclusively reserved by the supreme lex to other organs of the State. A mere wrong decision, without anything more, in most of the cases will not be sufficient to attract the power of judicial review. The supervisory jurisdiction conferred upon a court is limited to see that the authority concerned functions within its limits of its authority and that its decisions do not occasion miscarriage of justice.
6. The courts cannot be called upon to undertake governmental duties and functions. Courts should not ordinarily interfere with a policy decision of the State. While exercising power of judicial review the court is more concerned with the decision making process than the merit of the decision itself."
(ix) In All India Railway Recruitment Board v. K.Shyam Kumar reported in (2010) 6 SCC 614, the Hon'ble Supreme Court, held as follows:
"22. Judicial review conventionally is concerned with the question of jurisdiction and natural justice and the Court is not much concerned with the merits of the decision but how the decision was reached. In Council of Civil Service Unions v. Minister of State for Civil Service (1984) 3 All ER 935 the (GCHQ Case) the House of Lords rationalized the grounds of judicial review and W.A.No.131 of 2020 21 ruled that the basis of judicial review could be highlighted under three principal heads, namely, illegality, procedural impropriety and irrationality. Illegality as a ground of judicial review means that the decision maker must understand correctly the law that regulates his decision making powers and must give effect to it. Grounds such as acting ultra vires, errors of law and/or fact, onerous conditions, improper purpose, relevant and irrelevant factors, acting in bad faith, fettering discretion, unauthorized delegation, failure to act etc., fall under the heading "illegality". Procedural impropriety may be due to the failure to comply with the mandatory procedures such as breach of natural justice, such as audi alteram partem, absence of bias, the duty to act fairly, legitimate expectations, failure to give reasons etc.
23. Ground of irrationality takes in Wednesbury unreasonableness propounded in Associated Provincial Picture Houses Limited v. Wednesbury Corporation (1947)2 All ER 680, Lord Greene MR alluded to the grounds of attack which could be made against the decision, citing unreasonableness as an `umbrella concept' which covers the major heads of review and pointed out that the court can interfere with a decision if it is so absurd that no reasonable decision maker would in law come to it. In GCHQ Case (supra) Lord Diplock fashioned the principle of unreasonableness and preferred to use the term irrationality as follows:
"By `irrationality' I mean what can now be succinctly referred to as "Wednesbury's unreasonableness", ....... It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."
24. In R. v. Secretary of State for the Home Department ex parte Brind (1991) 1 All ER 720, the House of Lords re-examined the reasonableness of the exercise of the Home Secretary's discretion to issue a W.A.No.131 of 2020 22 notice banning the transmission of speech by representatives of the Irish Republican Army and its political party, Sinn Fein. Court ruled that the exercise of the Home Secretary's power did not amount to an unreasonable exercise of discretion despite the issue involving a denial of freedom of expression. House of Lords however, stressed that in all cases raising a human rights issue proportionality is the appropriate standard of review.
25. The House of Lords in R (Daly) v. Secretary of State for the Home Department (2001) 2 AC 532 demonstrated how the traditional test of Wednesbury unreasonableness has moved towards the doctrine of necessity and proportionality. Lord Steyn noted that the criteria of proportionality are more precise and more sophisticated than traditional grounds of review and went on to outline three concrete differences between the two:-
(1) Proportionality may require the reviewing Court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions.
(2) Proportionality test may go further than the traditional grounds of review in as much as it may require attention to be directed to the relative weight accorded to interests and considerations.
(3) Even the heightened scrutiny test is not necessarily appropriate to the protection of human rights.
Lord Steyn also felt most cases would be decided in the same way whatever approach is adopted, though conceded for human right cases proportionality is the appropriate test.
26. The question arose as to whether doctrine of proportionality applies only where fundamental human rights are in issue or whether it will come to provide all W.A.No.131 of 2020 23 aspects of judicial review. Lord Steyn in R. (Alconbury Development Limited) v. Secretary of State for the Environment, Transport and the Regions (2001) 2 All ER 929 stated as follows:-
"I consider that even without reference to the Human Rights Act, 1998 the time has come to recognize that this principle (proportionality) is part of English administrative law not only when Judges are dealing with Community acts but also when they are dealing with acts subject to domestic law. Trying to keep the Wednesbury principle and proportionality in separate compartments seems to me to be unnecessary and confusing".
Lord Steyn was of the opinion that the difference between both the principles was in practice much less than it was sometimes suggested and whatever principle was applied the result in the case was the same.
27. Whether the proportionality will ultimately supersede the concept of reasonableness or rationality was also considered by Dyson Lord Justice in R. (Association of British Civilian Internees: Far East Region) v Secretary of State for Defence [2003] QB 1397 and stated as follows:-
"We have difficulty in seeing what justification there now is for retaining Wednesbury test ..... but we consider that it is not for this Court to perform burial rights. The continuing existence of the Wednesbury test has been acknowledged by House of Lords on more than one occasion. A survey of the various judgments of House of Lords, Court of Appeals, etc. would reveal for the time being both the tests continued to co-exist."
28. Position in English Administrative Law is that both the tests that is. Wednesbury and proportionality continue to co-exist and the proportionality test is more and more applied, when there is violation of human rights, and fundamental freedom and the Wednesbury finds its presence more on the domestic law when there is violations of citizens ordinary rights. Proportionality principle has not so far replaced the Wednesbury principle W.A.No.131 of 2020 24 and the time has not reached to say good bye to Wednesbury much less its burial.
29. In Huang case (2007) 4 All ER 15 (HL), the House of Lords was concerned with the question whether denial of asylum infringes Article 8 (Right to Respect Family Life) of the Human Rights Act, 1998. House of Lords ruled that it was the duty of the authorities when faced with individuals who did not qualify under the rules to consider whether the refusal of asylum status was unlawful on the ground that it violated the individual's right to family life. A structured proportionality test has emerged from that decision in the context of the violation of human rights. In R (Daly) (supra) the House of Lords considered both common law and Article 8 of the convention and ruled that the policy of excluding prisoners from their cells while prison officers conducted searches, which included scrutinizing privileged legal correspondence was unlawful.
30. Both the above-mentioned cases, mainly concerned with the violation of human rights under the Human Rights Act, 1998 but demonstrated the movement away from the traditional test of Wednesbury unreasonableness towards the test of proportionality. But it is not safe to conclude that the principle of Wednesbury unreasonableness has been replaced by the doctrine of proportionality.
31. Justice S.B. Sinha, as His Lordship then was, speaking for the Bench in State of U.P., v. Sheo Shanker Lal Srivastava and Ors. (2006) 3 SCC 276 after referring to the judgment of the Court of appeal in Huang v. Secretary of State for the Home Department (2005) 3 All ER 435, R. v. Secretary of State of the Home Department, ex parte Daly (2001) 3 All ER 433 (HL) opined that Wednesbury principle may not now be held to be applicable in view of the development in constitutional law and held as follows:-
"24. While saying so, we are not oblivious of the fact that the doctrine of unreasonableness is giving way to the W.A.No.131 of 2020 25 doctrine of proportionality.
25. It is interesting to note that the Wednesbury principles may not now be held to be applicable in view of the development in constitutional law in this behalf. See, for example, Huang v. Secy. of State for the Home Deptt. wherein referring to R. v. Secretary of State of the Home Department, ex parte Daly, it was held that in certain cases, the adjudicator may require to conduct a judicial exercise which is not merely more intrusive than Wednesbury, but involves a full-blown merit judgment, which is yet more than ex p. Daly, requires on a judicial review where the court has to decide a proportionality issue."
32. Sheo Shanker Lal Srivastava case was later followed in Indian Airlines Ltd., v. Prabha D.Kanan (2006) 11 SCC
67. Following the above mentioned two judgments in Jitendra Kumar and Others v. State of Haryana and Another (2008) 2 SCC 161, the Bench has referred to a passage in HWR Wade and CF Forsyth on Administrative Law, 9th Edition. (2004), pages 371- 372 with the caption "Goodbye to Wednesbury" and quoted from the book which reads as follows:-
"The Wednesbury doctrine is now in terminal decline but the coup de grace has not yet fallen, despite calls for it from very high authorities" and opined that in some jurisdictions the doctrine of unreasonableness is giving way to doctrine of proportionality."
33. Indian Airlines Ltd.'s case and Sheo Shanker Lal Srivastava's case (supra) were again followed in State of Madhya Pradesh and Others v. Hazarilal, (2008) 3 SCC 273 and the Bench opined as follows:-
"Furthermore the legal parameters of judicial review have undergone a change. Wednesbury principle of unreasonableness has been replaced by the doctrine of proportionality.".
34. With due respect, we are unable to subscribe to that W.A.No.131 of 2020 26 view, which is an overstatement of the English Administrative Law.
35. Wednesbury principle of unreasonableness as such has not been replaced by the doctrine of proportionality though that test is being applied more and more when violation of human rights is alleged. H.W.R. Wade & C.F. Forsyth in the 10th Edition of Administrative Law (2009), has omitted the passage quoted by this court in Jitender Kumar case and stated as follows:
"Notwithstanding the apparent persuasiveness of these views the coup de grace has not yet fallen on Wednesbury unreasonableness. Where a matter falls outside the ambit of 1998 Act, the doctrine is regularly relied upon by the courts. Reports of its imminent demise are perhaps exaggerated." (emphasis applied).
36. Wednesbury and Proportionality - Wednesbury applies to a decision which is so reprehensible in its defiance of logic or of accepted moral or ethical standards that no sensible person who had applied his mind to the issue to be decided could have arrived at it. Proportionality as a legal test is capable of being more precise and fastidious than a reasonableness test as well as requiring a more intrusive review of a decision made by a public authority which requires the courts to `assess the balance or equation' struck by the decision maker. Proportionality test in some jurisdictions is also described as the "least injurious means" or "minimal impairment" test so as to safeguard fundamental rights of citizens and to ensure a fair balance between individual rights and public interest. Suffice to say that there has been an overlapping of all these tests in its content and structure, it is difficult to compartmentalize or lay down a straight jacket formula and to say that Wednesbury has met with its death knell is too tall a statement. Let us, however, recognize the fact that the current trend seems to favour proportionality test but Wednesbury has not met with its judicial burial and a state burial, with full honours is surely not to happen in W.A.No.131 of 2020 27 the near future.
37. Proportionality, requires the Court to judge whether action taken was really needed as well as whether it was within the range of courses of action which could reasonably be followed. Proportionality is more concerned with the aims and intention of the decision-maker and whether the decision- maker has achieved more or less the correct balance or equilibrium. Courts entrusted with the task of judicial review has to examine whether decision taken by the authority is proportionate, i.e. well balanced and harmonious, to this extent court may indulge in a merit review and if the court finds that the decision is proportionate, it seldom interferes with the decision taken and if it finds that the decision is disproportionate i.e. if the court feels that it is not well balanced or harmonious and does not stand to reason it may tend to interfere.
38. Leyland and Anthony on Textbook on Administrative Law (5th edn. OUP, 2005) at p.331 has amply put as follows:
"Proportionality works on the assumption that administrative action ought not to go beyond what is necessary to achieve its desired results (in every day terms, that you should not use a sledgehammer to crack a nut) and in contrast to irrationality is often understood to bring the courts much closer to reviewing the merits of a decision".
39. Courts have to develop an indefeasible and principled approach to proportionality till that is done there will always be an overlapping between the traditional grounds of review and the principle of proportionality and the cases would continue to be decided in the same manner whichever principle is adopted. Proportionality as the word indicates has reference to variables or comparison, it enables the Court to apply the principle with various degrees of intensity and offers a potentially deeper inquiry into the reasons, projected by the decision maker."
W.A.No.131 of 2020 28(x) In Union of India v. Rajasthan High Court reported in (2017) 2 SCC 599, the Hon'ble Supreme Court, at Paragraph 13, while discussing the scope of judicial review, held as follows:
"13. ........The powers under Article 226 are wide - wide enough to reach out to injustice wherever it may originate. These powers have been construed liberally and have been applied expansively where human rights have been violated. But, the notion of injustice is relatable to justice under the law. Justice should not be made to depend upon the individual perception of a decision maker on where a balance or solution should lie. Judges are expected to apply standards which are objective and well defined by law and founded upon constitutional principle. When they do so, judges walk the path on a road well-travelled. When judicial creativity leads judges to roads less travelled, in search of justice, they have yet to remain firmly rooted in law and the Constitution. The distinction between what lies within and what lies outside the power of judicial review is necessary to preserve the sanctity of judicial power. Judicial power is respected and adhered to in a system based on the rule of law precisely for its nuanced and restrained exercise. If these restraints are not maintained the court as an institution would invite a justifiable criticism of encroaching upon a terrain on which it singularly lacks expertise and which is entrusted for governance to the legislative and executive arms of government. Judgments are enforced, above all, because of the belief which society and arms of governance of a democratic society hold in the sanctity of the judicial process. This sanctity is based on institutional prestige. Institutional authority is established over long years, by a steadfast commitment to a calibrated exercise of judicial power. Fear of consequences is one reason why citizens obey the law as well as judicial decisions. But there are far stronger reasons why they do so and the foundation for that must be carefully preserved. That is the rationale for the principle that judicial review is confined to cases where there is a breach of law or of the Constitution."W.A.No.131 of 2020 29
(xi) In Royal Medical Trust v. Union of India reported in (2017) 16 SCC 605, the Hon'ble Supreme Court, on the scope of judicial review, held as follows:
"The principle of judicial review by the constitutional courts have been lucidly stated in many an authority of this Court. In Tata Cellular v. Union of India (1994) 6 SCC 651, dealing with the concept of Judicial Review, the Court held:-
"Lord Scarman in Nottinghamshire County Council v. Secretary of State for the Environment proclaimed:
'Judicial review' is a great weapon in the hands of the judges; but the judges must observe the constitutional limits set by our parliamentary system upon the exercise of this beneficial power." Commenting upon this Michael Supperstone and James Goudie in their work Judicial Review (1992 Edn.) at p. 16 say:
"If anyone were prompted to dismiss this sage warning as a mere obiter dictum from the most radical member of the higher judiciary of recent times, and therefore to be treated as an idiosyncratic aberration, it has received the endorsement of the Law Lords generally. The words of Lord Scarman were echoed by Lord Bridge of Harwich, speaking on behalf of the Board when reversing an interventionist decision of the New Zealand Court of Appeal in Butcher v. Petrocorp Exploration Ltd. 18-3- 1991." Observance of judicial restraint is currently the mood in England. The judicial power of review is exercised to rein in any unbridled executive functioning. The restraint has two contemporary manifestations. One is the ambit of judicial intervention; the other covers the scope of the court's ability to quash an administrative decision on its merits. These restraints bear the hallmarks of judicial control over administrative action.
Judicial review is concerned with reviewing not the merits of the decision in support of which the application for W.A.No.131 of 2020 30 judicial review is made, but the decision-making process itself."
After so stating, reference was made to the law enunciated in Chief Constable of the North Wales Police v. Evans (1982) 3 All ER 141 wherein, it has been ruled:-
"Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.
* * * Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."
45. In the said case, the Court also referred to R. v. Panel on Take-overs and Mergers, ex. P. Datafin plc (1987) 1 All ER 564 wherein Sir John Donaldson, M.R. Commented:-
"An application for judicial review is not an appeal."
46. The three Judge Bench further held:-
"The duty of the court is to confine itself to the question of legality. Its concern should be:
1. Whether a decision-making authority exceeded its powers?
2. Committed an error of law,
3. Committed a breach of the rules of natural justice,
4. Reached a decision which no reasonable tribunal would have reached or,
5. abused its powers."
47. The Court further opined that in the process of judicial review, it is only concerned with the manner in which the decisions have been taken. The extent of the W.A.No.131 of 2020 31 duty is to act fairly. It will vary from case to case. Explicating further, it ruled:-
"Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:
(i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury
unreasonableness.
(iii) Procedural impropriety.
The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, "consider whether something has gone wrong of a nature and degree which requires its intervention".
48. Thereafter, the Court referred to the authorities in R. v. Askew 20 and Council of Civil Service Unions v. Minister for Civil Service21 and further expressed:-
"At this stage, The Supreme Court Practice, 1993, Vol. 1, pp. 849-850, may be quoted:
"4. Wednesbury principle.-- A decision of a public authority will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the court concludes that the decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it. (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., per Lord Greene, M.R.)" We may hasten to add, though the decision was rendered in the context of W.A.No.131 of 2020 32 justification of grant of contract but the principles set out as regards the judicial review are of extreme significance.
49. Discussing at length, the principle of judicial review in many a decision, the two Judge Bench in Reliance Telecom Ltd. & Another v. Union of India & Another, has held:-
20 (1768) 4 Burr 2186 : 98 ER 139 21 (1985) 1 AC 374 :
(1984) 3 All ER 935 : (1984) 3 WLR 1174 22 (2017) 4 SCC 269 "As we find, the decision taken by the Central Government is based upon certain norms and parameters. Though criticism has been advanced that it is perverse and irrational, yet we are disposed to think that it is a policy decision which sub-serves the consumers' interest. It is extremely difficult to say that the decision to conduct the auction in such a manner can be considered to be malafide or based on extraneous considerations."
50. Thus analysed, it is envicible that the exercise of power of judicial review and the extent to which it has to be done will vary from case to case. It is necessary to state with emphasis that it has its own complexity and would depend upon the factual projection. The broad principles have been laid down in Tata Cellular (supra) and other decisions make it absolutely clear that judicial review, by no stretch of imagination, can be equated with the power of appeal, for while exercising the power under Article 226 or 32 of the Constitution, the constitutional courts do not exercise such power. The process of adjudication on merit by re-appreciation of the materials brought on record which is the duty of the appellate court is not permissible.
51. The duty of the Court in exercise of the power of judicial review to zealously guard the human rights, fundamental rights and the citizens' right of life and liberty as also many non-statutory powers of governmental bodies as regards their control over property and assets of various kinds. (See: Union of India and Anr. v S.B. Vohra 23)"
W.A.No.131 of 2020 3317. Giving due consideration to the materials on record, and the decisions cited supra, we are of the view that the order of the District Collector and the judgment of the writ court, requires to be adjudged, as to its correctness. In the light of the decisions, statutory provisions and for the reasons stated supra, Ext.P2 order of the District Collector, Kottyam dated 30.6.2019, as well as the impugned judgment, are liable to be set aside and accordingly set aside. District Collector, Kottyam (respondent No.1) is directed to consider the appeal afresh, in the light of the statutory provisions and the above discussion, within 45 days from the date of receipt of a copy of this judgment.
Writ appeal is allowed as above.
Sd/-
S.Manikumar, Chief Justice Sd/-
Shaji P.Chaly Judge vpv /TRUE COPY/ P.A. TO JUDGE