Himachal Pradesh High Court
Surinder Kumar vs State Of H.P. And Others on 15 July, 2015
Bench: Mansoor Ahmad Mir, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 3862 of 2014.
Judgment reserved on 13.7.2015 Date of decision: 15th July, 2015.
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Surinder Kumar ..... Petitioner.
Versus State of H.P. and others. ....Respondents Coram:
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 Yes.
For the petitioner:
For the respondents:
r toMr. Bhupinder Advocate.
Roach, proxy counsel for Mr. Pankaj Sharma, Mr. Shrawan Dogra, Advocate General with Mr. Anup Rattan and Mr. Romesh Verma, Additional Advocate Generals, & J.K. Verma, Deputy Advocate General.
_______________________________________________ Mansoor Ahmad Mir, Chief Justice.
The petitioner, by the medium of this writ petition, has invoked the jurisdiction of this Court for quashing the notification dated 18.2.2014 (Annexure P1) issued by the respondents whereby sub-Tehsil has been created at Jole in Bangana Tehsil in District Una with further prayer that the same be set up at Chowki Minar, 1 Whether the reporters of Local Papers may be allowed to see the judgment ?::: Downloaded on - 15/04/2017 18:34:36 :::HCHP -2-
Tehsil Bangana District Una, on the grounds taken in the writ petition.
2. The petitioner has stated in para 2 of the writ .
petition that he is a social worker, public spirited person and right to information activist. He has neither filed this writ petition in representative capacity nor has sought leave of this Court to file it as such, in terms of Order 1 Rule 8 of the Code of Civil Procedure, for short "CPC".
3. This writ petition has also not been diarized as a Public Interest Litigation. However, respondents have filed the reply and have stated that the Government has taken a conscious decision for setting-
up of new sub-Tehsil at Jole in Bangana Tehsil in District Una, in terms of notification dated 18.2.2014 (AnnexureP1) and have given details for setting-up of the said sub-Tehsil at Jole in the reply.
4. The petitioner has also not taken any ground in the writ petition that the decision for setting up of a new sub-Tehsil at the aforesaid place, suffers from arbitrariness or is malafide. He has not arrayed any officer(s) in his/their personal capacity as respondents in the array of the respondents.
::: Downloaded on - 15/04/2017 18:34:36 :::HCHP -3-5. The creation of sub-Tehsil at some place is entirely in the domain of the Executive not of any other agency. The Court cannot interfere unless it is prima .
facie illegal or suffers from arbitrariness. This Court has dealt with this issues in CWP No. 621 of 2014 titled Nand Lal and another versus State of H.P. and others decided on 21.5.2014. It is apt to reproduce paras 9 to 17 of the said judgment herein.
"9.
r to The Apex Court in Sidheshwar Sahakari Sakhar Karkhana Ltd. Vs. Union of India and others, 2005 AIR SCW 1399, has laid down the guidelines and held that Courts should not interfere in policy decision of the Government, unless there is arbitrariness on the face of it.
10. The Apex Court in a latest decision reported in Manohar Lal Sharma Vs. Union of India and another, (2013) 6 SCC 616, also held that interference by the Court on the ground of efficacy of the policy is not permissible. It is apt to reproduce paragraph 14 of the said decision as under:
"14. On matters affecting policy, this Court does not interfere unless the policy is unconstitutional or contrary to the statutory provisions or arbitrary or irrational or in abuse of power. The impugned policy that allows FDI up to 51% in multi-brand retail trading does not appear to suffer from any of these vices."::: Downloaded on - 15/04/2017 18:34:36 :::HCHP -4-
11. The respondents in their reply have specifically averred that they have considered the issue and it was found that Village Ramshehar is at the distance of 19 kilometers from the existing .
Government College at Nalagarh, whereas the distance between the Government College Nalagarh and Diggal is 40 kilometers and the justification for opening a Government College at Diggal was found more appropriate than at Ramshehar, as per the norms and policy. It is apt to reproduce paras 3 to 5 of the reply herein:
"3 to 5.That in reply to these paras, it is submitted that on the demand of the people of Ramshehar area feasibility report was sought from Principal, Govt. College Nalagarh through Director of Higher Education. From the perusal of report it is revealed that Ramshehar is at the distance of 19 km from the existing Govt. College Nalagarh. As per norms/guidelines the distance of existing nearby College to proposed college shall not be usually less than 25 Kms.
The distance condition can be relaxed depending upon the need of the area/town where the existing Colleges are overcrowded and having the enrolment of students more than 3000 but the enrolment of G.C. Nalagarh is only 1855 which is at a distance of 19 Km from Ramshehar. Keeping in view the norms for opening of new Govt. College and on the basis of report submitted Principal of Govt. College Nalagarh, the proposal was examined carefully and was turned down."
12. The petitioners have filed rejoinder to the reply filed by the respondents and have not specifically denied the said pleadings contained in the reply.
13. The respondents have also specifically pleaded in their reply that the decision was made after ::: Downloaded on - 15/04/2017 18:34:36 :::HCHP -5- taking all aspects in view. It is apt to reproduce paras 6 & 7 of the reply herein:-
"6 & 7. That in reply to this para it is submitted that both the proposals/feasibility reports in .
respect of opening of new Govt. College at Ramshehar and at Diggal was received. From the perusal of the report it is gathered that GC Nalagarh is at the distance of 19km from Ramshehar, whereas nearest Colleges to Diggal are GC Nalagarh and GC Arki at the distance of 38 and 40km respectively. Hence if the College is notified at Ramshehar instead of Diggal then the genuine dema of the people of Diggal area would be ignored, who are in dire need of College. It is worthwhile to mention here that out of 13 fedding Senior Secondary Schools of Ramshehar area 6 schools i.e. Digal, Badhalag, Chandi, Chmadhar, Goyla and Chhiachhi are more approachable/near to Diggal instead of Ramshehar."
14. The Apex Court in the case titled as Mrs. Asha Sharma versus Chandigarh Administration and others, reported in 2011 AIR SCW 5636 has held that policy decision cannot be quashed on the ground that another decision would have been more fair, wise, scientific or logical and in the interest of society. It is apt to reproduce para 10 herein:
"10. The Government is entitled to make pragmatic adjustments and policy decisions, which may be necessary or called for under the prevalent peculiar circumstances. The Court may not strike down a policy decision taken by the Government merely because it feels that another decision would have been more fair or wise, scientific or logic. The principle of reasonableness and nonarbitrariness in governmental action is the core of our ::: Downloaded on - 15/04/2017 18:34:36 :::HCHP -6- constitutional scheme and structure. Its interpretation will always depend upon the facts and circumstances of a given case. Reference in this regard can also be made to Netai Bag v. State of West Bengal [(2000) 8 SCC 262 : (AIR 2000 SC 3313)]."
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15. It appears that the respondents have examined all aspects and made the decision. Thus, it cannot be said that the decision making process is bad. The Court can not sit in appeal and examine correctness of policy decision. The Apex Court in the case titled as Bhubaneswar Development Authority and another versus Adikanda Biswal and others, reported in (2012) 11 SCC 731 laid down the same principle. It is apt to reproduce para 19 of the judgment herein:
"19. We are of the view that the High Court was not justified in sitting in appeal over the decision taken by the statutory authority under Article 226 of the Constitution of India. It is trite law that the power of judicial review under Article 226 of the Constitution of India is not directed against the decision but is confined to the decision making process. The judicial review is not an appeal from a decision, but a review of the manner in which the decision is made and the Court sits in judgment only on the correctness of the decision making process and not on the correctness of the decision itself. The Court confines itself to the question of legality and is concerned only with, whether the decision making authority exceeded its power, committed an error of law, committed a breach of the rules of natural justice, reached an unreasonable decision or abused its powers."
16. It is not known that in which capacity, the petitioners have filed the present writ petition and whether they have sought permission to file the writ ::: Downloaded on - 15/04/2017 18:34:36 :::HCHP -7- petition in the representative capacity or as Public Interest Litigation.
17. We find no ground for interference in this writ petition, hence it is dismissed alongwith all pending .
application(s), if any."
6. The similar principles of law have also been laid down by this Court in CWP No. 9480 of 2014 alongwith connected matter titled Vijay Kumar Gupta versus State of H.P. and others decided on 9.1.2015 and CWP No. 4625 of 2012 titled Gurbachan versus State of H.P. and others decided on 15.7.2014.
7. Applying the test in this case, neither any arbitrariness is shown nor any malafide is alleged. The only grievance projected by the petitioner is that the place at Chowki Minar Tehsil Bangana District Una, is more suitable place for creation of sub-Tehsil in view of the territory of adjoining District Dharamshala. Thus, it means that the grievance of the petitioner is that the second decision was also possible, but that cannot be a ground to quash the notification.
8. The apex Court in case titled Mrs. Asha Sharma v. Chandigarh Administration & Ors.
::: Downloaded on - 15/04/2017 18:34:36 :::HCHP -8-reported in 2011 AIR SCW 5636 has held that the policy decision cannot be questioned on the ground that another decision would have been more fair or wise, .
scientific or logical and in the interest of the society. It is apt to reproduce para 10 of the said judgment herein.
"10.The Government is entitled to make pragmatic adjustments and policy decisions, which may be necessary or called for under the prevalent peculiar circumstances. The Court may not strike down a policy decision taken by the Government merely because it feels that another decision would have been more fair or wise, scientific or logical. The principle of reasonableness and non-arbitrariness in governmental r action is the core of our constitutional scheme and structure. Its interpretation will always depend upon the facts and circumstances of a given case. Reference in this regard can also be made to Netai Bag v. State of West Bengal, 2000 8 SCC 262."
9. The apex Court in another case titled State of U.P. & Ors v. Chaudhari Ran Beer Singh & Anr.
Reported in 2008 AIR SCW 2296 held that the Court cannot substitute its own judgment for the judgment of the executive. It is apposite to reproduce para 12 of the said judgment herein.
"12. Cabinet's decision was taken nearly eight years back and appears to be operative. That being so there is no scope for directing reconsideration as was done in Ram Milan's case, though learned counsel for the ::: Downloaded on - 15/04/2017 18:34:36 :::HCHP -9- respondents prayed that such a direction should be given. As rightly contended by learned counsel for the State, in matters of policy decisions, the scope of interference is extremely limited. The policy decision must be left to the Government as it alone can decide .
which policy should be adopted after considering all relevant aspects from different angles. In matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown. Courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the government the Court cannot interfere even if a second view is possible from that of the Government."
10. Having glance of the above discussion, the writ petition merits dismissal and is accordingly dismissed, alongwith pending applications, if any.
(Mansoor Ahmad Mir) Chief Justice.
July 15, 2015. (Tarlok Singh Chauhan) (cm Thakur) Judge ::: Downloaded on - 15/04/2017 18:34:36 :::HCHP