Kerala High Court
K. Anil Kumar vs The State Of Kerala on 10 February, 2021
Author: S.Manikumar
Bench: S.Manikumar, A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942
WP(C).No.14401 OF 2009(S)
PETITIONER:
K. ANIL KUMAR, S/O. VELAYUDHAN,
KADASSERI, ERANHIPALAM P.O., KOZHIKODE-673 006.
BY ADVS. SRI.P.T.MOHANKUMAR
SRI.A.RANJITH NARAYANAN
RESPONDENTS:
1 THE STATE OF KERALA,
THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.
2 THE CORPORATION OF KOZHIKODE,
REPRESENTED BY ITS SECRETARY,
OFFICE OF THE, CORPORATION OF KOZHIKODE,
BEACH ROAD, KOZHIKODE.
3 VILASINI STELLA SUKUMARAN,
5/2233, THALIYEDATH PARAMBA, ASOKAPURAM, KOZHIKODE.
4 P.M.SOUDAMINI,
5/2233, THALIYEDATH PARAMBA, ASOKAPURAM, KOZHIKODE.
5 MINI KALATHIL, W/O. MANOJ NAMBIYATTIL,
ASOKAPURAM, KOZHIKODE.
BY SMT. MERRY GEORGE, ADVOCATE COMMISSIONER
R2 BY ADV. SRI.K.D.BABU SC, KOZHIKODE CORPORATION
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-12-
2019, THE COURT ON 10-02-2021 DELIVERED THE FOLLOWING:
W.P.(C).No.14401/2009 2
"C.R"
JUDGMENT
Dated this the 10th day of February, 2021 S.Manikumar, CJ.
Being aggrieved by the decision of the Corporation of Kozhikode, represented by its Secretary, respondent No.2, as per the resolution dated 06.07.2007 (Exhibit-P2), approved by the State of Kerala, respondent No.1, vide orders dated 01.01.2008 and 18.03.2008 (Exhibits-P3 and P4) respectively, instant public interest writ petition has been filed seeking to quash the same.
2. Petitioner has also sought for a direction commanding respondent No. 2 to keep the property referred to in Exhibits-P2 to P4 in trust for the benefit of public for widening the road, and for providing public amenities.
3. Petitioner has stated that he is resident of St.Vincent Colony, Asokapuram in Kasaba village, Kozhikode taluk, which is very close to National Highway 212 leading to Wayanad. According to the petitioner, Jawahar Nagar Housing Colony and St.Vincent Colony are two major residential colonies situated in the above locality. For the purpose of formation of colonies and roads, land was acquired by the Government, in accordance with the procedure contemplated under the Land Acquisition Act, 1894 and the same was handed over to Calicut Development W.P.(C).No.14401/2009 3 Authority, who, by virtue of the powers conferred under the Madras Town Planning Act, 1920, developed the land for formation of Jawahar Nagar Housing Colony.
4. Petitioner has further stated that apart from the internal colony roads, a separate road was laid connecting Christian College-Thiruthiyad Cross road and Rarichan road, as a part of the Housing Scheme and for the formation of the said road, private properties comprised in Town Survey Nos.706/1 and 700/3 were acquired. Besides, there was an existing public land comprised in T.S. No.712, which is situated adjacent to T.S.No.706. It is submitted that Calicut Development Authority has now become functus officio and the 2nd respondent is now vested with the powers of the said authority. Now, the above said road vests with the Corporation of Kozhikode under Section 207 of the Municipality Act, 1994.
5. The issue raised by the petitioner is that Corporation of Kozhikode, respondent No.2, as per Exhibit-P2 resolution dated 6.7.2007 has decided to sell a portion of the property acquired for public road to respondents 3 to 5, and the State of Kerala, represented by the Secretary, Local Self Government Department, Thiruvananthapuram, respondent No.1, has approved the same. According to the petitioner, the decision taken to sell the above said public property is tainted with malafides. W.P.(C).No.14401/2009 4
6. Petitioner has contended that Kerala Municipality Act, 1994 does not empower the 2nd respondent to sell land appurtenant to the public road for reasoning whatsoever. According to him, the concept of vesting public roads on the 2nd respondent does not mean absolute and unfettered right for sale of property which forms part of the road. He has further contended that land acquired for public purpose and earmarked for road development under Town Planning Schemes is not liable to be sold to individuals and that Town Planning Schemes are framed for development of urban areas.
7. In support of his contention, petitioner has relied on a decision of a Hon'ble Division Bench of this Court in Thalassery Municipality v. Puthalath Balakrishnan reported in 2019 (3) KLT 154, wherein it is held as follows:
"9. A reading of the provisions of the Act, 2016 and the Municipality/Panchayat Building Rules indicates that the DTP Schemes prepared under the Act, 2016 are to have overriding effect over the provisions of the Building Rules. Accordingly, the procedure under S.67 has to be followed in case the project envisaged under the DTP Scheme involves acquisition of land by the Local Authorities as a pre-requisite for implementing the proposal.
10. The provisions of S.67 of the Act, 2016 are intended to balance the conflicting rights of the State and the private individual. While the State has the right to reserve lands for W.P.(C).No.14401/2009 5 development proposals in public interest, the said right cannot be exercised in a manner designed to frustrate the Constitutional rights of the private individual under Art.300A, to deal with his property in the manner he chooses. A balance is therefore struck by directing the State to take affirmative action for implementing the proposal within a specified time - frame, failing which, the private individual is to be given the unfettered freedom to use his land for other permissible purposes.
............
12. The above provision in the Act, 2016 would imply that where any land is designated for compulsory acquisition in the Town Planning Scheme but no acquisition proceedings are initiated within a period of two years from the date of coming into operation of the Plan, the owner or the affected person may serve a purchase notice, requiring the authority to purchase the interest in the land. If any such purchase notice is served, within 60 days from the date of receipt, the authority is statutorily required to decide on acquisition of the property. If the land is designated for any Government Department or other authorities, the information on the receipt of purchase notice is to be forwarded to the said authority. In case decision is taken by the concerned authority not to acquire the land, variation of the development plan should be made. Even otherwise, when the land acquisition could not be effected within two years from the date of resolution to acquire the land, the authorities are required under sub-section (5) of S.67 of the Act, to initiate suitable variation of the Plan. As can be seen, the statutory consequences for failure of the authority to W.P.(C).No.14401/2009 6 acquire the land notified under the Town Planning Scheme is clearly delineated. Thus the Act, 2016 itself suggests that the property owner cannot be indefinitely deprived of his right to enjoy the property, without finality on the acquisition of the land, earmarked under the DTP Scheme."
8. Petitioner has also relied on a decision of the Hon'ble Supreme Court in State of Kerala v. Bhaskaran Pillai reported in (1997) 5 SCC 432, wherein it is stated thus:-
"In view of admitted position that the land in question was acquired under the Land Acquisition Act, 1894 by operation of S.16 of the Land Acquisition Act, it stood vested in the State free from all encumbrances. The question emerges: whether the Government an assign the land to the erstwhile owners? it is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilised for the public purpose envisaged in the Directive Principles of the Constitution. In the present case, what we find is that the executive order is not in consonance with the provision of the Act and is therefore, invalid. Under these circumstances, the Division Bench is well justified in declaring the executive order as invalid. Whatever assignment is made, should be for a public purpose. Otherwise the land of the Government should be sold only through the public auctions so that the public also gets benefited by getting higher value."W.P.(C).No.14401/2009 7
9. Corporation of Kozhikode, respondent No.2, has filed a counter statement dated 18.06.2009, wherein it is contended that the road mentioned in the writ petition is having a width of 12 metres, developed by Calicut Development Authority, for implementation of DTP Schemes for Sector 8 of Jawahar Nagar Housing Colony (JNHC). The side of the road was also developed by CDA.
10. It is further contended that the road was formed after acquiring the land under the Kerala Land Acquisition Act, 1894. The land comprised in T.S. Nos.706/1, 700/8 and 712 was acquired by the Special Tahsildar (LA) vide Award No.1/83. The CDA developed a 12 metres road, viz., C3C3 road, as envisaged in the DTP Scheme for Ward 5, Sector 8 of Calicut Corporation, for access to the housing colony developed by the CDA. The general public is also using this road and the volume of vehicular transport through this road is very low, as it is only an internal road. At present, there is no proposal to link the housing colony road to any other road. The road is already connected to bye-pass through JNHC.
11. It is further contended that after formation of the road (about 23 years back), a very small strip of land in the shape of a long triangle remained as road puramboke. This has happened due to acquisition of additional land to avoid a small piece of land of the original owner be W.P.(C).No.14401/2009 8 separated out to the other side of the road. According to the Corporation, respondents 3 to 5 approached the Calicut Development Authority, on 16.6.2002 to allot vacant land to them, on outright sale, stating that dumping of work and repair of heavy vehicles in the night causes much nuisance to the peaceful living in that area. All the applicants are sharing common boundary with the remnant piece of land.
12. It is further contended that Calicut Development Authority has considered the request of the applicants and as per resolution No.(11)C on 26.4.2003, authorised its Chairman to discuss the matter with the applicants and to allot the land after negotiation. On 19.07.2003, the Chairman of CDA discussed the matter with the applicants in the presence of the Town Planner, EE and AO. The applicants offered Rs.35,000/- per Cent, which according to them, was less than the amount incurred by the Authority for acquiring and developing that land. Therefore, in the Executive Committee meeting held on 4.11.2003 vide resolution No.8, it was resolved to examine the possibility of giving the land on annual lease to the applicants, in order to avoid inconvenience due to the misuse of the land by anti-social elements. As there was a legal hurdle to allot the land on lease to the applicants and considering the repeated representations from the applicants, the Executive Committee of CDA vide resolution No.13 W.P.(C).No.14401/2009 9 dated 28.5.2005, resolved to form a Sub Committee, including the Chairman of CDA, Mayor of Kozhikode Corporation, Superintending Engineer, PWD and Secretary of CDA to submit a report regarding the matters relating to allotment of the land on lease.
13. It is further contended that the Sub Committee visited the site on 3.2.2006 and reported that access to the plot by the three applicants, viz., Smt.Vilasini Stella Sukumaran, Smt.P.M.Soudamini and Smt. Mini Kalathil, respondent Nos.3 to 5, is through the remnant piece of land and sale of this plot to any other party would cause inconvenience to them. Hence, the Sub Committee recommended to sell the remnant piece of land to the respondents after fixing cost of land based on the expenditure of the CDA to acquire and develop the area.
14. It is further contended that considering the proposal of the Sub Committee, the Executive Committee of CDA vide Resolution No.18(5) dated 4.2.2006 resolved to allot part of land in front of the plot of the applicants at the rate of Rs.1.25 lakhs per Cent.
15. It is further contended that when action was taken to register the land to the applicants, one Sri.C.Mohan, a former owner of the land, filed W.P(C) No.15587 of 2006 before this Court. However, this Court by interim order dated 25.09.2006 [Ext.R2(b)] ordered that Calicut W.P.(C).No.14401/2009 10 Development Authority can sell the land to eligible persons. On 5.10.2006, the said authority issued notice to the allottees to remit cost of land and charge for shifting the existing drain. Thereafter, on 12.10.2006, W.P.(C) No.15587 of 2006 was dismissed as infructuous.
16. It is further contended that allottees have remitted land value and cost of shifting of land as under:
Name Cost of Land Chalan/Cheque No. Charge for CH. No. and Date shifting drain Vilasini Stella Rs.3,13,125 Ch.39/9.10.06 199001 40/9.1006 Sukumaran P.M.Soudamini Rs.3,36,500 006567 27300 153719 9.10.06 153320 SBT Mini Kalathil Rs.69,375 Ch.47/10.10.06 4800 Ch.45/10.10.06
17. By land value Certificate No.B1.12504/07 dated 27.07.2007, the District Collector has certified the land value at the rate of Rs.1,25,000/- per Cent.
18. Respondent No.2 has further contended that before registering the deed, CDA has been wound up to form Development Wing of Kozhikode Corporation vide Government order G.O(MS) No.98/07/LSGD dated 30.3.2007 and, therefore, Government of Kerala vide letter No.48271/ G3/06/LSGD directed approval from Kozhikode Corporation Council for sale of the land. As per resolution No.3 dated 6.7.2008, W.P.(C).No.14401/2009 11 Kozhikode Corporation Council approved the proposal for sale of 5.572 Cents of land in Ward 5, Block 16, T.S. No.712/1, 700/3, 706/1 at the rate of 1.25 lakhs per Cent to respondent Nos.3 to 5. Thereafter, Government, by G.O (Rt) No.4/08/LSGD dated 1.1.2008, accorded permission for sale of the land. Later, G.O(Rt) No.810/08/LSGD dated 18.3.2008 was issued to rectify an omission of Survey No.712/1 on 23.1.2008. The plots were registered in the name of allotees in the Government order dated 1.1.2008.
19. Corporation has contended that G.O.(Rt) No.4/08/LSGD dated 01.01.2008, is the order sanctioning sale of 5.572 cents of land comprised in T.S. Nos.700/3, 706/01 to the petitioners. G.O.(Rt) No.810/08/LSGD dated 18.03.2008 was issued to correct the Government order dated 01.01.2008. The land comprised in T.S. No.712/1 is part and parcel of land acquired by the Special Tahsildar for the formation of a 12 metres road as per the specification sanctioned 23 years back.
20. Corporation has further contended that the property mentioned here i.e., 5.572 cents of land in T.S. Nos.700/3, 706/1 and 712/1 is not the land earmarked for parks or any amenities. It is a remnant piece of land in the shape of a long triangle, which could not be used by anyone independently other than the respondents, who share common boundary with it. The land could not be used for widening. It is also a small width of W.P.(C).No.14401/2009 12 land having a shape of a very long triangle. In the light of the above, Kozhikode Corporation has sought for dismissal of the writ petition.
21. Record of proceedings in this writ petition shows that, by order dated 13.07.2009, this Court appointed Adv. Smt. Merry George as an Advocate Commissioner to inspect the place with notice to the writ petitioner and submit a report within ten days. It was further ordered that it would be open to the parties to file work memo before the Commissioner.
22. On the basis of the said direction, the learned Advocate Commissioner has filed a report dated 17.08.2009 along with answers to the work memo submitted by the petitioner. In the report, the learned Advocate Commissioner has stated that the disputed property is on the western side of C3C3 road or Jawahar Nagar Colony road and respondent Nos.3 to 5 have their properties on its western side. Respondent Nos.3 and 4 have houses in their property and there is no residential building in the property of the 5 th respondent. In the property of the 3 rd respondent, there are two houses; one belongs to her daughter. It is reported that C3C3 road can be used as an alternative route to reach other parts of Kozhikode city and the road starts from Ashokapuram junction, which is situated in the Balan K. Nair road. The said road is on the eastern direction W.P.(C).No.14401/2009 13 of NH 212 or Wayanad road. C3C3 road proceeds to the north and then takes a diversion in Kottaram junction towards the east and links with the mini bypass leading to NH 17. The disputed property is a major portion of a vacant land, which is in a triangular shape. The length of the western side of the disputed property is 30.5 metres measured from the drainage on the north-western side of Geetham building to the north-eastern side of 4th respondent's property. It is further reported that on the basis of the present situation, the assignment of the disputed property is not against public interest and respondents 3 and 4 and the daughter of the 3 rd respondent are the using pathway, for ingress and egress to their respective properties. There are two gates having a width of 2 metres and 1.25 metres, which open to the disputed property from the property of the 3rd respondent, which is used by her and her daughter, and it is connecting the pathway having a width of four feet. A three feet pathway is seen in front of the house of 4th respondent and there is a gate opening to the said pathway having a width of 2 metres. The said pathways are used by respondents 3 and 4 and daughter of the 3 rd respondent for their access to C3C3 road. There is no pathway in front of the 5 th respondent's property, but there is a gate having a width of 3 metres, which is closed and covered with bushes. The properties of respondent Nos.3 to 5 are separated by W.P.(C).No.14401/2009 14 compound walls from each other. It is further reported that the assignment of disputed property is not causing any inconvenience to the public and for the time being, widening of the road is not necessary. The only visible nuisance reported is deposit of plastic waste and non degradable substances in the drainage though Corporation has annexed a warning board on the compound wall of the 3rd respondent's property.
23. Heard learned counsel for the parties and perused the materials available on record.
24. Materials on record disclose that as per Exhibit-P2 resolution, an extent of 5.72 cents of land comprised in T.S. Nos.706/1, 712/1 and 700/3 in Block No.16 of Ward 5 was decided to be sold to respondents 3 to 5 at Rs.1.25 lakhs per cent. Said resolution is reproduced:
"Kozhikode Corporation Council MINUTES Sl. No............... Council................ Reference ............... Standing Committee.......
In view of the vesting of the assets and liabilities of the Calicut Development Authority on the Corporation of Kozhikode, the Government has, vide letter dated 04/05/2007, directed the Kozhikode Corporation Council to get the approval of the Council of the Corporation in order to and take a decision in respect of sale of the above property. The Standing Committee vide its Resolution No.1 dated 13/06/2007, recommended the matter for consideration of the Corporation Council.W.P.(C).No.14401/2009 15
The matter is placed for the consideration and for a decision of the Corporation Council.
Amount allotted in the Budget ...............
Amount so far spent ...............
Amount remaining unspent ...............
Amount now to be allotted ...............
Sd/- Sd/-
Secretary Mayor
For Secretary Chairman
"Kozhikode Corporation Council
Resolution No.4 Council........................
..............Standing Committee
Dated. 28/06/07
Adjourned
Sd/-
30/06
Resolution No.3
It is hereby resolved to inform the Government that it is agreeable to sell the land to Smt. Vilasini, Stella Sukumar, Smt. P. M. Soudamini and Kalathil Mini, having a total extent inclusive of 2.505 Cents, 2.692 Cents and 0.555 cents of land respectively, comprised in Survey Nos.712/1, 700/03, 706/1, comprised in Ward 5, Block 16 of the Kozhikode Development Authority at the rate of 1,25,000/- per cent.
Order M BHASKARAN
MAYOR
W.P.(C).No.14401/2009 16
Reference: Sd/-
Mayor/Chairman/President
25. G.O.(Rt) No.4/08/LSGD dated 1.1.2008 (Exhibit-P3) is extracted hereunder:
"GOVERNMENT OF KERALA Abstract Local Self Government Department-Kozhikode Development Authority-Assets and liabilities handed over to the Corporation of Kozhikode-Sale of remnant piece of land- Permission granted- orders issued.
LOCAL SELF GOVERNMENT (IA) DEPARTMENT G.O.(Rt) No.4/08/LSGD Dated, Thiruvananthapuram, 1.1.2008 Read:- 1) Representation dated 3.9.07 from Smt.Vilasini Stella Sukumaran and others submitted before Government.
2) Lr. No.1141/P1/02/VV dated 15/10/07 from the Secretary, Kozhikode Corporation.
ORDER Smt. Vilasini Stella Sukumaran and 2 others, as per representation read as 1st paper above have requested Government Sanction for selling to them remnant triangular piece of land having an area of 5.572 cents adjacent to their house owned by CDA (Wound up).
Government have examined the case in detail, taking into account the specific recommendations put in by Secretary, Kozhikode Corporation as per letter read as 2nd paper above, and are pleased to accord permission to Secretary, Kozhikode Corporation to sell 5.572 Cents of land comprised in T.S. W.P.(C).No.14401/2009 17 No.706/01, 700/03 in Block No.16 of Ward No.5 of Kozhikode Corporation to Smt. Vilasini Stella Sukumaran (2.505 Cents), Smt. P.M.Soudamini (2.692 cent) and Smt. Mini Kalathil (0.555 Cent) alll at Rs.1.25 lakhs (Rupees One lakh and Twenty five thousand only) per cent fixed by the Deputy Tahsildar (LA) as the fair market value for the area.
By order of the Governor T.K.JOSE SECRETARY"
26. G.O.(Rt) No.810/08/LSGD dated 18.03.2008 (Exhibit-P4) is extracted hereunder:
"GOVERNMENT OF KERALA Abstract Local Self Government Department-Kozhikode Development Authority-Assets and liabilities handed over to the Corporation of Kozhikode-Sale of remnant piece of land- Modified-Orders issued.
LOCAL SELF GOVERNMENT (IA) DEPARTMENT G.O.(Rt) No.810/08/LSGD Dated, Thiruvananthapuram, 18.3.08 Read:- 1) G.O.(Rt) No.4/08/LSGD dated 1/1/08.
2) Lr. No.1141/P1/02/DW dated 22/2/08 from the Secretary, Kozhikode Corporation.
ORDER As per the Government order read as 1 st paper above, permission has accorded to the Secretary, Kozhikode Corporation to sell 5.572 cents of land comprised in T.S. No.706/1, 700/03 in Block No.16 of Ward No.5 of Kozhikkode Corporation to Smt. Vilasini Stella Sukumaran, Smt. P.M.Soudamini and Smt. Mini Kalathil all at Rs.1.25 lakhs per cent fixed by the Deputy Tahsildar W.P.(C).No.14401/2009 18 (LA) as the fair market value for the area.
The Secretary, Kozhikode Corporation in his letter read as 2nd paper above has informed that in the Government order read as 1st paper above, survey T.S. No.712/1 was not included and has requested to modify the Government order by including the Survey T.S. No.712/1 in the order.
Government have examined the matter in detail and are pleased to order that the above said 5.572 cents of land uncludes the land in Survey No.712/I also.
The Government Order read above stands modified to the above extent.
By Order of the Governor D.RADHAKRISHNAN JOINT SECRETARY"
27. It is worthwhile to consider a few decisions on the scope of judicial review, which are extracted hereunder.
(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 W.P.(C).No.14401/2009 19 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. v. 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 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. v. 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 W.P.(C).No.14401/2009 20 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.
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 W.P.(C).No.14401/2009 21 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:
"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 , (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 W.P.(C).No.14401/2009 22 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.
(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.W.P.(C).No.14401/2009 23
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 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, in 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."W.P.(C).No.14401/2009 24
(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 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 W.P.(C).No.14401/2009 25 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 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. W.P.(C).No.14401/2009 26
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 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 and W.P.(C).No.14401/2009 27 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 doctrine of proportionality.W.P.(C).No.14401/2009 28
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 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 W.P.(C).No.14401/2009 29 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 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 W.P.(C).No.14401/2009 30 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."
(x) In Union of India v. Rajasthan High Court reported in (2017) 2 SCC 599, the Hon'ble Supreme Court, in 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 W.P.(C).No.14401/2009 31 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."
(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 W.P.(C).No.14401/2009 32 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 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."W.P.(C).No.14401/2009 33
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 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. W.P.(C).No.14401/2009 34 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 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 W.P.(C).No.14401/2009 35 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)
(xii) In Haryana Financial Corporation and another v. M/s Jagdamba Oil Mills and another, (2002) 3 SCC 496 (vide paragraph 10), the Hon'ble Supreme Court observed thus:
"If the High Court cannot sit as an appellate authority over the decisions and orders of quasi-judicial authorities, it follows equally that it cannot do so in the case of administrative authorities. In the matter of administrative action, it is well known that more than one choice is available to the administrative authorities. They have a certain amount of discretion available to them. They have a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred, (per Lord Diplock in Secretary of State for Education and Science v. Metropolitan Borough Counsel of Tameside, 1977 AC 1014). The Court cannot substitute its judgment for the judgment of administrative W.P.(C).No.14401/2009 36 authorities in such cases. Only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, the Court can intervene. To quote the classic passage from the judgment of Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, 1947 (2) ALL ER 680:
"It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with the discretion must, so to speak, direct himself properly in law. He must call his own attention to the 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, and often is 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.
(xiii)) In Tata Cellular v. Union of India, reported in AIR 1996 SC 11, the Hon'ble Supreme Court observed thus: "(1) The modern trend points to judicial restraint in administrative action.
(2) The Court does not sit as a Court of appeal over administrative decisions but merely reviews the manner in which the decision was made.W.P.(C).No.14401/2009 37
(3) The Court does not have the expertise to correct an administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise, which itself may be fallible. In the same decision the Supreme Court observed that judicial review is concerned with reviewing not the merits of the decision but the decision making process (the Wednesbury principle). See also Pramod Kumar Misra v. Indian Oil Corporation , 2002 (4) AWC 3221, State of Kerala v. Joseph Antony, 1994 (1) SCC 301, etc."
As Lord Denning observed:
"This power to overturn executive decisions must be exercised very carefully, because you have got to remember that the executive and the local authorities have their very own responsibilities and they have the right to make decisions. The Courts should be very wary about interfering and only interfere in extreme cases, that is, cases where the Court is sure they have gone wrong in law or they have been utterly unreasonable. Otherwise you would get a conflict between the Courts and the Government and the authorities, which would be most undesirable. The Courts must act very warily in this matter. (See 'Judging the World' by Garry Sturgess and Philip Chubb).
In our opinion judges must maintain judicial self-restraint while exercising the powers of judicial review of administrative or legislative decisions."W.P.(C).No.14401/2009 38
28. Reverting to the facts and circumstances of this case, it could be seen that lands in private properties comprised in Town Survey Nos.706/1 and 700/3 were acquired. Award has been passed in the year 1983. Calicut Development Authority (CDA) has developed a 12 metres road viz., C3C3 road, as envisaged in the DTP Scheme for Ward 5, Section 8 of the Calicut Corporation, for access to the housing colony developed by CDA. General public is using the said road. There was no proposal to link the housing colony road to any other road. The road is already connected to bye-pass through JNHC.
29. After the formation of the road (about 23 years back), a very small strip of land in the shape of a long triangle remained as road puramboke. This has happened due to the acquisition of additional land to avoid a small piece of land of the original owner be separated out to the other side of the road. Respondents 3 to 5 have approached CDA, on 16.6.2002 to allot vacant land to them, on outright sale, stating that dumping of work and repair of heavy vehicles in the night causes much nuisance to the peaceful living in that area. From the counter affidavit, it could be seen that all the applicants are sharing common boundary with the remnant piece of land.
30. CDA has considered the request of the applicants and as per W.P.(C).No.14401/2009 39 resolution No.(11)C on 26.04.2003, authorised its Chairman to discuss the matter with the applicants and to allot the land after negotiation. On 19.07.2003, the Chairman of CDA discussed the matter with the applicants in the presence of Town Planner, EE and AO. The applicants offered Rs.35,000/- per Cent, which according to them, was less than the amount incurred by CDA for acquiring and developing that land. Therefore, in the Executive Committee meeting held on 4.11.2003 vide resolution No.8, it was resolved to examine the possibility of giving the land on annual lease to the applicants, in order to avoid inconvenience due to the misuse of the land by anti-social elements. Considering the repeated representations from the applicants, the Executive Committee of CDA vide resolution No.13 dated 28.5.2005, resolved to form a Sub Committee, including the Chairman of CDA, Mayor of Kozhikode Corporation, Superintending Engineer, PWD and Secretary of CDA, to submit a report regarding the matters relating to allotment of the land on lease.
31. The Sub Committee visited the site on 3.2.2006 and reported that access to the plot of three applicants, viz., Smt.Vilasini Stella Sukumaran, Smt.P.M.Soudamini and Smt. Mini Kalathil, respondent Nos.3 to 5, is through the remnant piece of land and sale of this plot to any other party would cause inconvenience to the petitioner. Hence, the Sub W.P.(C).No.14401/2009 40 Committee has recommended to sell the remnant piece of land to the respondents after fixing cost of land based on the expenditure of the CDA to acquire and develop the area.
32. Considering the proposal of the Sub Committee, Executive Committee of CDA vide Resolution No.18(5) dated 4.2.2006 resolved to allot the part of land in front of the plot of the applicants at the rate of Rs.1.25 lakhs per Cent.
33. When action has been taken to register the land to the applicants, one Sri.C.Mohan, a former owner of the land, filed W.P(C) No.15587 of 2006 before this Court seeking for the following reliefs:
(i) "issue a writ of mandamus or any other appropriate writ, direction or order, directing the respondents to consider Exhibit.P2 representation and accept the petitioner's offer to buy the remaining portion of the acquired property comprised in T.S.No.5-16-706/1, Kiliyanad School Road, Kozhikode.
(ii) To restrain the respondents from disposing of the remaining portion of the petitioner's acquired property comprised in T.S.No.5-16-706/1 Kiliyanad School Road, Kozhikode without considering Exhibit.P2 representation and without resorting to the due process."
34. It could be seen from the counter affidavit of the 2 nd respondent that by way of an interim order in W.P.(C) No.15587 of 2006 dated 25.09.2006 [Ext.R2(b)], a learned single Judge of this Court has permitted sale of land to eligible persons and that the interim order has merged with the disposal of the said writ petition, as infructuous. In the case on hand, W.P.(C).No.14401/2009 41 even the erstwhile land owner's plea not to dispose of the remaining land, has been dismissed.
35. Before registering the deed, CDA has been wound up to form Development Wing of Kozhikode Corporation vide Government order G.O(MS) No.98/07/LSGD dated 30.03.2007 and Government of Kerala vide letter No.48271/G3/06/LSGD, directed approval from Kozhikode Corporation Council for sale of the land. As per resolution No.3 dated 6.7.2008, Kozhikode Corporation Council approved the proposal for sale of 5.572 Cents of land in Ward 5, Block 16, T.S. No.712/1, 700/3, 706/1 at the rate of 1.25 lakhs per Cent to respondent Nos.3 to 5. Thereafter, Government, by G.O (Rt) No.4/08/LSGD dated 01.01.2008, accorded permission for sale of the land. Later, G.O(Rt) No.810/08/LSGD dated 18.03.2008 has been issued to rectify an omission of Survey No.712/1 on 23.01.2008. The plots were registered in the name of allotees in the Government order dated 01.01.2008.
36. G.O.(Rt) No.4/08/LSGD dated 01.01.2008 (Exhibit-P3) is the sanctioning order for sale of land comprising 5.572 Cents in T.S. Nos.700/3, 706/01 to the petitioners. G.O.(Rt) No.810/08/LSGD dated 18.03.2008 has been issued to correct the Government order dated 01.01.2008. The land comprised in T.S. No.712/1 is a part and parcel of W.P.(C).No.14401/2009 42 land acquired by the Special Tahsildar for the formation of a 12 metres road as per the specification sanctioned 23 years back.
37. Materials on record further disclose that the learned Advocate Commissioner has reported the actual physical features. Further widening is not required and that piece of the triangular land is being used for ingress and egress to the properties of respondents 3 to 5.
38. Decision in Puthalath Balakrishnan's case (cited supra) is a case relating to conflict of rights of the State and a private individual, in the matter of acquisition of property, right to reserve the land for development purpose and the right of an individual. We are not faced with such a situation. Right of the Government to reserve land cannot be questioned. In the given case, we are concerned with the right of the Corporation to sell the remnant piece of land vis-a-vis the inconvenience of the respondents 3 to 5 to have access to the road. According to the respondents, the said small piece of triangular road, cannot be used for any other public purpose. Besides, it is not earmarked for any park or public utility. Considering the actual physical feature of the subject land, respondents 3 to 5 have requested the authorities to sell the land to them. Materials on record further disclose that the authorities have followed due procedure for parting with the land. Appropriate value has been fixed. W.P.(C).No.14401/2009 43
39. Giving due consideration to the materials on record and analysing the same on the principles of law laid down on judicial review, we do not find any fault with the sale effected to respondents 3 to 5. On the aspect as to whether judicial review is extended to strike down the decision or whether the Court under Article 226 of the Constitution of India has to restrict itself to the decision making process, sans arbitrariness or illegality, it is also desirable to consider the following decisions:
"(i) In Chief Constable of the North Wales Police v.
Evans (1982) 3 All ER 141, 154, Lord Brightman said:
"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. In the same case Lord Hailsham commented on the purpose of the remedy by way of judicial review under RSC, Ord. 53 in the following terms:
This remedy, vastly increased in extent, and rendered, over a long period in recent years, of infinitely more convenient access than that provided by the old prerogative writs and actions for a declaration, is intended to protect the individual against the abuse of power by a wide range of authorities, judicial, quasi-judicial, and, as would originally have been thought when I first practiced at the Bar, administrative. It is not W.P.(C).No.14401/2009 44 intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the courts as the bodies making the decisions. It is intended to see that the relevant authorities use their powers in a proper manner (p. 1160). In R. v. Panel on Takeovers and Mergers, exp Datafin plc (1987) 1 All ER 564, Sir John Donaldson, M.R. commented:
An application for judicial review is not an appeal. In Lonrho plc v. Secretary of State for Trade and Industry (1989) 2 All ER 609, Lord Keith said: Judicial review is a protection and not a weapon. It is thus different from an appeal. When hearing an appeal the Court is concerned with the merits of the decision under appeal. In Amin v. Entry Clearance Officer, (1983) 2 All ER 864, Re, Lord Fraser observed that:
Judicial review is concerned not with the merits of a decision but with the manner in which the decision was made. Judicial review is entirely different from an ordinary appeal. It is made effective by the court quashing the administrative decision without substituting its own decision, and is to be contrasted with an appeal where the appellate tribunal substitutes its own decision on the merits for that of the administrative officer."
(ii) In R. v. Panel on Take-overs and Mergers, exp in Guinness plc (1989) 1 All ER 509, Lord Donaldson, M.R. referred to the judicial review jurisdiction as being supervisory or "longstop" jurisdiction. Unless that restriction on the power of the court is observed, the court will, under the guise of preventing the abuse of power, be itself guilty of usurping power.
The duty of the court is to confine itself to the question of legality. Its concern should be:
W.P.(C).No.14401/2009 45
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.
Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. 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 (1991) 1 ACR 696, 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".
(iii) A Full Bench of this Court in Writ Appeal No. 581/2017 (Nitin Pathak v. State of M.P.) examined the question as to whether, in exercise of power of judicial review the Court can refer the matter to a Court chosen expert or whether the Court itself can act as W.P.(C).No.14401/2009 46 Court of appeal and make a different view than what has been finalised as the model answer key by the Examining Body. The Bench held as under:
"32. In respect of the second question, this Court does not and should not act as Court of Appeal in the matter of opinion of experts in academic matters as the power of judicial review is concerned, not with the decision, but with the decision-making process. The Court should not under the guise of preventing the abuse of power be itself guilty of usurping power."
(iv) Even if the High Court finds that the decision of the State Government is suffering from some illegality, the jurisdiction of the High Court in a writ petition under Article 226 of the Constitution of India is to remit the matter to the Authority for reconsideration rather than to substitute the decision of the competent Authority with that of its own. The Hon'ble Supreme Court in a judgment reported as (1994) 4 SCC 448 (State of Haryana v. Naresh Kumar Bali) was examining a question: as to whether there could be a direction to appoint a candidate, who sought appointment on compassionate ground. The Hon'ble Supreme Court held as under:
"16. With regard to appointment on compassionate ground we have set out the law in Life Insurance Corpn. of India v. Asha Ramchhandra Ambekar (1994) 2 SCC 718. The same principle will clearly apply here. What the High Court failed to note is the post of an Inspector is a promotional post. The issuing a direction to appoint the respondent within three months when direct recruitment is not available, is unsupportable. The High Court could have merely directed consideration of the claim of the respondent in accordance with the rules. It cannot direct W.P.(C).No.14401/2009 47 appointment. Such a direction does not fall within the scope of mandamus. Judicial review, it has been repeatedly emphasised, is directed against the decision-making process and not against the decision itself; and it is no part of the court's duty to exercise the power of the authorities itself. There is widespread misconception on the scope of interference in judicial review. The exercise of the extraordinary jurisdiction constitutionally conferred on the Apex Court under Article 142(1) of the Constitution can be of no guidance on the scope of Article 226."
40. Giving due consideration to the facts of this case and the decisions extracted above, we are of the view that there is no error in the decision making process, much less the decision.
41. Though in Bhaskaran Pillai's case (cited supra), the Hon'ble Apex Court observed that if the land is acquired for a public purpose, after the public purpose was achieved, rest of the land could be used for any other public purpose. In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilised for public purpose. In the case on hand, if such a course is adopted, it would cause inconvenience and hardship to respondents 3 to 5, who are using remnant triangular strip of land, as an access to their properties. Even in Bhaskaran Pillai's case (cited supra), there is no absolute embargo in selling the remaining land, W.P.(C).No.14401/2009 48 after fulfilling the public purpose. The Hon'ble Apex Court only held that, instead of disposal of the property to the erstwhile land owner, it can be sold by way of public auction to fetch more revenue. In the light of Bhaskaran Pillai's case (cited supra), and on the facts and circumstances of this case, contention of the public interest litigant that Corporation has no authority to sell the remaining land to respondents 3 to 5, is not tenable and hence, rejected.
42. Cost of the land has been fixed by the District Collector and the amount has been remitted in 2006 itself. Writ petition has been filed in the year 2009, seeking to quash Exhibits-P2 to P4. Going through the materials on record, we are of the view that there is no error in the decision making process. Balance of convenience and hardship have been taken note of by the State. There are no merits in this writ petition warranting interference, and the same deserves to be dismissed.
Writ petition is accordingly, dismissed. No costs.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
A.M.SHAFFIQUE JUDGE Krj W.P.(C).No.14401/2009 49 APPENDIX PETITIONER'S EXHIBITS:-
P1:- PHOTOSTAT COPY OF THE PLAN OF THE PROPERTIES ACQUIRED.
P2:- PHOTOSTAT COPY OF THE RESOLUTION DATED 6-7-2007 WITH TRANSLATION.
P3:- PHOTOSTAT COPY OF THE ORDER DATED 1-1-08.
RESPONDENTS' EXHIBITS:-
R2(A): COPY OF THE SKETCH OF THE PROPERTY PREPARED BY THE ASST. EXECUTIVE ENGINEER, KOZHIKODE CORPN.
R2(B): COPY OF THE INTERIM ORDER DATED 25.9.2006 IN W.P.(C) NO.15587/06.
DOCUMENTS FILED BY ADVOCATE COMMISSIONER:-
C-1:- NOTICE DATED 27.7.2009.
C-2:- POSTAL RECEIPT DATED 27.7.2009.
C-3:- NOTICE DATED 4.8.2009.
C-4:- WORK MEMO SUBMITTED BY THE PETITIONER.
C-5:- WORK MEMO SUBMITTED BY THE 2ND RESPONDENT.
C-6:- WORK MEMO SUBMITTED BY THE RESPONDENTS 3 TO 5.
//TRUE COPY// P.A. TO C.J.