Himachal Pradesh High Court
M/S.Gh Hydro Power Ventures Pvt.Ltd vs State Of H.P. & Others on 5 October, 2016
Author: Sandeep Sharma
Bench: Mansoor Ahmad Mir, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
CWP No.2171 of 2015
.
Judgment Reserved on: 21.09.2016
Date of decision: 5.10.2016
M/s.GH Hydro Power Ventures Pvt.Ltd. ...Petitioner
Versus
State of H.P. & Others ...Respondents
of
Coram
The Hon'ble Mr.Justice Mansoor Ahmad Mir, Chief Justice.
The Hon'ble Mr.Justice Sandeep Sharma, Judge.
rt
Whether approved for reporting ?1
For the Petitioner:
Yes.
Mr.Ajay Vaidya, Advocate.
For Respondent No.1: Mr.Shrawan Dogra, Advocate
General with Mr.Anup Rattan
and Mr.Romesh Verma,
Additional Advocate Generals
with Mr.J.K. Verma, Deputy
Advocate General.
For Respondents No.2 & 3: Mr.Vijay Arora, Advocate.
Sandeep Sharma,J.
By way of present writ petition under Article 226/227 of the Constitution of India, the petitioner prayed for following main relief(s):-
"(a) Issue writ in the nature of certiorari quashing and set aside the impugned orders dated 24.02.2015 (Ann P-14) as issued by respondent No.1;1
Whether the reporters of Local Papers may be allowed to see the judgement? Yes.
::: Downloaded on - 15/04/2017 21:21:51 :::HCHP 2(b) Issue a writ of mandamus or any other suitable writ, order or direction, directing the respondents not to allot the Self Identified Hydel Project Joiner Top Hydel Project 05.00 MW to any .
other person including any company, firm, AOP, Society etc.
(c) Issue a writ of mandamus or any other suitable writ, order or direction, directing the respondents to allot the Self Identified Hydel Project Joiner Top Hydel Project 05.00 MW to the of petitioner in time bound manner."
2. In brief, facts, as emerged from the record, are that rt respondent No.2, pursuant to Hydro Power Policy of the State of Himachal Pradesh, invited applications for the allotment of Self Identified "Joiner Top" i.e. Hydel Project 05.00 MW situated at District Chamba, Himachal Pradesh in the year 2004. Petitioner herein, pursuant to aforesaid advertisement, made an application in the name and style of M/s.Kangra Kullu Hydro Power Ventures (P) Ltd. (for short `KKHPV') for allotment of Self Identified Joiner Top of 1.5 MW small Hydro Power Project. Though `KKHPV' had applied for Kesta Neri (1.50 MW) SHP, under self identified category on 31.12.2004, but, lateron petitioner requested that the aforesaid application be considered against Joiner Top (1.50 MW) SHP instead of Kesta Neri SHP. Further perusal of pleadings available on record suggests that after receipt of aforesaid application, filed on behalf of petitioner for allotment of self identified project, ::: Downloaded on - 15/04/2017 21:21:51 :::HCHP 3 during scrutiny of documents at Government level, it transpired that registration of the Company was not in place at that relevant time. Accordingly, respondent No.2 sent a .
communication dated 29.3.2006 (Annexure R-2) to `KKHPV' (Original Applicant) with reference to its application dated 31.12.2004 for allotment of Joiner Top (1.50 MW) SHP in District Chamba, requesting therein to send certified copy of from the concerned Registrar of Companies (for short `ROC') regarding latest status of Directors/Promoters and stake-
rt holders of the applicant-Company.
applicant-`KKHPV' failed to
But, it appears that
supply documents, as were
required vide communication dated 29.3.2006, therefore, the Council of Ministers in its meeting held on 5.6.2006 rejected the application of the petitioner, which was made in the name of `KKHPV' and Project in question was approved for advertisement in future. Respondent No.3 vide communication dated 3.10.2006, Annexure R-1, informed the applicant-
`KKHPV' with regard to rejection of its application dated 31.12.2004 for setting up of Joiner Top (1.50 MW) SHP in District Chamba, H.P. Pleadings available on record, nowhere suggests that the aforesaid decision, taken by the Council of Ministers in its meeting held on 5.6.2006, was ever challenged in appropriate proceedings before appropriate Court of law and as such, the same attained finality. However, perusal of ::: Downloaded on - 15/04/2017 21:21:51 :::HCHP 4 pleadings and documents placed on record by the petitioner, especially Annexure P-3, suggest that present petitioner i.e. M/s.GH Hydro Power Ventures Pvt.Ltd., Ranital, District .
Kangra, (for short `GHHPVPL') had submitted initial application dated 31.12.2004 in the name and style of `KKHPVPL', which was admittedly not registered with the `ROC' at that relevant time.
Thereafter, `ROC' vide Registration No.U40101HP2006PTC030557 of dated 04.09.2006 approved the name of the Company as `GHHPVPL'. Perusal of Annexure P-3 leaves no doubt that rt before 4.9.2006 neither Company in the name and style of `GHHPVPL' nor in the name of `KKHPVPL' was in existence and as such respondents rejected the said application dated 31.12.2004.
3. Perusal of Annexures P-4 & P-5 further suggest that even after rejection of its application dated 31.12.2004 by the respondents, the petitioner kept on pursuing the matter with the respondents with regard to allotment of Self Identified Project, as detailed hereinabove, in terms of application dated 31.12.2004, despite there being specific rejection of its application by the Council of Ministers on 5.6.2006.
4. Thereafter, it appears that present petitioner made a representation to Hon'ble the Chief Minister of the State with regard to allotment of Joiner Top (1.50 MW) SHP, which was duly replied by respondent No.2 vide communication dated ::: Downloaded on - 15/04/2017 21:21:51 :::HCHP 5 27.9.2008, wherein petitioner was informed that capacity of the Project seems to be low and other Project namely; Upper Joiner had been contemplated for capacity of 12 MW, which .
will be utilizing the discharge available for the project.
Respondent specifically informed the petitioner-Company that capacity of Joiner Top may be more than 5MW which needs to be resurveyed/investigated for optimum utilization of potential of available.
5. Petitioner vide letter dated 17th October, 2008 rt (Annexure P-7) again requested respondent No.3 to allot Project i.e. Joiner Top SHP (EL + 1960 m to EL + 2400 m) of 5 MW capacity. However, the aforesaid request of the petitioner was rejected by respondent No.3 vide communication dated 23.10.2010 (Annexure P-8), wherein he specifically informed the petitioner that initial application dated 31.12.2004, filed in the name and style of `KKHPVPL' in Kesta Neri (1.5 MW) SHP, under self identified category by the petitioner, was considered by the Council of Ministers on 5.6.2006 and no action was taken on the request in view of the fact that rejection order was already made.
6. Respondent No.3 vide aforesaid communication specifically informed the present petitioner that application submitted by it was forwarded to the Government of Himachal Pradesh by HIMURJA vide communication dated 3.8.2009, but ::: Downloaded on - 15/04/2017 21:21:51 :::HCHP 6 Government directed that the capacity of the proposed Project may be got confirmed from the Himachal Pradesh State Electricity Board Limited (for short `HPSEBL'). Accordingly, .
Chief Engineer (P&M) was requested by HIMURJA on 4.9.2009 for confirmation of capacity and comments. In nutshell, vide aforesaid communication respondent No.3 categorically informed the petitioner that Project is no more in self of identified domain and as such representation, if any, made by the petitioner is redundant.
7. the rt But, despite aforesaid rejection order passed by respondent, present petitioner kept on making correspondence with various authorities as emerged from Annexure P-9. Perusal of Annexure P-11 annexed with the petition suggests that pursuant to request made by respondents No.2 and 3, as was directed by the State of Himachal Pradesh, HPSEBL informed that "The optimal installed capacity for the Project is 4.86 MW). The intake will be located at E1.2395m. The power house will be located on elevation of 1990m. The Plant load Factor for high season for the project is anticipated to be 0.52, while the Plant load Factor for lean season is expected to be 0.16."
8. Careful perusal of aforesaid communication dated 29.3.2012 sent by HPSEBL clearly suggests that capacity with regard to Joiner Top SHP in District Chamba was of 4.86 MW, ::: Downloaded on - 15/04/2017 21:21:51 :::HCHP 7 whereas petitioner while making application dated 31.12.2004 had shown its capacity as 1.5 MW. Record further reveals that petitioner herein had filed CWP No.671 of 2015, which came to .
be decided by learned Single Bench of this Court on 16.1.2015, wherein directions were issued to Principal Secretary, (MMP & Power) to the Government of Himachal Pradesh to decide the representation of the petitioner by passing a speaking order of within a period of three weeks from the date of the order.
Perusal of order dated 16.1.2015 (Annexure P-13) clearly rt suggests that the same was passed by this Court at the behest of petitioner, wherein Court was informed that petitioner had already made representation for redressal of its grievance to the Principal Secretary (MMP & Powers) to the Government of Himachal Pradesh on 2.1.2015 (Annexure P-12). However, fact remains that pursuant to aforesaid directions given by the learned Single Bench of this Court in CWP No.671/2015, respondents passed detailed speaking order dated 24.2.2015, whereby representation of the petitioner was rejected being devoid of any merit. Principal Secretary(NES) to the Government of Himachal Pradesh, while rejecting representation filed by the petitioner, pursuant to directions passed by learned Single Bench of this Court, specifically held that original application stood rejected in the year 2006 and subsequent guidelines issued on 12.11.2008 are not applicable ::: Downloaded on - 15/04/2017 21:21:51 :::HCHP 8 in the case of petitioner, though the petitioner was afforded an opportunity of making representation as per guidelines of 12.11.2008. Careful perusal of order dated 24.2.2015 .
(Annexure P-14) suggests that after rejection of petitioner's application already made on 31.12.2004, Council of Ministers had taken conscious decision on 5.6.2006 to re-advertise the Project and in this regard petitioner was duly informed on of 3.10.2006. It also emerges from the aforesaid order that Project in question was re-advertised on 5.2.2007 alongwith rt other Projects qua which two applications were received, but admittedly neither `KKHPVPL' nor `GHHPVPL' (petitioner) ever applied for said Project.
9. At this stage, it would be apt to reproduce following paras of order dated 24.2.2015 (Annexure P-14) passed by Principal Secretary (NES) to the Government of Himachal Pradesh:-
"2. Whereas the Hydro Power Policy was under finalization, therefore, the Govt.decided on 08.06.2005 that no action be taken on the applications received for allotment of SHEPs and the security fee/processing fee deposited by the applicants be refunded to them and no application be entertained till the finalization of Hydro Power Policy. Accordingly, the application fee and EMD received with the applications were refunded to all the applicants including M/s.Kangra Kullu Hydro Power Venture Pvt.Ltd. on 02.07.2005 by Himurja.
3. Whereas after issuance of Policy guidelines on 02.01.2006, it was decided by the Govt. that if the applicants had ::: Downloaded on - 15/04/2017 21:21:51 :::HCHP 9 made substantial progress they could apply for allotment of the SHEP to Himurja. In response to this, the representation from M/s.Kangra Kullu Hydro Power Venture Pvt.Ltd. was received .
on 4.2.2006 for allotment of Joiner Top (1.50 MW) SHEP in Distt.Chamba. During scrutiny of the representation, it was observed that documentation with regard to formation of company were not proper.
Due to non registration of the company the representation was rejected and it was decided on 5.6.2006 to re-advertise the project. The applicant was also intimated with the rejection on 3.10.2006. The of project was re-advertised on 5.02.2007 alongwith other projects. Only two applications were received against this project but neither M/s.Kangra Hydro Power Venture Pvt.Ltd. nor M/s GH Hydro rt Power Venture Pvt.Ltd. applied for the said project. Only the projects for where applications were received, were allotted in the year 2008 and for remaining projects, it was decided to re-advertise after proper survey & investigation in respect of two parameters i.e. optimum capacity & clear cut elevation range to avoid any further conflict in view of the decision sanity check was done by Himurja and it was found that two projects namely Joiner (12 MW) and Upper Joiner-II (10MW) are allotted downstream the Joiner Top (1.50 MW) SHEP and availability of water for the proposed project is almost the same as shall be available for these allotted projects. Himurja observed that capacity of the project can remain above 5MW, therefore, they took up the matter with HPSEBL who informed that capacity of the project may be around 7.50 MW.
4. Whereas the applicant again represented on 27.07.2009 pleading that capacity of the Joiner Top SHEP cannot exceed 5MW. The matter was, therefore, again taken up with HPSEBL who informed that capacity of the project will be 4.86 MW with reduced elevation range i.e. 2395m- 1990m. The elevations intimated by HPSEBL were different to elevations ::: Downloaded on - 15/04/2017 21:21:51 :::HCHP 10 mentioned in the application submitted by M/s.Kangra Kullu Hydro Power Venture Pvt.Ltd. which had submitted for the elevation range of 2400m-1960m.
.
5. Whereas the application for allotment of the project was submitted in the name of M/s.Kangra Kullu Hydro Power Venture Pvt.Ltd. and subsequent representation was received in Himurja in the name of M/s.GH Hydro Power Venture (P) Ltd. Documents of the same were not complete. The capacity of the project was also under underassessed."
of
10. Being aggrieved and dis-satisfied with the aforesaid order dated 24.2.2015, petitioner has approached rt this Court seeking therein the reliefs as have been reproduced above.
11. Mr.Ajay Vaidya, learned counsel representing the petitioner, vehemently argued that petitioner had applied for the project strictly in terms of Hydro Power Policy of the State, but respondents had no reason, whatsoever, not to allot the Project in question to petitioner when petitioner offered to install Project with 4.86 MW capacity and in this regard he spent lacs of rupees for preparing the survey reports etc. Mr.Vaidya also argued that admittedly petitioner was single bidder for self identified Hydel Project and no loss would have occurred to the respondent-State, if it was allotted in favour of the petitioner, who was financially competent to undertake the Project in question. Mr.Vaidya also contended that neither it ::: Downloaded on - 15/04/2017 21:21:51 :::HCHP 11 was ever conveyed to the petitioner that his original application dated 31.12.2004, preferred in the name and style of `KKHPVPL', was rejected for want of registration certificate nor .
any opportunity of being heard was ever afforded to him and as such impugned order is not sustainable and same deserves to be quashed and set aside.
12. While concluding his arguments, Mr.Vaidya stated of that perusal of impugned orders itself suggests that same have been passed in slipshod manner without there being any rt application of mind, without following mandatory guidelines issued by the State of Himachal Pradesh in this regard (Annexure P-15) and as such present petition deserves to be allowed by granting relief as has been prayed for.
13. Mr.Shrawan Dogra, learned Advocate General, vehemently argued that present petition deserves to be dismissed solely on the ground of delay and laches, as it stands duly proved on record that application initially filed by the petitioner in the name and style of `KKHPVPL' stood rejected on 5.6.2006, whereas present petition has been filed in the year 2015 i.e. after more than 9 years as no ground muchless sufficient ground has been raised to condone the delay in maintaining the present petition. He also stated that since application filed by the petitioner in the name of `KKHPVPL' which was not registered with `ROC' at the time of ::: Downloaded on - 15/04/2017 21:21:51 :::HCHP 12 consideration of the application, same was rejected by Council of Ministers and decision was taken to re-advertise the Project.
It is also stated that once decision was taken to re-advertise .
the Project on 5.6.2006, petitioner cannot claim any right in view of his original application dated 31.12.2004. He also invited the attention of this Court to the impugned order to demonstrate that pursuant to the rejection of application of the of petitioner by the Council of Ministers, Project in question was re-advertised on 5.2.2007 alongwith other Projects, wherein rt admittedly, petitioner never applied and as such present petition is not maintainable deserves to be dismissed.
14. We have heard learned counsel for the parties and have gone through the record of the case.
15. It clearly emerges from the facts as well as submissions made by the learned counsel representing the parties, as narrated above, that the present petitioner-
company originally made application, dated 31.12.2004, in the name of `KKHPVPL' and applied for 1.5 MW Joiner Top capacity self identified Project at Kesta-Neri, but, since present petitioner, despite repeated reminders, failed to submit certificate of registration of the company, application submitted by it for allotment of the Project in question was rejected by Council of Ministers in its meeting held on 5.6.2006. It is also undisputed before us that pursuant to ::: Downloaded on - 15/04/2017 21:21:51 :::HCHP 13 aforesaid rejection of the application of the petitioner, Project in question was re-advertised on 5.2.2007 alongwith other Projects. Though, application of the petitioner-Company stood .
rejected, but admittedly, no action, whatsoever, was ever taken by it to assail decision dated 5.6.2006, which was duly communicated to it vide communication dated 3.10.2006 (Annexure R-1), in any Court of law and as such same attained of finality qua the petitioner as far as application dated 31.12.2004 is concerned. Though petitioner by way of placing despite rt documents on record made an attempt to demonstrate that there being rejection of its application, matter remained pending with the respondent-department and he was repeatedly given assurances by the respondents that matter is under active consideration, but keeping in view the abovesaid fact this Court is unable to accept aforesaid submissions.
16. Interestingly, present petitioner, instead of laying specific challenge to the decision dated 5.6.2006, wherein its proposal was rejected, filed writ petition before this Court, which came to be registered as CWP No.671 of 2015, wherein also petitioner only prayed for consideration of his representation dated 2.1.2015, pending before the Principal Secretary (MMP & Powers) to the Government of Himachal Pradesh. Learned Single Bench of this Court vide order dated 16.1.2015 disposed of the said writ petition by directing the ::: Downloaded on - 15/04/2017 21:21:51 :::HCHP 14 Principal Secretary (MMP & Powers ) to decide the representation in light of notification dated 12.11.2008 issued by the State of Himachal Pradesh.
.
17. This Court is of the view that passing of order dated 16.1.2015 in CWP No.671 of 2015 may not be of any help to the petitioner as far as delay in maintaining the instant petition is concerned, especially in view of the fact that of application dated 31.12.2004, filed by present petitioner for allotment of the Project in question, was rejected vide decision rt taken on 5.6.2006, which was never assailed before any Court of law.
18. Though this Court is fully convinced that the present petition deserves to be dismissed on the ground of delay itself, but, since this matter remained under active consideration of this Court for a considerable time after filing of present petition w.e.f. 4.4.2015, this Court also examined genuineness and correctness of order impugned in this petition. Impugned order dated 24.2.2015 (Annexure P-14) clearly suggests that original application dated 31.12.2004 filed by the petitioner in the name and style of `KKHPVPL' was rejected by the Council of Ministers on 5.6.2006 for want of registration certificate from the `ROC'. This Court sees no illegality and infirmity in the decision of the Government while rejecting the proposal furnished by the petitioner vide ::: Downloaded on - 15/04/2017 21:21:51 :::HCHP 15 application dated 31.12.2004 when admittedly Company was not registered with the `ROC'. Moreover, perusal of Annexure R-2 placed on record by the respondents clearly suggests that .
ample opportunity was given to the petitioner-Company to make available certificate of registration, if any, but despite reasonable opportunity, petitioner failed to place on record required documents, as a result of which Council of Ministers of decided to reject the application.
19. Apart from above, it also emerged from the rt impugned order as well as detailed reply filed by the respondents that the petitioner, while filing application, suppressed material facts with regard to actual potential of the site of the proposed Project by mentioning that proposed Project has capacity of 1.5 MW, whereas lateron it came to the knowledge that capacity of the Project in question was 4.86 MW, as was divulged by the report submitted by the HPSEBL, hence application was rightly rejected by the competent authorities on account of suppression of material facts.
Moreover, Project in question was re-advertised on 5.2.2007, wherein admittedly, present petitioner `GHHPVPL' never applied for the same and as such it has no right, whatsoever, to claim Project in question on the strength of initial application dated 31.12.2004.
::: Downloaded on - 15/04/2017 21:21:51 :::HCHP 1620. In view of above, this Court sees no illegality and infirmity in the impugned order passed by the Principal Secretary (NES) to Government of Himachal Pradesh, wherein .
he concluded that original application of the petitioner-
Company stands rejected in the year 2006 and subsequent guidelines issued on 12.11.2008 are not applicable.
21. Hon'ble Apex Court, while dealing with such like of matters, has repeatedly held that the Courts have very-very limited powers while examining the issues with regard to policy
22. rt decisions taken by the Government.
In this regard reliance is placed on Tata Cellular vs. Union of India, (1994)6 SCC 651, wherein the Court held:
"70. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favoritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down.::: Downloaded on - 15/04/2017 21:21:51 :::HCHP 17
71. Judicial quest in administrative matters has been to find the right balance between the administrative discretion to decide matters whether contractual or political in nature or issues of social policy; thus they .
are not essentially justifiable and the need to remedy any unfairness. Such an unfairness is set right by judicial review.
77. 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?
of
2. Committed an error of law,
3. committed a breach of the rules of rt 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 AC 696, Lord Diplock refers specifically to one development, namely, the ::: Downloaded on - 15/04/2017 21:21:51 :::HCHP 18 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".
(pp.675 & 677-678)
23. Similarly, the action of the State in the contractual matters is required to be tested on touchstone of Article 14 of of the Constitution of India. But if the action of the State in the contractual matters are meant for public good and in public interest and are expected to be fair and just, no interference, rt whatsoever, of the Courts is called for. If the decision of the State is informed by the reason and same is in public interest, Courts have no occasion, whatsoever, to interfere in the same.
24. In this regard reliance is placed on the judgment of this Court in Raj Kumar vs. State of Himachal Pradesh and Others, 2014(2) Him.L.R.(DB) 1217, wherein this Court held as under:
"9. The action of the State even in contractual fields will have to be tested on the following touchstone:
(i) The State action in the contractual field are meant for public good and in public interest and are expected to be fair and just.
(ii) It would be alien to the constitutional scheme to accept the argument of exclusion of Article 14 of the Constitution of India in contractual matters.::: Downloaded on - 15/04/2017 21:21:51 :::HCHP 19
(iii) The fact that a dispute falls in the domain of contractual obligation, would make no difference to a challenge raised under Article 14 of the Constitution of India on the ground that the impugned .
act is arbitrary, unfair and
unreasonable.
(iv) Every State action must be informed of
reason and it follows that an act
uninformed by reason is arbitrary.
(v) Where no plausible reason or principle is indicated (or is discernible), and where the impugned action ex facie appears to of be arbitrary, the onus shifts on the State to justify its action as fair and reasonable.
(vi) rt Every holder of public office is accountable to the people in whom the sovereignty vests. All powers vested in a public office, even in the field of contract, are meant to be exercised for public good and for promoting public interest.
(vii) Article 14 of the Constitution of India applies also to matters of governmental policy even in contractual matters, and if the policy or any action of the Government fails to satisfy the test of reasonableness, the same would be unconstitutional.
(See: Shrilekha Vidyarthi vs. State of U.P. (1991) 1 SCC 212).
Thus, what is essential is that the State and its instrumentalities and their functionaries while exercising their executive power in matters of trade or business etc. including making of contracts, should bear in mind the public interest, public purpose and public good. This is so, because every holder of public office by virtue of which he acts on behalf of the State, or its instrumentalities, is ultimately accountable to the people in whom sovereignty vests and as such, all powers vested in the State are meant to be exercised for public good and in public interest. Therefore, the question of unfettered discretion ::: Downloaded on - 15/04/2017 21:21:51 :::HCHP 20 in an executive authority just does not arise. The fetters on discretion are clear, transparent and objective criteria or procedure which promotes public interest, public purpose and public good. A public authority is ordained, .
therefore to act, reasonably and in good faith and upon lawful and relevant grounds of public interest. (Refer: Reliance Natural Resources Ltd. vs. Reliance Industries Ltd. (2010) 7 SCC 1). Bearing in mind the guiding principles laid down in the Constitution of India alongwith law laid down by the Hon'ble Supreme Court from time to time, we proceed to determine the writ petition."
(pp.1219-1220) of
25. In this regard reliance is also placed on the judgments of the Hon'ble Supreme Court as well as of this rt Court in S.G.Jaisinghani vs. Union of India and Others, AIR 1967 SC 1427, Satwant Singh Sawhney vs. D.Ramarathnam, Assistant Passport Officer, New Delhi and Others, AIR 1967 SC 1836, Namit Gupta vs. State of H.P. and Others, AIR 2014 HP 49, Pritam Singh vs. State of Himachal Pradesh, (2013)1 Him.L.R. 130 and Saroj Garg vs. State of H.P. & Ors., AIR 2011 HP 94.
26. Apart from above, it is the domain of the Department to prescribe conditions, factors and guidelines while inviting applications for Self Identified Hydel Power Project and petitioner has no right, whatsoever, to challenge the terms and conditions contained in the notice inviting applications, save and ::: Downloaded on - 15/04/2017 21:21:51 :::HCHP 21 except, if the same are shown to be against the basic principles of law.
.
27. In this regard reliance is placed upon Maharashtra State Board of Secondary and Higher Secondary Education and Another vs. Paritosh Bhupeshkumar Sheth and Others and Alpana of V.Mehta vs. Maharashtra State Board of Secondary Education and Another, (1984)4 SCC 27, wherein the Hon'ble Supreme Court held:
rt "16. In our opinion, the aforesaid approach made by the High Court is wholly incorrect and fallacious. The Court cannot sit in judgment over the wisdom of the policy evolved by the Legislature and the subordinate regulation-making body. It may be a wise policy which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that, in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act. The Legislature and its delegate are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act and there is no scope for interference by the Court unless the particular provision impugned before it can be said to suffer from any legal infirmity, in the sense of its being wholly beyond the scope of the regulation-making power or its being inconsistent with any of the provisions of the parent enactment or in violation of any of the limitations imposed by the Constitution. None of these vitiating factors are shown to exist in the present case and ::: Downloaded on - 15/04/2017 21:21:51 :::HCHP 22 hence there was no scope at all for the High Court to invalidate the provision contained in clause (3) of Regulation 104 as ultra vires on the grounds of its being in excess of the regulation-making power conferred on the .
Board. Equally untenable, in our opinion, is the next and last ground by the High Court for striking down clause (3) of Regulation 104 as unreasonable, namely, that it is in the nature of a bye-law and is ultra vires on the ground of its being an unreasonable provision. It is clear from the scheme of the Act and more particularly, Sections 18, 19 and 34 that the Legislature has laid down in broad terms its policy to provide for the of establishment of a State Board and Divisional Boards to regulate matters pertaining to secondary and higher secondary education in the State and it has authorised the State Government in the first rt instance and subsequently the Board to enunciate the details for carrying into effect the purposes of the Act by framing regulations. It is a common legislative practice that the Legislature may choose to lay down only the general policy and leave to its delegate to make detailed provisions for carrying into effect the said policy and effectuate the purposes of the Statute by framing rules/regulations which are in the nature of subordinate legislation. Section 3(39) of the Bombay General Clauses Act, 1904, which defines the expression 'rule' states: Rule shall mean a rule made in exercise of the power under any enactment and shall include any regulation made under a rule or under any enactment." It is important to notice that a distinct power of making bye-laws has been conferred by the Act on the State Board under Section 38. The Legislature has thus maintained in the Statute in question a clear distinction between 'bye-laws' and 'regulations'. The bye- laws to be framed under Section 38 are to relate only to procedural matters concerning the holding of meetings of State Board, Divisional Boards and the Committee, the quorum required, etc. More important matters affecting the rights of parties and laying down the manner in which the provisions of the Act are to be carried into effect have been reserved to be provided for ::: Downloaded on - 15/04/2017 21:21:51 :::HCHP 23 by regulations made under Section 36. The Legislature, while enacting Sections 36 and 38, must be assumed to have been fully aware of the niceties of the legal position governing the distinction between .
rules/regulations properly so called and bye-
laws. When the statute contains a clear indication that the distinct regulation- making power conferred under Section 36 was not intended as a power merely to frame bye-laws, it is not open to the Court to ignore the same and treat the regulations made under Section 36 as mere bye-laws in order to bring them within the scope of justiciability by applying the test of of reasonableness.
21. The legal position is now well-
established that even a bye-law cannot be struck down by the Court on the ground of rt unreasonableness merely because the Court thinks that it goes further than "is necessary" or that it does not incorporate certain provisions which, in the opinion of the court, would have been fair and wholesome. The Court cannot say that a bye- law is unreasonable merely because the judges do not approve of it. Unless it can be said that a bye law is manifestly unjust, capricious, inequitable, or partial in its operation, it cannot be invalidated by the Court on the ground of unreasonableness. The responsible representative body entrusted with the power to make by laws must ordinarily be presumed to know what is necessary, reasonable, just and fair. In this connection we may usefully extract the following off-quoted observations of Lord Russell of Killowen in Kruse v. Johnson, (1898) 2 QB 91, 98, 99 (quoted in Trustees of the Port of Madras v. Adminchand Pyarelal, (1976)! SCR 721, 733) (SCC p.178, para 23):
(1) "When the Court is called upon to consider the byelaws of public representative bodies clothed with the ample authority which I have described, accompanied by the checks and safeguards which I have mentioned, I think the consideration of such bye-laws ought to be approached from a different standpoint. They ought to be supported if possible. They ought ::: Downloaded on - 15/04/2017 21:21:51 :::HCHP 24 to be, as has been said, 'benevolently interpreted' and credit ought to be given to those who have to administer them that they will be reasonably administered."
.
"The learned Chief Justice said further that there may be cases in which it would be the duty of the court to condemn by-laws made under such authority as these were made (by a county council) as invalid because unreasonable. But unreasonable in what sense? If for instance, they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or of gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the court might well say, 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra rt vires.' But it is in this and this sense only, as I conceive, that the question of reasonableness or unreasonableness can properly be regarded. A bye-law is not unreasonable merely because particular judges may think that it goes further than is prudent or necessary or convenient or because it is not accompanied by an exception which some judges may think ought to be there'.
" We may also refer with advantage to the well-known decision of the Privy Council in Slattery v. Naylor, (1988) 13 AC 446, where it has been laid down that when considering whether a bye- law is reasonable or not, the Court would need a strong case to be made against it and would decline to determine whether it would have been wiser or more prudent to make the bye- law less absolute or will it hold the bye- law to be unreasonable because considerations which the court would itself have regarded in framing such a bye-law have been over looked or reflected by its framers. The principles laid down as aforesaid in Kruse v. Johnson, (1898) 2 QB 91, 98, 99 and Stattery v. Naylor, (1988) 13 AC 446 have been cited with approval and applied by this Court in Trustees of the Port of Madras v. Aminchand Pyarelal & Ors.,(1976) 1 SCR 721, 733."::: Downloaded on - 15/04/2017 21:21:51 :::HCHP 25
28. In Parisons Agrotech Private Limited and Another vs. Union of India and Others, (2015)9 SCC .
657, the Hon'ble Supreme Court held:
"14. No doubt, the writ court has adequate power of judicial review in respect of such decisions. However, once it is found that there is sufficient material for taking a particular policy decision, bringing it within the four corners of Article 14 of the Constitution, power of judicial review would not extend to determine the correctness of of such a policy decision or to indulge into the exercise of finding out whether there could be more appropriate or better alternatives. Once we find that parameters of Article 14 are satisfied; there was due application of rt mind in arriving at the decision which is backed by cogent material; the decision is not arbitrary or irrational and; it is taken in public interest, the Court has to respect such a decision of the Executive as the policy making is the domain of the Executive and the decision in question has passed the test of the judicial review.
15. In Union of India v. Dinesh Engg. Corpn., (2001)8 SCC 491, this Court delineated the aforesaid principle of judicial review in the following manner: (SCC pp.498- 99, para 12) "12. .....There is no doubt that this Court has held in more than one case that where the decision of the authority is in regard to the policy matter, this Court will not ordinarily interfere since these policy matters are taken based on expert knowledge of the persons concerned and courts are normally not equipped to question the correctness of a policy decision. But then this does not mean that the courts have to abdicate their right to scrutinize whether the policy in question is formulated keeping in mind all the relevant facts and the said policy can be held to be beyond the pale of discrimination or unreasonableness, bearing in mind the material on record. ..... Any decision be it a simple administrative decision or policy decision, ::: Downloaded on - 15/04/2017 21:21:51 :::HCHP 26 if taken without considering the relevant facts, can only be termed as an arbitrary decision. If it is so, then be it a policy decision or otherwise, it will be violative of the mandate of Article 14 of the .
Constitution."
16. The power of the Court under writ jurisdiction has been discussed in Asif Hameed. v. State of J&K, 1989 Supp.(2) SCC 364: 1 SCEC 358 in paras 17 and 19, which read as under: (SCC pp. 373-74) "17. Before adverting to the controversy of directly involved in these appeals we may have a fresh look on the inter se functioning of the three organs of democracy under our Constitution. Although the doctrine of separation of powers has not been recognised under the rt Constitution in its absolute rigidity but the Constitution makers have meticulously defined the functions of various organs of the State. Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and independence of each of its organs. Legislature and executive, the two facets of people's will, they have all the powers including that of finance.
Judiciary has no power over sword or the purse nonetheless it has power to ensure that the aforesaid two main organs of State function within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self-imposed discipline of judicial restraint.
* * *
19. When a State action is challenged, the function of the court is to examine the action in accordance with law and to ::: Downloaded on - 15/04/2017 21:21:51 :::HCHP 27 determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the court must strike down the action. While doing so the court must .
remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these of authorities do not transgress their constitutional limits or statutory powers."
17. The aforesaid doctrine of separation of power and limited scope of judicial review in rt policy matters is reiterated in State of Orissa v. Gopinath Dash, (2005) 13 SCC 495 : (SCC p.497, paras 5-7) "5. While exercising the power of judicial review of administrative action, the Court is not the Appellate Authority and the Constitution does not permit the Court to direct or advise the executive in the matter of policy or to sermonise qua any matter which under the Constitution lies within the sphere of the legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power. (See Asif Hameed v. State of J&K; 1989 Supp (2) SCC 364 and Shri Sitaram Sugar Co. Ltd. v. Union of India; (1990) 3 SCC 223). The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the Court, it cannot interfere.
6. The correctness of the reasons which prompted the Government in decision- making taking one course of action instead of another is not a matter of concern in judicial review and the Court ::: Downloaded on - 15/04/2017 21:21:51 :::HCHP 28 is not the appropriate forum for such investigation.
7. The policy decision must be left to the Government as it alone can adopt which .
policy should be adopted after considering all the points from different angles. In the matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown the 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 of decision of the Government the Court cannot interfere even if a second view is possible from that of the Government."
29. The Hon'ble Apex Court in Census rt Commissioner and Others vs. R.Krishnamurthy, (2015)2 SCC 796 held as under:
"23. The centripodal question that emanates for consideration is whether the High Court could have issued such a mandamus commanding the appellant to carry out a census in a particular manner.
24. The High Court has tried to inject the concept of social justice to fructify its direction. It is evincible that the said direction has been issued without any deliberation and being oblivious of the principle that the courts on very rare occasion, in exercise of powers of judicial review, would interfere with a policy decision.
25. Interference with the policy decision and issue of a mandamus to frame a policy in a particular manner are absolutely different. The Act has conferred power on the Central Government to issue Notification regarding the manner in which the census has to be carried out and the Central Government has issued Notifications, and the competent authority has issued directions. It is not within the domain of the Court to legislate. The courts do interpret the law and ::: Downloaded on - 15/04/2017 21:21:51 :::HCHP 29 in such interpretation certain creative process is involved. The courts have the jurisdiction to declare the law as unconstitutional. That too, where it is called for. The court may also fill up the gaps in .
certain spheres applying the doctrine of constitutional silence or abeyance. But, the courts are not to plunge into policy making by adding something to the policy by way of issuing a writ of mandamus. There the judicial restraint is called for remembering what we have stated in the beginning. The courts are required to understand the policy decisions framed by the Executive. If a policy decision or a Notification is arbitrary, it may of invite the frown of Article 14 of the Constitution. But when the Notification was not under assail and the same is in consonance with the Act, it is really unfathomable how the High Court could rt issue directions as to the manner in which a census would be carried out by adding certain aspects. It is, in fact, issuance of a direction for framing a policy in a specific manner.
26. In this context, we may refer to a three-Judge Bench decision in Suresh Seth V. Commr., Indore Municipal Corporation, (2005)13 SCC 287, wherein a prayer was made before this Court to issue directions for appropriate amendment in the M.P. Municipal Corporation Act, 1956 so that a person may be debarred from simultaneously holding two elected offices, namely, that of a Member of the Legislative Assembly and also of a Mayor of a Municipal Corporation.
Repelling the said submission, the Court held: (SCC pp.288-89, para 5) "In our opinion, this is a matter of policy for the elected representatives of people to decide and no direction in this regard can be issued by the Court. That apart this Court cannot issue any direction to the legislature to make any particular kind of enactment. Under our constitutional scheme Parliament and Legislative Assemblies exercise sovereign power to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation. In Supreme Court Employees' Welfare Assn. v. Union of India, (1989)4 SCC 187 (SCC para 51) it has been held that no ::: Downloaded on - 15/04/2017 21:21:51 :::HCHP 30 court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of a subordinate legislation pursuant to the delegated authority of a legislature, .
such executive authority cannot be asked to enact a law which it has been empowered to do under the delegated legislative authority. This view has been reiterated in state of J & K v A.R. Zakki,1992 Supp(1) SCC 548. In A.K. Roy v. Union of India, (1982)1 SCC 271it was held that no mandamus can be issued to enforce an Act which has been passed by the legislature."
of
30. Consequently in view of the detailed discussions made hereinabove, we do not see any reason rt to interfere with the decision taken by the respondents and to invoke extra ordinary jurisdiction as prayed for by the petitioner in the present petition. Accordingly, the writ petition is dismissed.
31. Interim direction, if any, is vacated. All miscellaneous applications are disposed of.
(Mansoor Ahmad Mir)
Chief Justice
October 5, 2016 (Sandeep Sharma)
(aks) Judge
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