Himachal Pradesh High Court
Naval Thakur And Others vs State Of H.P. & Ors on 10 January, 2023
Bench: Tarlok Singh Chauhan, Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 185 of 2023
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Date of Decision : 10.1.2023
Naval Thakur and others ....Petitioners.
Versus
State of H.P. & Ors. ....Respondents.
Coram
THE HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN, JUDGE
THE HON'BLE MR. JUSTICE VIRENDER SINGH, JUDGE
Whether approved for reporting?
__________________________________________________
For the petitioners: Mr. Kanwar Pradeep Singh,
Advocate.
For the respondents: Mr. Anoop Rattan, Advocate General
with Mr. J.S. Guleria, Deputy Advocate
General.
Tarlok Singh Chauhan, Judge (Oral)
As many as 29 petitioners have jointly filed the instant petition for the grant of following substantive relief:-
"It is, therefore, most respectfully prayed that keeping in view the facts and circumstances as stated above this Hon'ble Court be pleased to restrain the respondents from raising the construction of Panchayat Bhawan/office at village Kalyana and direct the respondents to construct and build the Panchayat Bhawan of Gram Panchayat, Rahed at Sub-village Round of Mauza Rahed on the land comprised in Khasra No. 585 as per the Government Scheme and Notification and resolution passed by the Gram Panchayat, Hinner, Tehsil Kandaghat, District Solan (H.P.) in the interest of justice and equity."::: Downloaded on - 13/01/2023 20:30:54 :::CIS 2
2. It was averred that the petitioners are permanent residents of Villages Round, Neuanal, Sawa Gaon, Rahed and Katal .
and the said villages were fallen within the jurisdiction of Gram Panchayat, Hinner Tehsil Kandaghat, District Solan, H.P. It was further averred that the petitioners and many other persons of the villages had requested the respondents for making and constructing a separate Gram Panchayat, nearby their villages. A resolution to this effect had been passed by the Gram Panchayat, Hinner on 12.12.2019, wherein it was unanimously resolved and decided that three revenue Villages i.e. Tikkari, Tananji and Rehad, which are at a distance of 13-14 kilometers from the existing Gram Panchayat, Hinner should be provided with a Panchayat Bhawan at sub-village Round. It was thereafter that a Notification dated 15.9.2020 was issued by the Government, thereby creating a new Gram Panchayat, Rahed. It was further claimed that thereafter petitioners No.1 to 8 gifted a portion of the land for construction of the Panchayat Bhawan but now the petitioners have come to know that in spite of the Government Notification, the resolution has been passed by the Gram Panchayat for construction of the Panchayat Bhawan at Gram Panchayat, Rahed, which is a far of place at a distance of three kilometers from the villages of the petitioners, hence the instant petition.
::: Downloaded on - 13/01/2023 20:30:54 :::CIS 33. At the outset, it may be noticed that none of the Gram Panchayats have joined hands with the petitioners and rather Gram .
Panchayats, Hinnar and Rahed along with one of its President, in fact, are adversaries and have been arraigned as respondents.
Meaning thereby, that the petitioners do not represent the voice of the people of the Gram Panchayat or else it would have been the Gram Panchayat and these individuals would not have approached this Court by filing a petition to this effect. In such circumstances, we are clearly of the view that petitioners lack locus-standi to file the instant petition.
4. That apart, it is more than certain that choosing a site for the construction of Hospital, School, College, Panchayat Bhawan etc. is a policy matter and, therefore, should normally be not interfered with by the Courts.
5. A similar question of law came up for consideration before the learned Division Bench of this Court, of which one of us (Justice Tarlok Singh Chauhan) was Member in CWP No. 621 of 2014 titled Nand Lal and another vs. State of H.P. and others reported in 2014 (2) HLR (DB) 982, where the petitioners therein had challenged the decision of the Government to open a Government Degree College at Diggal on the ground that the same should be opened at Ramshehar (Nalagarh) because the Panchayats of the area of Ramshehar had made demand for ::: Downloaded on - 13/01/2023 20:30:54 :::CIS 4 sanctioning and opening of the College at Ramshehar, which was more feasible and centrally located, wherein this Court held as .
under:-
"4. Heard. The moot question for consideration in this writ petition is-whether the petitioners can question the decision made by the Government for opening a Government Post Graduate College at Diggal, District Solan?
5. During the process of consideration of the issue, the residents of various Gram Panchayats of Ramshehar area made resolution(s) and represented to the Government for sanctioning and opening a Degree College at Ramshehar (Nalagarh), District Solan, instead of at Diggal, District Solan. After considering all the documents and keeping in view the policy-norms, governing the field, the respondents made decision to open the said college at Diggal.
6. The petitioners are aggrieved for the reason that the State Government has not made decision in accordance with the facts, their contentions read with norms and policy.
7. It is a beaten law of land that Government decision and policy cannot be subject matter of a writ petition, unless its arbitrariness is shown in the decision making process.
8. It is averred that Panchayats of the area of Ramshehar have made demand for sanctioning and opening the said college at the said place, which is centrally located and is feasible also.
9. The Apex Court in Sidheshwar Sahakari Sakhar Karkhana Ltd. Vs. Union of India and others, 2005 AIR SCW 1399, has laid down the guidelines and held that Courts should not interfere in policy decision of the Government, unless there is arbitrariness on the face of it.
10. The Apex Court in a latest decision reported in Manohar Lal Sharma Vs. Union of India and another, (2013) 6 SCC 616, also held ::: Downloaded on - 13/01/2023 20:30:54 :::CIS 5 that interference by the Court on the ground of efficacy of the policy is not permissible. It is apt to reproduce paragraph 14 of the said decision as under:
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"14. On matters affecting policy, this Court does not interfere unless the policy is unconstitutional or contrary to the statutory provisions or arbitrary or irrational or in abuse of power. The impugned policy that allows FDI up to 51% in multi-brand retail trading does not appear to suffer from any of these vices."
14. The Apex Court in the case titled as Mrs. Asha Sharma versus Chandigarh Administration and others, reported in 2011 AIR SCW 5636 has held that policy decision cannot be quashed on the ground that another decision would have been more fair, wise, scientific or logical and in the interest of society. It is apt to reproduce para 10 herein:-
"10. The Government is entitled to make pragmatic adjustments and policy decisions, which may be necessary or called for under the prevalent peculiar circumstances. The Court may not strike down a policy decision taken by the Government merely because it feels that another decision would have been more fair or wise, scientific or logic. The principle of reasonableness and non-arbitrariness in governmental action is the core of our constitutional scheme and structure. Its interpretation will always depend upon the facts and circumstances of a given case. Reference in this regard can also be made to Netai Bag v. State of West Bengal [(2000) 8 SCC 262 : (AIR 2000 SC 3313)]."
15. It appears that the respondents have examined all aspects and made the decision. Thus, it cannot be said that the decision making process is bad. The Court can not sit in appeal and examine correctness of policy decision. The Apex Court in the case titled as Bhubaneswar Development Authority and another versus Adikanda Biswal and others, reported in (2012) 11 SCC ::: Downloaded on - 13/01/2023 20:30:54 :::CIS 6 731 laid down the same principle. It is apt to reproduce para 19 of the judgment herein:-
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"19. We are of the view that the High Court was not justified in sitting in appeal over the decision taken by the statutory authority under Article 226 of the Constitution of India. It is trite law that the power of judicial review under Article 226 of the Constitution of India is not directed against the decision but is confined to the decision making process. The judicial review is not an appeal from a decision, but a review of the manner in which the decision is made and the Court sits in judgment only on the correctness of the decision making process and not on the correctness of the decision itself. The Court confines itself to the question of legality and is concerned only with, whether the decision making authority exceeded its power, committed an error of law, committed a breach of the rules of natural justice, reached an unreasonable decision or abused its powers."
6. The aforesaid judgment was followed by learned Division Bench of this Court, of which one of us (Justice Tarlok Singh Chauhan) was Member in CWP No. 4625 of 2012 titled Gurbachan vs. State of H.P. and others, decided on 15th July, 2014, which pertained to the shifting of the veterinary dispensary from village Kosri to village Lunus, in Tehsil Nalagarh, District Solan, H.P. This Court after reiterating what had been stated in Nand Lal's case (supra) refused to interfere and observed that this Court cannot sit in appeal and examine the correctness of a policy decision.
::: Downloaded on - 13/01/2023 20:30:54 :::CIS 77. The scope of judicial review and its exclusion was a subject matter of a fairly recent decision by three Judges of the .
Hon'ble Supreme Court in Census Commissioner and others vs. R. Krishnamurthy (2015) 2 SCC 796 and it was held that it is not within the domain of Courts to embark upon enquiry as to whether particular public policy is wise and acceptable or whether better policy could be evolved, Court can only interfere if policy framed is absolutely capricious or not informed by reasons or totally arbitrary and founded on ipse dixit offending Article 14. It was 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 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 ::: Downloaded on - 13/01/2023 20:30:54 :::CIS 8 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 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 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).
"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 out 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 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 ::: Downloaded on - 13/01/2023 20:30:54 :::CIS 9 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 271, it was held that no mandamus can be issued to enforce an Act which has been passed by the legislature."
27. At this juncture, we may refer to certain authorities about the justification in interference with the policy framed by the Government. It needs no special emphasis to state that interference with the policy, though is permissible in law, yet the policy has to be scrutinized with ample circumspection.
28. In N.D. Jayal and Anr. V. Union of India & Ors.(2004) 9 SCC 362, the Court has observed that in the matters of policy, when the Government takes a decision bearing in mind several aspects, the Court should not interfere with the same. In Narmada Bachao Andolan V. Union of India (2000) 10 SCC 664, it has been held thus: (SCC p. 762, para 229) " 229. "It is now well settled that the courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision. Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy-making process and the courts are ill-
equipped to adjudicate on a policy decision so undertaken. The court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people's fundamental rights are not transgressed upon except to the extent permissible under the Constitution."
29. In this context, it is fruitful to refer to the authority in Rusom Cavasiee Cooper V. Union of India, (1970) 1 SCC 248, wherein it has been expressed thus: (SCC p. 294, para 63) "63....It is again not for this Court to consider the relative merits of the different political theories or ::: Downloaded on - 13/01/2023 20:30:54 :::CIS 10 economic policies... This Court has the power to strike down a law on the ground of want of authority, but the Court will not sit in appeal over the policy of Parliament .
in enacting a law".
30. In Premium Granites V. State of Tamil Nadu, (1994) 2 SCC 691 while dealing with the power of the courts in interfering with the policy decision, the Court has ruled that: (SCC p.715, para 54) "54. it is not the domain of the court to embark upon unchartered ocean of public policy in an exercise to consider as to whether a particular public policy is wise or a better public policy could be evolved. Such exercise must be left to the discretion of the executive and legislative authorities as the case may be. The court is called upon to consider the validity of a public policy only when a challenge is made that such policy decision infringes fundamental rights guaranteed by the Constitution of India or any other statutory right."
31. In M.P. Oil Extraction and Anr. V. State of M.P. & Ors.(1997) 7 SCC 592, a two-Judge Bench opined that: (SCC p. 611, para 41):-
"41........ The executive authority of the State must be held to be within its competence to frame a policy for the administration of the State. Unless the policy framed is absolutely capricious and, not being informed by any reason whatsoever, can be clearly held to be arbitrary and founded on mere ipse dixit of the executive functionaries thereby offending Article 14 of the Constitution or such policy offends other constitutional provisions or comes into conflict with any statutory provision, the Court cannot and should not outstep its limit and tinker with the policy decision of the executive functionary of the State."
32. In State of M.P. V. Narmada Bachao Andolan & Anr.(2011) 7 SCC 639, after referring to the State of Punjab V. Ram Lubhaya ::: Downloaded on - 13/01/2023 20:30:54 :::CIS 11 Bagga (1998) 4 SCC 117 , the Court ruled thus: (SCC pp. 670-71, para 36):-
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"36. The Court cannot strike down a policy decision taken by the Government merely because it feels that another decision would have been fairer or more scientific or logical or wiser. The wisdom and advisability of the policies are ordinarily not amenable to judicial review unless the policies [pic]are contrary to statutory or constitutional provisions or arbitrary or irrational or an abuse of power. (See Ram Singh Vijay Pal Singh v. State of U.P., (2007) 6 SCC 44, Villianur Iyarkkai Padukappu Maiyam v. Union of India, (2009) 7 SCC 561 and State of Kerala v. Peoples Union for Civil Liberties, (2009) 8 SCC 46.)"
33. From the aforesaid pronouncement of law, it is clear as noon day that it is not within the domain of the courts to embark upon an enquiry as to whether a particular public policy is wise and acceptable or whether a better policy could be evolved. The court can only interfere if the policy framed is absolutely capricious or not informed by reasons or totally arbitrary and founded ipse dixit offending the basic requirement of Article 14 of the Constitution. In certain matters, as often said, there can be opinions and opinions but the Court is not expected to sit as an appellate authority on an opinion.
8. Aforesaid exposition of law would go to show that policy matters cannot normally be interfered with by the Courts, except where the policy is contrary to law or is in violation of the provisions of the Constitution or is arbitrary or irrational and the Courts must then perform their constitutional duties by striking it down.
::: Downloaded on - 13/01/2023 20:30:54 :::CIS 129. Therefore, the moot question required to be considered is as to whether merely because certain section of the general .
public does not subscribe and approve the decision of the Government to construct and build the Panchayat Bhawan of Gram Panchayat, Rahed at Sub-village Round of Mauza Rahed on the land comprised in Khasra No. 585, can the same be nullified on this ground alone. It is more than settled that individual interest must yield in favour of societal and public interest and this Court would only interfere with policy decision if the petitioners can carve out a case falling within the parameters as set out in para 9 supra.
10. Similar reiteration of law can be found in another judgment rendered by Division Bench of this Court, of which one of us (Justice Tarlok Singh Chauhan) was Member in CWP No. 4353 of 2020, titled Rajinder Singh Rana and others Vs. State of Himachal Pradesh and others, decided on 18.8.2021.
11. Thus, what appears to be more than certain is that in policy matters, which have in the exclusive discretion, domain and jurisdiction of the State Government, the Courts are loath to interfere in such policy decision of the Government, which have been taken with myriad of facts mainly because it is not to the liking of the petitioners can ever invite the interference of the Court except on limited grounds i.e. if it is not found on well settled grounds like the decision being arbitrary, mala fide, unreasonable or irrational.
::: Downloaded on - 13/01/2023 20:30:54 :::CIS 13The Government is always entitled to make pragmatic adjustments and policy decision(s), which may be necessary or called for under .
the prevalent peculiar circumstances. The Court may not strike down a policy decision taken by the Government merely because it feels that another decision would have been more fair or wise, scientific or logic. The principle of reasonableness and non-
arbitrariness in governmental action is the core of our constitutional scheme and structure and its interpretation will always depend upon the facts and circumstances of a given case. There is nothing on record to suggest that the decision of the Government to commence construction at another site is either capricious or not founded on any reasons or form of ipse dixit of the respondents. Thus in such circumstances, it is not within the domain of this Court to weigh the pros and cons of the policy for that belongs to the Executive. Even otherwise, this petition raises disputed questions of facts and in any case where the headquarters of the Gram Pancyayat should be located is a question for the State to decide and not for this Court to decide.
12. We accordingly find no reason to entertain this petition and the same is accordingly dismissed in limini.
::: Downloaded on - 13/01/2023 20:30:54 :::CIS 1413. Pending miscellaneous applications, if any, also stand disposed of.
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(Tarlok Singh Chauhan) Judge (Virender Singh) Judge 10th January, 2023 (Guleria) ::: Downloaded on - 13/01/2023 20:30:54 :::CIS