G.B. Mahajan And Ors vs Jalgaon Municipal Council And Ors

New State Ice Company v. Ernest A. Liebmann, 285 US 262 Dissenting opinion of Brandeis J; Education Secretary v. Tameside B.C., [1977] AC 1014; referred to, "The Purpose and Scope of Judicial Review" by Sir Garard Brennan is "Judicial Review of Administrative Action in the 1980s", Oxford University Press; referred to.

2. In the ever increasing tempo of urban life and the emerging stresses and strains of planning, wide range of policy options not inconsistent with the objectives of the statute should be held permissible. In the context of ex- panding exigencies of urban planning it will be difficult for the court to say that a particular policy option was better than another. The project is not ultra vires of the powers of the Municipal Council, and hence there is no justification for quashing the Resolution of the Municipal Council. [36G] Policy making Paradigms in Administrative Law" by Colin S. Diver in Harward Law Review, vol. 95 p. 393; referred to.

3. In the instant case, it is possible to fit the power exercised by the Municipal authority into Section 272(1) of the Maharashtra Municipalities Act and hence there is no reason why the provision be interpreted unduly restrictively to exclude such enterprise. [40E]

4. It has not been established that the essential ele- ments of the transaction are such that Section 92 of the Act is violated. It would, indeed be unduly restrictive of the statutory powers of the local authority if a provision enabling the establishment of markets and disposal of occu- pancy-rights therein are hedged in by restrictions not found in the statute. The developer who was authorised to induct occupiers in respect of the area earmarked for him merely exercised, with the consent of the Municipal Council a power to substitute an Occupier in his own place. This is not impermissible when it is with the express consent of the Municipal Council. [40H; 41A-B] 25 5.1 Some phrases which pass from one branch of law to another--as did the expression 'void' and 'voidable' from private law areas to public law situations-carry over with them meanings that may be inapposite in the changed context. Some such thing has happened to the words "Reasonable", "Reasonableness" etc. Different contexts in which the opera- tion of "Reasonableness" as test of validity must be kept distinguished. The administrative law test of 'reasonable- ness' as the touch-stone of validity of the Resolution in the instant case is different from the test of the 'reasona- ble man' familiar to the law of torts, whom English Law figuratively identifies as the "man on the clapham omnibus". In the latter case the standards of the 'reasonable-man', to the extent such a 'reasonable man' is court's creation, is a mere transferred epithet. Yet another area of reasonableness which must be distinguished is the constitutional standards of 'reasonableness' of the restrictions on the fundamental rights of which the Court of Judicial Review is the arbiter. [42F-G; 43A-B] 5.2. The 'reasonableness' in administrative law must distinguish between proper and improper use of power. [44D] Davis Contractors v. Fareham U.D.C., [1956] 2 AH ER 145; Associated Provincial Picture Houses Ltd. v. Fednesbury Corporations, [1948] 1 KB 223; Nottinghamshire County Coun- cil v. Secretary of State for Environment, [1986] AC 240; Tiller v. Atlantic Coast Line Rail Road Company, 318 US 54; Chief Constable v. Evans, [1982] 3 All ER 141; referred to. Administrative Law, by H.W.R. Wade, 6th Edn., pp. 407, 408; Legal Control of Government, by Bernard Sehwartz and H.W.R. Wade, p. 253; referred to.

6. While it is true that principles of judicial review apply to the exercise by a government body of its contractu- al powers, the inherent limitations on the scope of the inquiry are themselves a part of those principles. In a matter even as between the parties, there must be shown a public law element to the contractual decision before judi- cial review is invoked. In the present case the material placed before the Court fails far short of what the law requires to justify interference. [46F]

7. There is no merit in the contention that the Project Scheme was tailored to suit Respondent No. 6 alone or that the project as put to tender did not admit of tenders on fixed comparable parameters. No 26 other tenderer expressed any grievance. The tenders were such that the tenderer could identify the terms which form the basis of comparative evaluation. The charge of arbi- trariness cannot be upheld. [46G-H; 47A]

8. To condemn the Municipal authority's decision, other- wise valid, on the ground alone that the developer is likely to resort to transactions of unaccounted money would, as a judicial remedy, be plainly unthinkable. [47E]

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