Humanity & Anr vs State Of West Bengal

referred to as allottee), by the State of West

Bengal. The High Court, by its judgment dated

12.4.2010, upheld the allotment of plot of land

being plot no. CA-222 by allotment letter dated

17.2.2009. It disposed of all the petitions by

a direction that in order to retain leasehold

rights and possession of the said plot in

Sector-V, Salt Lake City (Bidhannagar),

Kolkata, the allottee has to pay the State

Government a sum of Rs.43,25,500/-, failing

which the lease deed dated 1.4.2009 shall be

2

treated as invalid and possession of the land

shall be handed back to the State Government.

3. Challenging the said judgment of the Division

Bench, three SLP's (11783/2011, 22503/2010 and

22305/2010) were filed before this Court and as

the judgment is one, and the facts and

questions are identical, the cases were heard

together and are being decided by this

judgment.

4. The material facts of the case are that on

5.11.2006, an advertisement was issued by the

Government of West Bengal, Urban Development

Department, earmarking a plot of land measuring

about 50 kathas in Plot No. BF-158 in Sector-I,

Salt Lake (Bidhannagar), Kolkata- 700064, for

the setting up of an integrated school from

primary level to higher secondary level. It was

stated in the advertisement that the school

would basically be academic in nature, but with

3

extra-curricular activities, which would form

an integral part of the curriculum and it was

stated that the intending

Organization/Institution/Body/Registered

Society/ Trust which were capable of running

and managing such a school by their own

resources, may apply to the Principal

Secretary, Urban Development Department,

Government of West Bengal, Nagarayan, DF-8,

Sector-1, Bidhannagar, Kolkata- 700064 on plain

paper within 15 days from the publication of

the advertisement giving details of the

project. It was intimated that the aforesaid

plot of land would be leased to the aforesaid

applicants for 999 years on certain terms

indicated in the advertisement.

5. One of the terms in the said advertisement, to

which some reference shall be made later on, is

as follows:

4 "The government, however, reserves the

right to change the location of the land

and revise the rate of salami at its full

discretion. Such decision shall be final."

6. The allottee applied on 17.11.2006. In the said

application, the allottee inter alia stated:

"There is ever increasing demand for

such institutions, especially in the

northern and eastern part of the

metropolitan city of Kolkata. The

object of the proposed educational

institution would be academic

excellence with a balanced blend of

co-curricular activities and sports

for the all round growth of the

younger generation...In this context,

I propose to keep a few seats reserved

for such needy cum meritorious

pupils."

7. In the project report submitted by the

allottee, it was stated that the school would

be owned by a Registered Society/Trust. A

Committee consisting of several Government

officials considered about 20 applications,

filed pursuant to the aforesaid advertisement.

The Committee consisted of:

5 a. Chief Secretary, Government of West Bengal

b. Principal Secretary/ Secretary to Chief

Minister

c. Principal Secretary/ Secretary, Urban

Development Department

d. Principal Secretary/ Secretary,

Information and Cultural Affairs

Department

e. Principal Secretary/ Secretary, Cottage

and Small-Scale Industries Department

f. Principal Secretary/ Secretary, Commerce

and Industries Department

g. Managing Director, West Bengal Industries

Development Corporation

8. Surprisingly nobody from the Education

Department was in the Committee.

9. Thereafter, by resolution dated 10.1.2007, the

aforesaid Committee selected the allottee and

an allotment order dated 22.02.2007 in respect

of plot no. BF-158 was issued by the Joint

Secretary, Urban Department to the allottee.

Thereupon, a lease deed was executed between

6

the Government and the allottee on 29.10.2007

and possession of the said plot was given on

14.2.2008.

10. It may be noted that the aforesaid selection of

the allottee in respect of plot No.BF-158 was

not challenged and is not the subject matter of

dispute in these proceedings.

11. Thereafter, on 19.1.2009, a letter was written

to Sri Ashoka Bhattacharya, Minister for Urban

Development and Municipal Affairs by the

allottee by stating that after going through

the norms of `ICSE' he felt that allotment of a

bigger plot was needed for getting affiliation

and a prayer was made for allotment of another

bigger plot.

12. Since the prayer made in this letter and its

consideration by the Government is vitally

important for the decision in this case, the

letter is set out below:

7 "At present I am the owner of Plot No.

158, Block-BF in Salt Lake, Sector-I of 48

Kathas of land which was given to me for

the purpose of building a school. But

after going through the norms of ICSE to

get an affiliation, we now need a plot of

more than 60 kathas (1 acre). So I would

like to surrender this allotted land to

you and at the same time apply for a plot

of a bigger area so that I can take the

school project forward."

(Underlined by Court)

13. It may be noted that in this letter, the

allottee stated that he `would like to

surrender' the plot already allotted to him

and would at the same time `apply for a

plot of a bigger area'. This the allottee was

seeking to do in order to comply with the norms

of ICSE.

14. Within a month thereafter, by a communication

dated 17.2.2009, issued from the Urban

Development Department, the allottee was

informed about allotment of another plot- No.

CA-222 in Sector-I measuring 62 kathas (it is

actually 63.04 kathas). This allotment of a

8

different plot, which is of much bigger size,

in a different area, was challenged before the

High Court and before this Court on various

grounds.

15. The first ground of challenge was that there

was no advertisement for allotment of the

subsequent plot being plot No. CA-222, which is

much bigger than the initial plot and allotment

of this different and bigger plot, without any

advertisement by the Government, only on the

prayer of the allottee is arbitrary,

discriminatory and violative of Article 14 of

the Constitution.

16. The second ground of challenge is that even

though the impugned allotment was made on

17.2.2009 "subject to execution of registration

of deed of surrender," the lease deed pursuant

to such allotment was executed on 01.04.2009

and the same was presented for registration on

9

3.4.2009 and was registered on 6.4.2009. The

possession of the plot was made over to the

allottee on 30.4.2009. A draft deed of

surrender was sent by the State Government to

the allottee and was signed by the allottee on

5.3.2009 but the same was not presented for

registration and the same was registered only

after filing of the petition before the High

Court. The complaint of the petitioner is that

the plot was surrendered only after the writ

petition was admitted by the High Court and

direction for filing of affidavit was given.

17. The third ground of challenge was that when the

allottee initially applied and was allotted the

previous plot, the norms of ICSE affiliation

were already notified and the allottee claiming

to set up a school for ICSE affiliation must be

aware of those norms.

1 18. The fourth ground was that the claim of the

allottee for complying with the ICSE norm is

just a specious plea, in fact the Trust which

the allottee has set up for the school does not

at all comply with the ICSE norms.

19. The fifth ground was that in allotting the

subsequent plot, to the allottee, the

authorities have flouted the working plan which

is available for Salt Lake City in the absence

of a master plan.

20. The learned counsel for the State, on the other

hand, submitted before this Court that there

was nothing illegal in the Government's

accepting the subsequent offer of the allottee

and in doing so the Government acted in terms

of the original advertisement where it had

reserved its right to alter the original

location of the allotted plot. Learned counsel

for the State submitted that the subsequent

1

plot which has been allotted to the allottee

cannot be called allotment of a new plot and no

fresh advertisement for the same is necessary

and relied on the impugned judgment in which

High Court entered a similar finding. It was

also submitted that the initial allotment made

in favour of the allottee was examined by a

high-powered Committee and after examining

everything allotment was made and there is no

illegality in the entire transaction.

21. Learned counsel for the allottee submitted that

the bona fide of the allottee must be looked

into and considered by this court and the

project is for a public purpose of setting up a

good school in the area which is very much in

need of the same. No challenge has been made to

the allotment of the subsequent plot in favour

of the allottee by any educational institution

or by those who applied for the first

allotment. The challenge by the public interest

1

litigants should not be entertained by this

court when the setting up of the school itself

was in public interest. It is further urged

that the subsequent allotment does not require

a fresh advertisement.

22. The other grounds of challenge pointed out by

the appellants, according to the counsel of the

allottee, are inconsequential and may not be

considered by this court in view of the

overwhelming public interest in the setting up

of a school.

23. Considering the aforesaid rival submissions,

this court is inclined to hold that the

allotment of plot no. CA-222 in favour of the

allottee cannot be sustained for the reasons

discussed hereunder.

24. When the Government decided to allot a

substantial plot for setting up of a school by

1

private organizations and when on the basis of

an advertisement to that effect various

organizations responded, the action of the

Government was one of granting largesse in as

much as land of which the Government is owner

and which was allotted is a very scarce and

valuable property.

25. It has been repeatedly held by this court that

in the matter of granting largesse, Government

has to act fairly and without even any

semblance of discrimination. Law on this

subject has been very clearly laid down by this

court in the case of Ramana Dayaram Shetty v.

International Airport Authority of India and

Others reported in 1979 (3) SCC 489. A three-

Judge Bench in the said decision has recognized

that the Government, in a welfare State, is in

a position of distributing largesse in a large

measure and in doing so the Government cannot

act at its pleasure. This court perusing the

1

new jurisprudential theory of Professor Reich

in his article on the "The New Property" (73

Yale Law Journal 733) accepted the following

dictum contained therein:

"The government action be based on

standards that are not arbitrary and

unauthorized."

26. This court explained the purport of the

aforesaid formulation by holding:

"The government cannot be permitted to say

that it will give jobs or enter into

contracts or issue quotas or licenses only

in favour of those having grey hair or

belonging to a particular political party

or professing a particular religious

faith. The government is still the

government when it acts in the matter of

granting largesse and it cannot act

arbitrarily. It does not stand in the same

position as a private individual."

(Para 11, page 505 of the report)

27. The aforesaid dictum in Ramana (supra) is still

followed by this court as the correct

exposition of law and has been subsequently

1

followed in many other decisions. In M/s

Kasturi Lal Lakshmi Reddy v. State of Jammu and

Kashmir & Another reported in 1980 (4) SCC 1,

another three-Judge Bench relied on the dictum

in Ramana (supra) and held whenever any

governmental action fails to satisfy the test

of reasonableness and public interest, it is

liable to be struck down as invalid. This court

held that a necessary corollary of this

proposition is that the Government cannot act

in a manner which would benefit a private

party. Such an action will be contrary to

public interest. (See para 14, p. 13 of the

report)

28. The setting up of a private school may have

some elements of public interest in it but

Constitution Bench of this court has held in

T.M.A. Pai Foundation & Ors. v. State of

Karnataka & Others reported in 2002 (8) SCC

481, that the right of a citizen, which is not

1

claiming minority rights to set up a private

educational institution is part of its

fundamental right to carry on an occupation

under Article 19(1)(g). Such enterprise may not

be a totally business enterprise but profit

motive cannot be ruled out.

29. In view of the aforesaid legal principle, the

question is whether the impugned order of the

Government vide allotment letter dated

17.2.2009 allotting a plot of 63.04 kathas of

land in a prime area in Salt Lake City is an

allotment which is different than the previous

allotment of 50 kathas which was made to the

allottee in Plot No. BF-158.

30. The answer is obvious from the admitted facts

of the case. Even the allottee in his letter

dated 19.1.2009 praying for such allotment,

made it clear that he was applying for a plot

of bigger area after surrendering the previous

1

plot. The sequence suggested in the allottee's

letter is that he would surrender the already

allotted land and at the same time apply for a

plot of bigger area. Therefore, the request of

the allottee is to give another plot of land.

Pursuant to such request of the allottee,

another plot of land was allotted to him with

exemplary speed by the Government, within a

month, if we go by the normal pace in

governmental transactions. The request was made

by the allottee for a bigger plot of land on

19.1.2009 to Mr. Ashok Bhattacharya, Minister

of Urban Development and Municipal Affairs and

from the said department a communication was

sent to the allottee on 17.2.2009, to the

effect that after considering the request of

the allottee, the Government was pleased to

cancel its previous order of allotment and in

lieu thereof was allotting a new plot of land

being no. CA-222 measuring 62 kathas (which is

actually 63.04 kathas).

1 31. Admittedly, no advertisement was issued and no

offer was sought to be obtained from the

members of the public in respect of the new

allotment of a much bigger plot. In view of the

principles laid down by this court, the

impugned allotment is clearly in breach of the

principles of Article 14 explained by this

court in Ramana (supra), Kasturi Lal (supra)

and other subsequent cases.

32. This court cannot persuade itself to hold that

this allotment is in exercise of the right of

the Government in the first advertisement dated

5.11.2006, where the Government reserved its

right to change the location of the land. The

second allotment is not only about a change in

the location of the land, but the subsequent

allotment is also of a much larger plot of

land, brought about in terms of the request of

the allottee for a bigger plot. The subsequent

1

change was not brought about by the Government

in its own discretion, assuming but not

admitting that the Government could exercise

its discretion in such a fashion but was in

response to a written request of the allottee.

33. The Government was so anxious to oblige the

allottee by giving bigger plot that too with no

loss of time, the said allotment was made by

the Government admittedly without verifying

whether the allottee had surrendered the

previous plot allotted to him. From the facts

which have been disclosed here, it is clear

that such surrender took place much later on

17.12.2009, when the allottee sent a forwarding

letter the registered deed of surrender in

respect of the previous plot no. BF-158. The

letter of the allottee dated 16.12.2009 would

show the following:

"Though I have executed the Deed of

Surrender and made over the same to you

2

but the formality of having the same

registered could not be completed by me

due to oversight which was mainly because

of my busy schedule and constant travel. I

understand that the said Deed cannot be

registered now for lapse of time unless

extended by the State.

I shall be highly grateful if you could

kindly arrange to have the said period

extended or allow me to register a fresh

deed of surrender at the earliest."

34. It is, therefore, clear that the Government

made allotment of the new plot to the allottee

on terms which were even more generous than the

ones suggested by the allottee in his letter

dated 19.1.2009. Such action of the Government

definitely smacks of arbitrariness and falls

foul of Article 14.

35. This factual aspect of the matter discussed in

detail under the second ground of challenge was

not disputed before us by either the learned

counsel for the Government or the learned

counsel for the allottee.

2 36. On the third ground of challenge about

compliance with ICSE norms, we find that the

ICSE norms were in place as early as 28.4.2006

and those norms have been disclosed by the

counter-affidavit filed by the allottee before

this court in the SLP filed by C.A. Block

Citizens' Association. Therefore, much before

the application was made by the allottee on

17.11.2006, those norms were available on

record. Even then he applied for a plot of 50

kathas of land in terms of the advertisement

dated 5.11.2006 issued by the State Government.

37. On the fourth ground of challenge, we find that

according to clause 2 of the ICSE norms, the

school should be run by a Registered

Society/Trust or a Company (under section

25(1)(a) of the Companies Act, 1986) for

educational purposes. It must not be run for

profit.

2 38. The constitution of the Society/Trust/Company

running the school should be such that it does

not vest control in a single individual or

members of the same family.

39. But in the instant case, a Society which has

been registered for running the proposed school

under the name of 'Ganguly Education and

Welfare Society' consists of the following

members:

a. Sourav Ganguly

b. Dona Ganguly

c. Snehasish Ganguly

d. Chandidas Ganguly

e. Nirupa Ganguly

f. Arup Chatterjee

g. Deepak Kumar Mitra

2

40. Of these names, the first 5 are all in the

family and stay in the same address at 2-6,

Biren Roy Road (E), Barisha, Kolkata. Mr. Arup

Chatterjee is also a relation of the family

staying in Brahma Samaj Road and only Mr.

Deepak Kumar Mitra, the Chartered Accountant,

is outside the family. Therefore, constitution

of such a Trust to run the school is clearly

against the ICSE norms.

41. It is thus clear that the allottee is

selectively seeking compliance of the ICSE

norms only in asking for a bigger plot. In so

far as other norms are concerned, they are

clearly flouted as seen in the constitution of

the Trust set up to run the school. Hence, the

argument on behalf of the appellant that the

plea of the allottee to ask for a bigger plot

in the name of complying with ICSE norms is not

a bona fide plea is of some substance. The

learned counsel for the allottee has not been

2

able to meet the said argument as to how the

ICSE norms are complied with if the school is

to be run by such a Trust, which consists of

members of the family and this court finds that

there is a lot of substance in this argument of

the appellants. This point was also urged

before the High Court but unfortunately the

High Court brushed aside this objection, if we

may say so with respect, by a very strange

logic by observing:

"We are not required to consider this

aspect of the matter because it will be

for the governing body of the ICSE to

examine the application which may be made

for recognition/affiliation of the school

which is yet to be established and

construction yet to be made. As and when

any application will be made for such

recognition/affiliation, the concerned

authority/body will consider the

application and it is not for this court

to speculate at this stage as to what

would be the composition of the

organization/body/ society which will

apply to Council for ICSE for

recognition/affiliation of the integrated

school."

2

42. This Court is of the view that a challenge to

the legality of an order of allotment of land

by the Government must be decided by the Court

on the basis of material available when the

High Court is examining the challenge. The High

Court cannot refuse to examine the challenge on

the basis of what may happen in future. By

doing so, High Court refused to exercise a

jurisdiction which is vested in it.

43. In connection with the fifth ground of

challenge, a map was produced before us by the

learned counsel for the appellant, which is a

working map in the absence of a master plan for

sector-I of Salt Lake area, dated 2.9.2004. In

that map, the plot CA-222 is marked as one

meant for a college yet the same has been given

to the allottee for establishing an ICSE

school. The learned counsel for the appellant

submits that such allotment is clearly in

violation of the aforesaid plan. The learned

2

counsel for the State has not been able to

refute the aforesaid contention of the

appellant.

44. However, it has been repeatedly urged, both by

the learned counsel for the State and also that

of the allottee that both the State Government

and the allottee had bona fide intentions of

establishing a school. Therefore, the court in

public interest should uphold allotment and

allow the school to be set up and should

refrain from interfering in public interest.

45. This court is unable to accept the aforesaid

contention.

46. It is axiomatic that in order to achieve a bona

fide end, the means must also justify the end.

This court is of the opinion that bona fide

ends cannot be achieved by questionable means,

specially when the State is involved. This

2

court has not been able to get any answer from

the State why on a request by the allottee to

the Hon'ble Minister for Urban Development, the

Government granted the allotment with

remarkable speed and without considering all

aspects of the matter. This court does not find

any legitimacy in the action of the Government,

which has to act within the discipline of the

constitutional law, explained by this Court in

a catena of cases. We are sorry to hold that

in making the impugned allotment in favour of

the allottee, in the facts and circumstances of

the case, the State has failed to discharge its

constitutional role. Recently this Court

relying on Ramana (supra), Kasturi Lal (supra)

and various other judgments summed up the legal

position in Akhil Bharatiya Upbhokta Congress

v. State of Madhya Pradesh and others reported

in JT 2011 (4) SC 311. The relevant extracts

from paragraph 31 (page 336 of the report) are

excerpted below:-

2 "...Every action/decision of the State

and/or its agencies/instrumentalities to

give largesse or confer benefit must be

founded on a sound, transparent,

discernible and well defined policy,

which shall be made known to the public

by publication in the Official Gazette

and other recognized modes of publicity

and such policy must be

implemented/executed by adopting a non-

discriminatory or non-arbitrary method

irrespective of the class or category of

persons proposed to be benefited by the

policy. The distribution of largesse

like allotment of land, grant of quota,

permit licence etc. by the State and its

agencies/instrumentalities should always

be done in a fair and equitable manner

and the element of favouritism or

nepotism shall not influence the exercise

of discretion, if any, conferred upon the

particular functionary or officer of the

State."

47. The Division Bench of the High Court, with

respect, fell into an error by holding that by

allotting plot no. CA-222 without open

advertisement and public offer the Government

action is not illegal or arbitrary.

48. In coming to the said conclusion, the Division

Bench relied on two decisions of the Supreme

Court rendered in the cases of Sachidanand

Pandey & another v. State of West Bengal &

others reported in (1987) 2 SCC 295 and Kasturi

Lal (supra). This Court however finds that

2

those two cases stand on completely different

footing.

49. First of all, in the instant case, the

Government initially issued advertisement for

allotment of land for setting up of a school

and to which the allottee responded.

Thereafter, a Committee considered all the

applications and decided to allot the land in

favour of the allottee. The matter rested

there. Then came the letter of the allottee

dated 19.1.2009, which has been set out above.

It is very surprising that the Division Bench

of Calcutta High Court, in paragraph 5 (page 6)

and paragraph 21 (page 18) of the impugned

judgment, recorded a finding that the allottee

was informed by ICSE that for obtaining

affiliation for integrated educational

institution, land should not be less than 60

kathas. This court fails to understand the

basis on which the Division Bench came to such

3

a conclusion. The letter of the allottee dated

19.1.2009 does not even whisper that he was

informed of any objection by ICSE. The letter

proceeds on a totally different basis. The

letter states that after going through the

norms of ICSE, it was the allottee's own

understanding that a plot of more than 60

kathas is necessary to take the school project

forward. Therefore, the High Court's recording

of fact, that the allottee was `informed' by

the ICSE of any objection, is not substantiated

by any material on record. This is a grave

error on the part of the High Court.

50. Apart from that, once the Government has

initiated the process of advertisement, it

cannot jettison the same and allot a new plot

to the allottee without any advertisement. This

action of the Government is certainly arbitrary

and violates the principles of Article 14.

3 51. Neither in Sachidanand Pandey (supra) nor in

Kasturi Lal (supra), any process of advertisement

was ever initiated. In Sachidanand Pandey (supra),

the main questions raised were issues of ecology

and environment. In that case, the court dealt with

the question of issuing public auction by

explaining that there were direct negotiations with

those who came forward to set up five star hotels,

to promote the tourism industry in the State.

Detailed considerations at different levels

proceeded for a very long time before the Taj group

of hotels, with sufficient experience in the hotel

industry, was selected. In the instant case, the

allottee may be a well-known sportsman but does not

claim any expertise as an educationist. Here within

a month of the application made by the allottee,

the allotment was made in a hot haste and without

disclosure by the State of any detailed

consideration. Thus, the present case stand poles

apart from the facts in Sachidanand Pandey (supra).

3 52. In Kasturi Lal (supra) also, the Government's

policy was to set up industries in Jammu and

Kashmir, which was not industrially developed and

thus entrepreneurs, within the State, were offered

encouraging terms for setting up industry.

Therefore, in such a situation the State took a

policy decision not to invite a tender or go in for

advertisement for inviting industrialists from

outside the State. It may be noted that at no

stage, advertisement was thought of by the State in

Kasturi Lal (supra).

53. In the instant case, the impugned allotment of

a different and bigger plot by the government in

favour of the allottee without any advertisement,

when initially advertisement was resorted to, and

then it was given up and everything was rushed

through in hot haste, is unreasonable and

arbitrary, and the High Court was wrong in

upholding the same.

3 54. Before I conclude, I make it clear that I am

aware that the allottee is a cricketer of great

repute and has led this country to victory in many

tournaments, both in India and abroad. I have

watched him on the television on many occasions and

was delighted to see his glorious cover drives and

effortlessly lofted shots over the fence. But as a

Judge, I have different duties to discharge. Here I

must be objective and eschew my likes and dislikes

and render justice to a cause which has come before

the Court.

55. For the reasons aforesaid,the order of

allotment of plot no. CA-222, Sector-V, Salt Lake

(Bidhannagar),Kolkata made in favour of Mr.Sourav

Ganguly,the allottee,is quashed. In consequence

thereof, the lease deed dated 1.4.09, pursuant to

such allotment stands quashed. The allottee must,

within two weeks from date, handover the peaceful

and vacant possession of plot No. CA-222 measuring

63.04 Kathas in Sector-V, Salt Lake City

3

(Bidhannagar), Kolkata to the concerned department

of the State Government. Within two weeks

thereafter the State Government must refund to the

allottee, by a Cheque, the entire money paid by him

for such allotment.

56. The appeals are allowed. The order of the High

Court is set aside.

57. No order as to costs.

.......................J.

(G.S. SINGHVI)

.......................J.

New Delhi (ASOK KUMAR GANGULY)

May 26, 2011

3