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C.A. No. 2143 of 2007 1


REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2143 OF 2007
INSTITUTE OF LAW & ORS. .APPELLANTS

Vs.
NEERAJ SHARMA & ORS. RESPONDENTS
J U D M E N T
V. OPALA OWDA! J.
This appeal is directed against the two separate
impugned orders dated 14.2.2005 passed in Civil Writ
Petition No. 616 o! 2004 "# "oth the mem"ers o! the
$ivision %ench o! the &igh Court o! Pun'a" ( &ar#ana
at Chandigarh and against the order dated 26.04.2006
passed in Civil )isc. No. 5016 o! 2005 and Civil )isc.
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C.A. No. 2143 of 2007 2
No. 61*+ o! 2005. The "rie! !acts o! the case are
stated hereunder,-
2. The appellant-.nstitute o! law was allotted the
land measuring 2/0+*6.2+ s1. #ards 25.*5 acres3 in
4ector +/-5 in the 6nion Territor# o! Chandigarh at
the rate o! 7s.008- per s1. #ard "# the
administration o! 6nion Territor# o! Chandigarh. The
rate was !i9ed "# the Chandigarh 5dministration vide
its Noti!ication No. +1818100-6T:. 24-200281/2+3 dated
*.+.2002 issued under the Pun'a" $evelopment
7egulation 5ct0 152 !i9ing the land rates !or
allotment to educational institutions in the 6nion
Territor# o! Chandigarh. The allotment o! land was
made in !avour o! appellant-.nstitute !or #ears on
lease hold "asis with the condition that the initial
lease period will "e ++ #ears and renewa"le !or two
li;e periods onl# i! the lessee continues to !ul!il
all conditions o! allotment.
+. The respondent No.10 Neera' 4harma0 !iled a Writ
Petition No.616 o! 2004 "e!ore the &igh Court o!
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C.A. No. 2143 of 2007 3
Pun'a" and &ar#ana at Chandigarh 1uestioning the
legalit# and validit# o! the allotment o! land
involved in this case urging various grounds.
4. <n 14.2.20050 the $ivision %ench o! the &igh
Court0 consisting o! the then Chie! =ustice and a
puisne =udge0 "# two separate "ut concurring orders
disposed o! the writ petition cancelling the
allotment o! land and directing the 6nion Territor# o!
Chandigarh to ta;e necessar# corrective steps in the
matter in consonance with the constitutional
philosoph# o! 5rticle 14 o! the Constitution o! .ndia
and !urther directed the 6nion Territor# o! Chandigarh
to ta;e polic# decision !or allotment o! educational
institutional sites in !avour o! eligi"le persons so
as to ensure that the allotments are made o"'ectivel#
and in a transparent manner. 5!ter delivering the
separate concurring orders0 however0 the puisne =udge0
on the post 'udgment script0 speci!ied that there was
no agreement on certain paragraph Nos. 100 120 1+0 14
and 15 o! the order passed "# the then Chie! =ustice.
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C.A. No. 2143 of 2007 4
5. 5ggrieved "# the orders0 the appellants !iled the
applications "eing Civil )isc. No. 5016 o! 2005 and
Civil )isc. No. 61*+ o! 2005 under 7ule +1 o! Chapter
42:3 o! the &igh Court 7ules and <rders read with
Clause 26 o! the >etters Patent0 urging that the
matter "e re!erred to another %ench or the !ull %ench
!or ad'udication on the points o! di!!erence.
6. The learned nominated =udge o! the &igh Court
disposed o! the Civil )isc. 5pplication Nos. 5016 o!
2005 and Civil )isc. No. 61*+ o! 2005 vide order dated
26.4.20060 holding that there was no point o!
di!!erence "etween the =udges o! the $ivision %ench on
the 1uestion o! maintaina"ilit# o! the writ petition
and the locus standi o! the writ petitioner. .t was
held "# him that although di!!erent reasons have "een
recorded "# the mem"ers o! the $ivision %ench0 the
conclusion recorded "# them on the issue o!
maintaina"ilit# o! the writ petition was the same. .t
was !urther held that "oth the orders reveal a common
o"'ect i.e. the cancellation o! the allotment o! land
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C.A. No. 2143 of 2007 5
made in !avour o! the appellant-.nstitute. The learned
=udge has !urther clari!ied that a process o! auction
"# necessar# implication re1uires invitation to all
eligi"le prospective allottees through pu"lic notice
which will "e in con!ormit# with the constitutional
philosoph# under 5rticle 14 o! the Constitution o!
.ndia. &aving clari!ied in the a!oresaid terms0 the
learned =udge dismissed "oth the applications.
*. The correctness o! "oth the separate orders dated
14.02.2005 delivered "# the $ivision %ench and the
order dated 26.4.2006 o! the learned nominated =udge
hearing Civil )isc. Nos. 5016 and 61*+ o! 2005 are
under challenge in this appeal !iled "# the
appellant-.nstitute0 raising certain su"stantial
1uestions o! law.
/. .t was contended "# )r. Nidhesh ?upta0 the learned
senior counsel !or the appellant-.nstitute that the
learned nominated =udge has erred in not appreciating
the separate orders passed "# the two learned =udges
o! the $ivision %ench o! the &igh Court0 who have
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C.A. No. 2143 of 2007 6
given separate and distinct orders0 which are
a"solutel# con!licting in nature and had no
commonalit# at all. The learned =udge has !ailed to
appreciate that even the @post 'udgment scriptA0 one
o! the learned 'udge has clearl# spelt out the
di!!erences o! opinion "etween the two learned =udges
and on this "asis alone the matter ought to have "een
re!erred to a larger "ench.
. .t was !urther contended that the &igh Court ought
to have noticed that the land involved in this appeal
had "een allotted to the appellant-.nstitute a!ter
proper scrutin# and on the pu"lished and noti!ied
rates o! the land with a condition !or speci!ic uti-
liBation o! the land on lease hold "asis and that none
o! the town planning was a!!ected "# the allotment o!
land in 1uestion in !avour o! the appellant-.nstitute
since the area o! land in 1uestion is situated in the
institutional area where educational institutions are
!unctioning.
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C.A. No. 2143 of 2007 7
10. .t was !urther contended that the &igh Court has
gravel# erred in not dismissing the writ petition on
the "asis o! lac; o! locus standi o! the writ peti-
tioner who has !iled the writ petition !or personal
interest !or the reason that a residential site was
not allotted to him "# the 5dministration o! 6nion
Territor# o! Chandigarh.
11. The &igh Court has !urther erred in holding that
the appellants are in!luential persons0 there!ore0 the
land was allotted to them0 although no "asis whatso-
ever has "een shown in the impugned 'udgments.
12. The &igh Court has erred in not appreciating that
the allotment o! land in !avour o! the appellant-.n-
stitute was made as per regular procedure adopted and
"eing !ollowed "# 5dministration o! 6nion Territor# o!
Chandigarh !or the last more than 50 #ears and there
was no deviation whatsoever !rom the said procedure in
allotting the land in !avour o! the appellant-.nsti-
tute which is also non-pro!ita"le institute.
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C.A. No. 2143 of 2007 8
1+. .t is !urther contended that the land is not
auctioned "# the Chandigarh 5dministration "ut it has
allotted it to 1uali!ied persons8institutions on the
"asis o! the social and economic needs o! the cit# and
societ#. :urther0 the allotment o! land !or the
purposes o! esta"lishing educational institutions has
restrictions on the trans!er as well as usage and
there!ore0 it is di!!erent !rom the general land rates
2viz. commercial and residential3 which have no such
restrictions and are !reel# mar;eta"le.
14. .t is su"mitted that the land was allotted with
certain conditions0 2a3 on leasehold "asis initiall#
!or ++ #ears 2"3 non trans!era"le directl# or
indirectl# and 2c3 usage was onl# !or law institute.
The appellant-.nstitute deposited 25C o! the lease
amount with the administration o! 6nion Territor#
where upon the letter o! allotment dated 22.01.2004 in
respect o! the land in 1uestion was issued in !avour
o! the appellant-.nstitute.
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15. .t is !urther su"mitted "# the learned senior
counsel that the writ petition du""ed as a Pu"lic
.nterest >itigation !iled "# the respondent No. 1 is
!rivolous0 malicious and illegal as it does not
disclose the source o! in!ormation.
16. <n the other hand0 it is contended "# the learned
counsel on "ehal! o! the !irst respondent that the
respondent is a dedicated social wor;er having deep
concern !or the laws o! land.
1*. .t is !urther contented that the appellants have
managed to get the allotment o! land which is contrar#
to the polic# o! the 6nion Territor# o! Chandigarh0
the laws laid down "# this Court in relation to the
management o! pu"lic propert# and is in the teeth o!
5rticle 14 o! the Constitution o! .ndia.
1/. The respondents have !urther contended that the
said allotted landAs mar;et value is worth more than
7s.508- crores "ut0 was granted "# wa# o! lease to the
appellant-.nstitute !or an amount o! 7s.2.55 crores
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C.A. No. 2143 of 2007 10
onl#0 which amounts to con!erring largesse upon them
which is not permissi"le in law and has caused huge
loss to the pu"lic e9che1uer.
1. .t has "een !urther contended that according to
the rules !or allotment o! land in !avour o! schools
and other educational institutions0 no land can "e
allotted to an# institute without an advertisement and
inviting applications !rom the eligi"le persons.
20. <n the "asis o! the a!oresaid rival legal
contentions urged on "ehal! o! "oth the parties0 the
!ollowing points would arise !or our consideration,
"#$ Whether the writ petition !iled in the
pu"lic interest is maintaina"le or not and
whether the writ petitioner has locus standi
to !ile the writ petitionD
"##$ Whether the separate "ut concurring
orders passed "# the $ivision %ench o! the
&igh Court which were concurred "# the
nominated third =udge are legal and valid or
whether the same re1uires inter!erence "#
this CourtD
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C.A. No. 2143 of 2007 11
"###$ Whether the allotment order o! land
made in !avour o! the appellant-.nstitute is
in violation o! 5rticle 14 o! the
Constitution o! .ndia along with the
applica"ilit# o! the E5llotment o! land to
Fducational .nstitutions 24chools307ules etc.
on a >ease-hold "asis in Chandigarh 4cheme0
16GD
"#%$ What <rderD
A&s'() *+ P+#&* N+.1
21. We will !irst consider and answer the 1uestion o!
maintaina"ilit# o! the Writ Petition and locus standi
o! the writ petitioner0 the respondent No. 1 herein
who has !iled the writ petition.
22. The propert# in 1uestion "elongs to the 6nion
Territor# o! Chandigarh 5dministration. 6nder our
constitutional philosoph#0 it is a pu"lic propert# and
there!ore0 "elongs to the people. &ence0 the 6nion
Territor# o! Chandigarh 5dministration is the trustee
o! the land whose dut# is to see that the propert# is
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C.A. No. 2143 of 2007 12
allotted in !avour o! eligi"le persons "# !ollowing
the procedure laid down "# the Chandigarh
5dministration0 and the same should not "e allowed to
"e s1uandered or sold awa# "# it at a throw awa# price
as it has "een done in the instant case as pointed out
"# its 5udit $epartment itsel! that there is a clear
loss o! a"out 7s.1+ crores to the pu"lic e9che1uer.
2+. .t has also come to our notice that the settlement
o! the land in 1uestion in !avour o! the appellant-
.nstitute was done within a !ew da#s without !ollowing
the mandator# procedure !or the allotment o! land. We
do not dou"t the intention o! the appellants to set up
the law institute0 however0 their private interest is
pitted against the pu"lic interest. The loss to the
pu"lic e9che1uer could have "een easil# avoided had
the land in 1uestion "een settled "# wa# o! pu"lic
auction inviting applications !rom eligi"le persons.
24. :urther0 as stated in the writ petition0 the
petitioner is a resident o! 4tate o! Pun'a" and is
also an .ncome Ta9 Pa#ee. .t has neither "een shown
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C.A. No. 2143 of 2007 13
nor proved "# the appellants that he is a 2i3
meddlesome interloper 2ii3 that he is acting under
malafide intention or 2iii3 that he has "een set up "#
someone !or settling his personal scores with
Chandigarh 5dministration or the allottee. $ealing
with the 1uestion o! locus standi o! the writ
petitioner0 we would li;e to re!er to certain
decisions o! this Court to hold that the writ petition
!iled "# the !irst respondent is a pu"lic interest
litigation to protect pu"lic interest. .n the case o!
Fertilizer Corporation Kamgar Union (Regd.) Sindri &
Ors. v. Union of India & Ors.
1
, the constitutional
%ench o! this Court has held as under,-
E2-+0. HHWhere does the citiBen stand0
in the conte9t o! the democrac# o! 'udi-
cial remedies0 a"sent an om"udsmanD .n
the !ace o! 2rare0 #et real3 misuse o!
administrative power to pla# duc;s and
dra;es with the pu"lic e9che1uer0 espe-
ciall# where developmental e9pansion nec-
essaril# involves astronomical e9pendi-
ture and concomitant corruption0 do pu"-
lic "odies en'o# immunit# !rom challenge
save through the post-mortem o! parlia-
mentar# organs. What is the role o! the
'udicial process0 read in the light o!
1
AIR 1981 SC 344, (1981) 1 SCC 568
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C.A. No. 2143 of 2007 14
the d#namics o! legal control and corpo-
rate autonom#D
III III III

4*. HHNevertheless0 the "road parameters
o! !airness in administration0 "ona !ides
in action0 and the !undamental rules o!
reasona"le management o! pu"lic "usiness0
i! "reached0 will "ecome 'usticia"le.
4/. .! a citiBen is no more than a wa#-
!arer or o!!icious intervener without an#
interest or concern "e#ond what "elongs
to an# one o! the 660 million people o!
this countr#0 the door o! the court will
not "e a'ar !or him. %ut0 i! he "elongs
to an organisation which has special in-
terest in the su"'ect-matter0 i! he has
some concern deeper than that o! a "us#-
"od#0 he cannot "e told o!! at the gates0
although whether the issue raised "# him
is 'usticia"le ma# still remain to "e
considered. .0 there!ore0 ta;e the view
that the present petition would clearl#
have "een permissi"le under 5rticle 226.G
(emphasis supplied3
4imilarl#0 in the case o! S.P. Gpta v. Union of
India and !nr.
2
, this Court has categoricall# laid down
the law in relation to locus standi as under ,-
E1/HHwhenever there is a pu"lic wrong or
pu"lic in'ur# caused "# an act or omis-
sion o! the 4tate or a pu"lic authorit#
2
(1981) Supp SCC 87
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C.A. No. 2143 of 2007 15
which is contrar# to the Constitution or
the law0 an# mem"er o! the pu"lic acting
"ona !ide and having su!!icient interest
can maintain an action !or redressal o!
such pu"lic wrong or pu"lic in'ur#. The
strict rule o! standing which insists
that onl# a person who has su!!ered a
speci!ic legal in'ur# can maintain an ac-
tion !or 'udicial redress is rela9ed and
a "road rule is evolved which gives
standing to an# mem"er o! the pu"lic who
is not a mere "us# "od# or a meddlesome
interloper "ut who has su!!icient inter-
est in the proceeding. There can "e no
dou"t that the ris; o! legal action
against the 4tate or a pu"lic authorit#
"# an# citiBen will induce the 4tate or
such pu"lic authorit# to act with greater
responsi"ilit# and care there"# improving
the administration o! 'usticeHH.t is also
necessar# to point out that i! no one can
have standing to maintain an action !or
'udicial redress in respect o! a pu"lic
wrong or pu"lic in'ur#0 not onl# will the
cause o! legalit# su!!er "ut the people
not having an# 'udicial remed# to redress
such pu"lic wrong or pu"lic in'ur# ma#
turn to the street and in that process0
the rule o! law will "e seriousl# im-
pairedH.
1. There is also another reason wh# the
7ule o! locus standi needs to "e li"er-
alised. Toda# we !ind that law is "eing
increasingl# used as a device o! organ-
ised social action !or the purpose o!
"ringing a"out socio-economic change. The
tas; o! national reconstruction upon
which we are engaged has "rought a"out
enormous increase in developmental activ-
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C.A. No. 2143 of 2007 16
ities and law is "eing utilised !or the
purpose o! development0 social and eco-
nomic. .t is creating more and more a new
categor# o! rights in !avour o! large
sections o! people and imposing a new
categor# o! duties on the 4tate and the
pu"lic o!!icials with a view to reaching
social 'ustice to the common manHH. .n
other words0 the dut# is one which is not
correlative to an# individual rights. Now
i! "reach o! such pu"lic dut# were al-
lowed to go unredressed "ecause there is
no one who has received a speci!ic legal
in'ur# or who was entitled to participate
in the proceedings pertaining to the de-
cision relating to such pu"lic dut#0 the
!ailure to per!orm such pu"lic dut# would
go unchec;ed and it would promote disre-
spect !or the rule o! law. .t would also
open the door !or corruption and ine!!i-
cienc# "ecause there would "e no chec; on
e9ercise o! pu"lic power e9cept what ma#
"e provided "# the political machiner#0
which at "est would "e a"le to e9ercise
onl# a limited control and at worst0
might "ecome a participant in misuse or
a"use o! power. .t would also ma;e the
new social collective rights and inter-
ests created !or the "ene!it o! the de-
prived sections o! the communit# meaning-
less and ine!!ectual.
20. HHH.! pu"lic duties are to "e en-
!orced and social collective Edi!!usedG
rights and interests are to "e protected0
we have to utilise the initiative and
Beal o! pu"lic-minded persons and organi-
sations "# allowing them to move the
court and act !or a general or group in-
terest0 even though0 the# ma# not "e di-
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C.A. No. 2143 of 2007 17
rectl# in'ured in their own rights. .t is
!or this reason that in pu"lic interest
litigation J litigation underta;en !or
the purpose o! redressing pu"lic in'ur#0
en!orcing pu"lic dut#0 protecting social0
collective0 Edi!!usedG rights and inter-
ests or vindicating pu"lic interest0 an#
citiBen who is acting "ona !ide and who
has su!!icient interest has to "e ac-
corded standing. What is su!!icient in-
terest to give standing to a mem"er o!
the pu"lic would have to "e determined "#
the court in each individual case. .t is
not possi"le !or the court to la# down
an# hard and !ast rule or an# strait-
'ac;et !ormula !or the purpose o! de!in-
ing or delimiting Esu!!icient interestG.
.t has necessaril# to "e le!t to the dis-
cretion o! the courtHHH
III III III

2+. We would0 there!ore0 hold that an#
mem"er o! the pu"lic having sufficient
interest can maintain an action !or 'udi-
cial redress !or pu"lic in'ur# arising
!rom "reach o! pu"lic dut# or !rom viola-
tion o! some provision o! the Constitu-
tion or the law and see; en!orcement o!
such pu"lic dut# and o"servance o! such
constitutional or legal provisionHHG
2Fmphasis supplied3
:urther0 in the case o! "attara# $at%#i &%a'are v.
State of (a%aras%tra & Ors.
)
, this Court held that
Pu"lic .nterest >itigation is a weapon which has to "e
3
( 2005) 1 SCC 590
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C.A. No. 2143 of 2007 18
used with great care and circumspection. .t has to "e
used as an e!!ective weapon in the armour# o! law !or
delivering social 'ustice to citiBens. The aim o!
Pu"lic .nterest >itigation should "e to redress
genuine pu"lic wrong or pu"lic in'ur#.
25. .t is clear to us that the respondent No. 1-the
writ petitioner has !iled a bonafide writ petition and
he has the necessar# locus. There is an apparent
!avour shown "# the 6nion Territor# o! Chandigarh in
!avour o! the appellant-.nstitute which is a pro!it
ma;ing compan# and it has not shown to this Court that
the allotment o! land in its !avour is in accordance
with law. &ence0 we are o! the view that there is a
strong reason to hold that the writ petition is
maintaina"le in pu"lic interest. We completel# agree
with the views ta;en "# the &igh Court0 wherein it has
rightl# held that the writ petition is a Pu"lic
.nterest >itigation and not a Private .nterest
>itigation. The writ petition in 1uestion is the !irst
petition !iled "# the !irst respondent and his !irst
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C.A. No. 2143 of 2007 19
endeavor to ;noc; the doors o! the constitutional
court to protect the pu"lic interest "# issuing a writ
o! certiorar#.
26. The appellants have misera"l# !ailed to show the
malafide intention on the part o! the respondent No. 1
in !iling writ petition and we agree with the view o!
the then Chie! =ustice in his order who has held that
he is a pu"lic spirited person. The cause ventilated
"# him is de!initel# worth consideration and the
record o! the 55< 25udit3 su"mitted to the Chandigarh
5dministration proves the allegations made "# him.
:urther it is o"served that &is F9cellenc#0 the
?overnor o! Pun'a"-cum-5dministrator0 Chandigarh has
rightl# come to the conclusion in his decision that
the impugned allotment o! land in !avour o! the !irst
appellant-.nstitute re1uires ta;ing up o! corrective
steps. The 5dministration o! the 6nion Territor# o!
Chandigarh has con!erred largesse on the appellant-
.nstitute "# allotting land in its !avour !or
inade1uate consideration without !ollowing procedure.
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C.A. No. 2143 of 2007 20
There!ore0 we hold that the writ petition !iled "# the
!irst respondent is maintaina"le as the allotment o!
the land in 1uestion made in !avour o! the !irst
appellant-.nstitute is ar"itrar#0 illegal and the same
is in violation o! 5rticle 14 o! the Constitution.

A&s'() *+ P+#&* N+s. 2! 3 ,&- 4
2*. We have care!ull# considered and e9amined the
1uestion o! the legalit# o! the allotment order o! the
land made in !avour o! the appellant-.nstitute. .t is
su"mitted on "ehal! o! the !irst respondent that the
allotment o! pu"lic land at throw awa# price or at no
price to the private educational institutions with an
avowed o"'ect to serve the pu"lic interest is contrar#
to the theor# o! Echarita"le educationG that serve the
pious cause o! literac#. The a!orementioned legal
issue was visualiBed "# this Court and has lucidl#
laid down the law in the case o! Union of India & !nr.
v. *ain Sa+%a, $e' "el%i& !nr.
4
wherein the plea o!
charita"le intentions or philanthropic goal "ehind the
4
(1997) 1 SCC 164
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C.A. No. 2143 of 2007 21
esta"lishment o! private educational institution was
not accepted "# this Court0 holding that ,-

E11HHwe thin; it appropriate to o"serve
that it is high time the ?overnment re-
views the entire polic# relating to al-
lotment o! land to schools and other
charita"le institutions. Where the pu"lic
propert# is "eing given to such institu-
tions practicall# !ree0 stringent condi-
tions have to "e attached with respect to
the user o! the land and the manner in
which schools or other institutions es-
ta"lished thereon shall !unction. The
conditions imposed should "e consistent
with pu"lic interest and should alwa#s
stipulate that in case o! violation o!
an# o! those conditions0 the land shall
"e resumed "# the ?overnment. Not onl#
such conditions should "e stipulated "ut
constant monitoring should "e done to en-
sure that those conditions are "eing o"-
served in practice. While we cannot sa#
an#thing a"out the particular school run
"# the respondent0 it is common ;nowledge
that some o! the schools are "eing run on
totall# commercial lines. &uge amounts
are "eing charged "# wa# o! donations and
!ees. The 1uestion is whether there is
an# 'usti!ication !or allotting land at
throw-awa# prices to such institutions.
The allotment o! land "elonging to the
people at practicall# no price is meant
!or serving the pu"lic interest0 i.e.0
spread o! education or other charita"le
purposesK it is not meant to ena"le the
allottees to ma;e mone# or pro!iteer with
the aid o! pu"lic propert#. We are sure
that the ?overnment would ta;e necessar#
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C.A. No. 2143 of 2007 22
measures in this "ehal! in the light o!
the o"servations contained herein.G
2/. :urther0 in another case0 this Court set aside the
allotments o! land made "# the allotment committee
even though most o! the allottees had constructed the
"uildings0 "ecause0 the allotment Committee had not
!ollowed an# rational or reasona"le criteria !or
inviting the applications !or the allotment o! land
through an open advertisement. 7eliance is placed on
the decision o! this Court in $e' India P+li, S,%ool
& Ors. v. -U"! and Ors.
5
, which states as under,-
E4HHHThere!ore0 the pu"lic authorities
are re1uired to ma;e necessar# speci!ic
regulations or valid guidelines to e9er-
cise their discretionar# powersK other-
wise0 the salutar# procedure would "e "#
pu"lic auction. The $ivision %ench0
there!ore0 has rightl# pointed out that
in the a"sence o! such statutor# regula-
tions e9ercise o! discretionar# power to
allot sites to private institutions or
persons was not correct in law.G

2. :urther0 we have to re!er to the case o! !.%il
/%arti0a Up+%o.ta Congress v. State of (.P. & Ors.
1
,
5
(1996) 5 SCC 510
6
(2011) 5 SCC 29
Page 23
C.A. No. 2143 of 2007 23
wherein this Court has succinctl# laid down the law
a!ter considering catena o! cases o! this Court with
regard to allotment o! pu"lic propert# as under ,
E50. :or achieving the goals o! 'ustice
and e1ualit# set out in the Pream"le0 the
4tate and its agencies8instrumentalities
have to !unction through political
entities and o!!icers8o!!icials at
di!!erent levels. The laws enacted "#
Parliament and the 4tate >egislatures
"estow upon them powers !or e!!ective
implementation o! the laws enacted !or
creation o! an egalitarian societ#. The
e9ercise o! power "# political entities
and o!!icers8o!!icials !or providing
di!!erent ;inds o! services and "ene!its
to the people alwa#s has an element o!
discretion0 which is re1uired to "e used
in larger pu"lic interest and !or pu"lic
goodHH.n our constitutional structure0 no
!unctionar# o! the 4tate or pu"lic
authorit# has an a"solute or un!ettered
discretion. The ver# idea o! un!ettered
discretion is totall# incompati"le with
the doctrine o! e1ualit# enshrined in the
Constitution and is an antithesis to the
concept o! the rule o! law.
III III III
54. .n Breen v. Amalgamated Engg. Union0
>ord $enning )7 said, 2L% p. 100 %-C3
@H The discretion o! a statutor#
"od# is never un!ettered. .t is a
discretion which is to "e e9ercised
according to law. That means at
Page 24
C.A. No. 2143 of 2007 24
least this, the statutor# "od# must
"e guided "# relevant
considerations and not "#
irrelevant. .! its decision is
in!luenced "# e9traneous
considerations which it ought not
to have ta;en into account0 then
the decision cannot stand. No
matter that the statutor# "od# ma#
have acted in good !aithK
nevertheless the decision will "e
set aside. That is esta"lished "#
Padfield v. Minister of
Agriculture, Fisheries and Food
which is a landmar; in modern
administrative law.A
55. .n Laer Air!a"s Ltd. v. #eptt. of
$rade >ord $enning discussed prerogative
o! the )inister to give directions to
Civil 5viation 5uthorities overruling the
speci!ic provisions in the statute in the
time o! war and said, 2L% p. *050 :-?3
@4eeing that the prerogative is a
discretionar# power to "e
e9ercised !or the pu"lic good0 it
!ollows that its e9ercise can "e
e9amined "# the courts 'ust as an#
other discretionar# power which is
vested in the e9ecutive.A
56. This Court has long ago discarded the
theor# o! un!ettered discretion. .n %.&.
'aisinghani v. Union of (ndia0 7amaswami0
=. emphasised that a"sence o! ar"itrar#
power is the !oundation o! a s#stem
governed "# rule o! law and o"served, 25.7
p. 14+40 para 143
Page 25
C.A. No. 2143 of 2007 25
)*+. .n this conte9t it is
important to emphasise that the
a"sence o! ar"itrar# power is the
!irst essential o! the rule o! law
upon which our whole constitutional
s#stem is "ased. .n a s#stem
governed "# rule o! law0
discretion0 when con!erred upon
e9ecutive authorities0 must "e
con!ined within clearl# de!ined
limits. The rule o! law !rom this
point o! view means that decisions
should "e made "# the application
o! ;nown principles and rules and0
in general0 such decisions should
"e predicta"le and the citiBen
should ;now where he is. .! a
decision is ta;en without an#
principle or without an# rule it is
unpredicta"le and such a decision
is the antithesis o! a decision
ta;en in accordance with the rule
o! lawHH..A
III III III
5. .n ,asturi Lal Lashmi -edd" v. %tate
of '.,0 %hagwati =. spea;ing !or the Court
o"served, 24CC pp. 1+-140 para 143
)*+. Where an# governmental action
!ails to satis!# the test o!
reasona"leness and pu"lic interest
discussed a"ove and is !ound to "e
wanting in the 1ualit# o!
reasona"leness or lac;ing in the
element o! pu"lic interest0 it would
"e lia"le to "e struc; down as
invalidHHH.A
Page 26
C.A. No. 2143 of 2007 26
61. The Court also re!erred to the reasons
recorded in the orders passed "# the
)inister !or award o! dealership o! petrol
pumps and gas agencies and o"served,
2/ommon /ause case0 4CC p. 5540 para 243
@24. H While 5rticle 14 permits a
reasona"le classi!ication having a
rational ne9us to the o"'ective
sought to "e achieved0 it does not
permit the power to pic; and choose
ar"itraril# out o! several persons
!alling in the same categor#. 5
transparent and o"'ective
criteria8procedure has to "e evolved
so that the choice among the mem"ers
"elonging to the same class or
categor# is "ased on reason0 !air
pla# and non-ar"itrariness. .t is
essential to la# down as a matter o!
polic# as to how pre!erences would
"e assigned "etween two persons
!alling in the same categor#H.A
62. .n %hrileha 0id"arthi v. %tate of
U.P. the Court une1uivocall# re'ected the
argument "ased on the theor# o! a"solute
discretion o! the administrative
authorities and immunit# o! their action
!rom 'udicial review and o"served, 24CC
pp. 2+60 2+-403
)12. .t can no longer "e dou"ted
at this point o! time that 5rticle
14 o! the Constitution o! .ndia
applies also to matters o!
governmental polic# and i! the
polic# or an# action o! the
?overnment0 even in contractual
matters0 !ails to satis!# the test
Page 27
C.A. No. 2143 of 2007 27
o! reasona"leness0 it would "e
unconstitutionalHH.G

.n the light o! the a"ove mentioned cases0 we have to
record our !inding that the discretionar# power con-
!erred upon the pu"lic authorities to carr# out the
necessar# 7egulations !or allotting land !or the pur-
pose o! constructing a pu"lic educational institution
should not "e misused.
+0. We !urther hold that the !undamental right to
esta"lish and run an educational institution in terms
o! 5rticle 1 2132g3 o! the Constitution is su"'ect to
reasona"le restrictions under 5rticle 1263 o! the
Constitution o! .ndia. There!ore0 the 4tate is within
its competence to prohi"it EcommercialiBation o!
educationG.
+1. .n (odern S,%ool v. Union of India and Ot%ers
2
2supra30 this Court has held thus ,-
E*2. 4o !ar as allotment o! land "# the
$elhi $evelopment 5uthorit# is con-
cerned0 su!!ice it to point out that the
same has no "earing on the en!orcement
7
(2004) 5 SCC 583
Page 28
C.A. No. 2143 of 2007 28
o! the provisions o! the 5ct and the
7ules !ramed thereunder "ut indisputa"l#
the institutions are "ound "# the terms
and conditions o! allotment. .n the
event such terms and conditions o! al-
lotment have "een violated "# the allot-
tees0 the appropriate statutor# authori-
ties would "e at li"ert# to ta;e appro-
priate step as is permissi"le in law.G
+2. We0 there!ore0 disregard the plea o! charita"le
intention or philanthropic goal "ehind the
esta"lishment o! the appellant educational institution
as the esta"lishment o! the same does not serve an#
pu"lic interest and we cannot allow the allottee to
ma;e mone# or pro!iteer with the aid o! the pu"lic
propert#.
++. :urther0 on a care!ul evaluation o! the
statutor# o"'ect "ehind clause 1/ o! the E5llotment o!
>and to Fducational .nstitutions 24chools37ules Ftc.
on >ease &old "asis in Chandigarh 4cheme0 16G no
s#stematic e9ercise has "een underta;en "# the
5dministration o! Chandigarh to identi!# the needs o!
di!!erent ;inds o! pro!essional institutions re1uired
to "e esta"lished in Chandigarh. We thus concur with
Page 29
C.A. No. 2143 of 2007 29
the reasoning o! the &igh Court in the impugned orders
that the 4creening Committee comprising o! senior and
responsi"le !unctionaries allotted the institutional
sites in !avour o! the allottee without !ollowing an#
o"'ective criteria and polic#. The 4creening Committee
acted in a manner which is contrar# to the principles
laid down "# this Court in the 'udgments cited a"ove
in allotting the land in 1uestion in !avour o! the
!irst appellant. We0 there!ore0 conclude that the &igh
Court has rightl# held that the polic# !ollowed "# the
Chandigarh 5dministration where the allotment o! land
was done in !avour o! the appellant-.nstitute without
giving an# pu"lic notice and in the a"sence o! a
transparent polic# "ased upon o"'ective criteria and
without even e9amining the !act that the 6nion
Territor# o! Chandigarh is alread# under e9treme
pressure o! over population and even in the case o!
allotment o! school sites "# ma;ing no attempt to
en!orce clause 1/ o! the 4cheme0 160 there"#
con!ining the said provision merel# to the statute
"oo;0 is ar"itrar#0 unreasona"le and un'ust and is
Page 30
C.A. No. 2143 of 2007 30
opposed to the provisions o! 5rticle 14 o! the
Constitution o! .ndia.
+4. We now come to the opinion e9pressed "# the then
Chie! 'ustice in his order which was concurred "# the
nominated =udge hearing the Civil )isc. 5pplications
that although di!!erent reasons have "een recorded "#
the mem"ers o! the $ivision %ench in their order who
have disposed o! CWP No.616 o! 20040 the conclusion
arrived at "# them was the same. There!ore0 the order
passed "# the then Chie! =ustice cannot "e said to
have rendered a di!!erent opinion so as to attract the
applica"ilit# o! 7ule +1 o! Chapter 40 para :0 o! the
&igh Court 7ules and <rders0 read with clause 26 o!
the >etters Patent.
+5. 5 perusal o! the directions contained in the
orders o! the &igh Court reveals a common e!!ect0 i.e.
the allotment o! the institutional plot made in !avour
o! the appellant-.nstitute stands cancelled as it did
not con!orm to the constitutional philosoph# enshrined
in 5rticle 14 o! the Constitution o! .ndia. This was
Page 31
C.A. No. 2143 of 2007 31
also conceded "# the learned nominated =udge o! the
&igh Court hearing the Civil )isc. No.5016 o! 2005 and
Civil )isc. No. 61*+ o! 2005. Thus0 there appears to
"e a"solutel# no point o! di!!erence or divergence
"etween the then Chie! 'ustice and the companion
puisne =udge0 who have issued directions to the
5dministration o! the 6nion Territor# o! Chandigarh.
.t has rightl# "een pointed out "# the nominated =udge
that there ma# apparentl# seem to "e a di!!erence in
the thought process and also the relative rigour o!
the e9pressions used "# "oth the learned =udges0 #et0
it has not "een possi"le to conclude that there was
an# divergence in the directions recorded in their
separate views.
+6. We thus hold that the impugned order passed "#
the learned puisne =udge0 which was concurred "# the
then Chie! =ustice "# his separate order and the order
o! the third nominated =udge holding that there is no
di!!erence o! opinion in the orders o! the $ivision
Page 32
C.A. No. 2143 of 2007 32
%ench are legal and valid and do not re1uire an#
inter!erence "# this Court.
+*. .t is needless to state that certain
o"servations made in the impugned orders against some
o! the appellants and the respondents are totall#
unwarranted and the same are e9punged.
+/. .n view o! the !oregoing reasons0 we do not !ind
an# reason to inter!ere with the impugned orders in
e9ercise o! this CourtAs appellate 'urisdiction. The
appeal is accordingl# dismissed. The order dated
16.04.200* granting sta# shall stand vacated.
J.
.SUDHANSU J/OTI MU0HOPADHA/A1
J.
.V. OPALA OWDA1
N(' D(23#!
S(4*(56() 17! 2014