SANJAY CHAUHAN V. UNION OF INDIA

CWP/3943/2015

AI Insights

The case revolves around the decision by the Government of Himachal Pradesh to include Dharamshala and exclude Shimla from the list of potential Smart Cities under the Smart Cities Mission. Sanjay Chauhan, the elected Mayor of Shimla, challenged this decision, alleging that it was influenced by political motives and did not adhere to the established criteria and guidelines. The court examined the decision-making process, the roles of various officials, and the adherence to procedural norms. It was found that the process was not only non-transparent but also lacked a proper evaluation of the cities based on the prescribed criteria. The court's decision emphasized the need for fairness, reasonableness, and adherence to the rule of law in administrative actions.

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 744102 (HC-HIMACHAL_PRADESH)
• Appeal Type: Others
• Pronouncement Date: 17-12-2015
• Assessment Year: misc
• Other Referred Cases: Guruvayoor Devaswom Managing Committee v. C.K. Rajan, National Federation case, R v. Department of Transport, ex p. Presvac Engineering Ltd., Bandhua Mukti Morcha v. Union of India, Janata Dal v. H. S. Chowdhary, Narmada Bachao Andolan v. Union of India, S.R. Tewari v. Union of India, State of Uttaranchal v. Balwant Singh Chaufal, Maharashtra Land Development Corpn. v. State of Maharashtra, Common Cause v. Union of India, Dattaraj Nathuji Thaware v. State of Maharashtra, Kansingh Kalusingh Thakore v. Rabari Maganbhai Vashrambhai, East Coast Railway v. Mahadev Appa Rao, Punjab SEB Ltd. v. Zora Singh, Jayrajbhai Jayantibhai Patel v. Anilbhai Nathubhai Patel, Chandrika Jha v. State of Bihar, State of U.P. v. Renusagar Power Co.
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: ASHOK SHARMA; NIPUN SHARMA; SHRAWAN DOGRA; ROMESH VERMA; ANUP RATTAN; J K VERMA; GAGAN PRADEEP BAL; AMIT SINGH CHANDEL
• Assessee Lawyers: SANJEEV BHUSHAN; ABHILASHA KAUNDAL
• Keywords: Dharamshala; Municipal Corporation; Urban development; Smart Cities Mission; Shimla

Judgement Text

" IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 3943/2015 Reserved on: 3.12.2015 Decided on December 17, 2015 Sanjay Chauhan …………….Petitioner Versus Union of India and others ……….Respondents Coram Hon’ble Mr. Justice Rajiv Sharma, Judge Hon'ble Mr. Justice Sureshwar Thakur, Judge Whether approved for reporting?1 For the Petitioner : Mr. Sanjeev Bhushan, Senior Advocate with Ms. Abhilasha Kaundal, Advocate. For the Respondents : Mr. Ashok Sharma, Assistant Solicitor General of India with Mr. Nipun Sharma, Advocate, for respondents No. 1 and 2. Mr. Shrawan Dogra, Advocate General with Mr. Romesh Verma and Mr. Anup Rattan, Additional Advocates General and Mr. J.K. Verma, Deputy Advocate General, for respondents No. 3 and 4. Mr. Gagan Pradeep S. Bal and Mr. Amit Singh Chandel, Advocates, for respondent No. 6. Per Rajiv Sharma, Judge The petitioner is an elected Mayor of Municipal Corporation, Shimla. He has filed the present petition assailing the decision whereby town of Dharamshala has been included and city of Shimla has been excluded from the list of potential Smart Cities. The State of Himachal Pradesh has been allocated one city to be developed as a Smart City. The Municipal Corporation, Shimla has presented a fair assessment against each 1 Whether the reporters of the local papers may be allowed to see the judgment? 2 criterion of Form 2 of annexure 3 and claimed 85 points out of a total of 100 points. However, for ulterior motives and political considerations, Dharamshala was included in the list of Smart Cities. It is also alleged that respondent No. 4, Additional Chief Secretary (UD) has acted under political influence. Dharamshala Legislative Assembly is represented by the Minister of Urban Development, therefore, respondent No. 4 has acted under his dictates. Respondent No. 6 Municipal Council, Dharamshala (now, a Corporation), has claimed 87.5 points. Representations were made vide annexure P-3 (collectively). Recommendations made in favour of respondent No. 6 are bad in law. Respondent No. 6 could not get more than 50 points. Shimla city is the only city in the State of Himachal Pradesh identified under Jawahar Lal Nehru National Urban Renewal Mission (in short ‘JnNURM’). Shimla is a world famous city with a population of 2,06,000 and a floating population of around 70-75,000. It is thronged by 40 Lakh tourists every year. Budget of Municipal Corporation, Shimla is `224.00 crores. Petitioner, being Mayor, was not included in the decision making process in the meetings held on 15.7.2015 and 29.7.2015. 2. Respondents No.1 and 2 have filed detailed reply. According to them, decision of the respondents to include Dharamshala town was in accordance with law. Shortlisting of 3 potential Smart Cities is to be done by the concerned States/UTs as per the criteria laid down. State Government has sent the proposal for consideration of Dharamshala as a potential smart city from Himachal Pradesh and same was received in the Ministry of Urban Development vide communications dated 30.7.2015 and 31.7.2015 alongwith proposal on the prescribed format. Vide office memorandum No. K-15016/112/2015-SC-1 dated 14th July, 2015, Ministry of Urban Development (in short ‘MoUD’) conveyed approval of the competent authority for nomination of the officers as representatives of MoUD in the respective State Level High Powered Steering Committees (in short ‘HPSC’) for Smart Cities Mission in terms of para 13.2 of the Smart City Guidelines. Copy of letter dated 14.7.2015 is annexure R-2. Joint Secretary (UD) was nominated as representative of MoUD in the State Level High Powered Steering Committee (HPSC) for Himachal Pradesh. 3. Respondents No. 3 and 4 have also filed a detailed reply. According to the averments made in the reply, one city has been allocated for State of Himachal Pradesh for inclusion in the list of Smart Cities by the Government of India. Criteria laid down are to be met by the potential Smart Cities to succeed in the first round of competition. Information sent by the Urban Local Bodies (in short ‘ULBs’) in the prescribed Form was to be evaluated by the State Mission Director and evaluation was to be placed before 4 the HPSC. State Government was required to send the names of selected cities after first stage of competition. Government of Himachal Pradesh has notified the constitution of HPSC vide Notification dated 25.6.2015. First meeting of the Committee was held on 15.7.2015. It was decided to invite proposals from all the Urban Local Bodies (in short ‘ULBs’) of the State on the format prescribed by the Government of India for inter-State City level competition. Thereafter, 14 ULBs submitted their score cards on the Form prescribed by the Government of India. It was received by the Government of Himachal Pradesh from the Director, Urban Development Department. Score cards were prepared. It was a self-assessment on the basis of the criteria laid down by the MoUD. The HPSC was constituted for implementation of Smart Cities Mission, which held its meeting on 29.7.2015. It examined the proposals received from ULBs and scores claimed by each of the ULB, and agreed that Dharamshala, having highest score of 87.5 points, may be selected to be covered under the Smart Cities Mission. Major reasons for non-selection of Shimla are non- completion of the projects sanctioned under JnNURM for the period 2007-2012 and also that Shimla town has been sanctioned Atal Mission for Rejuvenation and Urban Transformation (in short ‘AMRUT’) scheme. It is an umbrella scheme having four components, two for mission city i.e. Urban Infrastructure and 5 Governance (UIG) and Basic Services for Urban Poor (BSUP), and two components for other cities i.e. Urban Infrastructure Development Scheme for Small & Medium Towns (UIDSSMT) and Integrated Housing and Slum Development Programme (IHSDP). Under UIDSSMT, Dharamshala utilized `1.91 Crores against 1.90 Crores. In Shimla, Water Supply Schemes, Sewerage Schemes, e- Governance Schemes, Solid Waste Management, Sanitary Land Fill Projects and Ashiana I and II for urban poor housing were not completed under JnNURM scheme by Municipal Corporation, Shimla. The details are given in para-8 of the reply at page 89 of the paper-book. 4. Department has placed score cards before the meeting of the HPSC held on 29.7.2015 convened under the Chairmanship of the Chief Secretary. Minutes of the second meeting of HPSC are annexed as Annexure R-4/2. Smart City was recommended by the HPSC after exhausting all the channels, strictly following guidelines and as per self-assessment report submitted by the ULBs including respondent No. 5 and respondent No. 6. It is denied that data was fudged. Recommendations were sent to the Government of India as per record. Codal formalities were completed before sending case to the Government of India on 30.7.2015. Wild allegations have been made since petitioner is a sitting Mayor of Municipal Corporation, Shimla. Shimla town has 6 already been included in the AMRUT scheme. Proper transparency was maintained by the Department while placing recommendations before the HPSC. It is admitted that the population of Shimla town is 2.00 Lakh excluding floating population. Score card in respect of Dharamshala and Shimla have been placed on record as Annexure R-4/4 and Annexure R-4/5, respectively. 5. Respondent No.5 has also filed its reply. It is admitted that the respondent-Corporation has participated in the said process for inclusion of Shimla in the list of Smart Cities by sending prescribed format. 6. Respondent No. 6 has filed a detailed reply to the petition. According to the averments made in the reply, petitioner has no locus standi to file the petition. It is a ‘political interest litigation’ rather than a ‘Public Interest Litigation’. It has been filed only to gain political mileage. Respondent No. 6 has scored 87.5 points. There was no concern of Minister of Urban Development in the decision making process. As far as self- assessment is concerned, Dharamshala is the seat of His Holiness Dalai Lama. Points have been claimed on the basis of criteria laid down. Thus, it can not be termed as ‘fudged’ data. Respondent No. 6 has been included in the scheme i.e. UIDSSMT. It was denied that respondent No. 6 did not have its monthly e-newsletter 7 whereas the e-newsletter was published by the answering respondent before the commencement of selection of Smart City i.e. 1.7.2015. Respondent No. 6 was entitled to 5 points as per clause 7 of the scheme instead of zero point. According to Sr. No. 11 of the scheme, Municipal Corporation, Shimla could not get more than 7.5 points but it has been claimed 10 points wrongly. About 30.00 Lakh tourists visit Dharamshala every year, out of which 30% are foreign tourists. Important offices are situated at Dharamshala. 7. Mr. Sanjeev Bhushan, learned Senior Advocate with Ms. Abhilasha Kaundal, Advocate has vehemently argued that the decision to include Dharamshala in the list of potential Smart Cities is contrary to the letter and spirit of Mission Statement and Guidelines issued for selection of Smart Cities. He then contended that the petitioner being Mayor of the Municipal Corporation, Shimla was also not called in the meetings held on 15.7.2015 and 29.7.2015. He further contended that Shimla is having all the infrastructure and wherewithal to be included in the list of potential Smart Cities vis-à-vis Dharamshala. He has also contended that the decision is arbitrary, capricious, unfair and it lacks bonafide. Moreover, No reasons have been assigned in the proceedings of the meeting held on 29.7.2015. 8 8. Mr. Shrawan Dogra, learned Advocate General, appearing for the respondents-State and Mr. Gagan Pradeep S. Bal Advocate, appearing on behalf of respondent No. 6, have supported the decision dated 29.7.2015. 9. Government of India has issued the Mission Statement and Guidelines for ‘Smart Cities’. The objective is to promote cities that provide core infrastructure and give a decent quality of life to its citizens, a clean and sustainable environment and application of smart solutions. The focus is on sustainable and inclusive development and the idea is to look at compact areas, create a replicable model which will act like a light house to other aspiring cities. The Smart Cities Mission of the Government is a bold, new initiative. It is meant to set examples that can be replicated both within and outside the Smart City, catalyzing the creation of similar Smart Cities in various regions and parts of the Country. The core infrastructure elements in a Smart City would include: i) adequate water supply, ii) assured electricity supply, iii) sanitation, including solid waste management, iv) efficient urban mobility and public transport, v) affordable housing, especially for the poor, vi) robust IT connectivity and digitalization, vii) good governance, especially e-Governance and citizen participation, viii) sustainable environment, ix) safety and security of citizens, particularly women, children and the elderly, and, x) health and 9 education. Mission would cover 100 cities and its duration will be 5 years (FY 2015-16 to FY 2019-20). Selection process of Smart Cities is visualized under Para-7 of the scheme, Annexure P-1. According to this para, letter is required to be addressed to all the State Governments to shortlist potential Smart Cities based on Stage 1 criteria according to number of smart cities distributed across the States/ UTs by the MoUD. Thereafter, on the basis of the responses from States/ UTs, list of potential 100 smart cities is to be announced. Each potential Smart City prepares its proposal assisted by a consultant and, thereafter, evaluation by a panel of experts is to be carried out and selected cities are declared. 10. According to para-8 of the Scheme, total number of 100 smart cities has been distributed among the States/UTs on the basis of equitable criteria. The formula gives equitable weightage of 50:50 to urban population of the State/ UT and the number of statutory towns in the State/ UT. Based on this formula, each State/ UT will, therefore, have a certain number of potential Smart Cities, with each State/UT having at least one. 11. Para-9 of the Scheme provides the mechanism for the process of selection of smart cities. According to para-9.1, each aspiring city competes for selection as a smart city in what is called a ‘City Challenge’. After the number has been indicated to 10 the respective Chief Secretaries, as outlined in para 8, the State/ UT will undertake the required process as visualized in para 9.1.1 onwards. Para 9.1.1 provides that the State/UT begins with shortlisting of potential Smart Cities on the basis of conditions precedent and scoring criteria and in accordance with the total number allocated to it. First stage of the competition is intra-State, in which cities in the State complete on the conditions precedent and the scoring criteria laid out. These conditions precedent have to be met by the potential cities to succeed in the first round of competition and the highest scoring potential Smart Cities will be shortlisted and recommended to participate in Stage 2 of the Challenge. The conditions precedent and the Forms are given in Annexure 3. The information sent by the ULBs in the Forms has to be evaluated by the State Mission Director and the evaluation is to be placed before the HPSC for approval. The composition of the State HPSC is given in para 13. Cities emerging successful in the first round of competition are required to be sent by the State/UT as the recommended shortlist of Smart Cities to MoUD by the stipulated date. 12. In the second stage of the competition, each of the potential 100 Smart Cities prepare their proposals for participation in the ‘City Challenge’. According to para 9.1.3, by the stipulated date to be indicated by MoUD to the States/ UTs, proposals will be 11 submitted to MoUD for all these 100 cities. These will be evaluated by a Committee involving a panel of national and international experts, organizations and institutions. The winners of the first round of Challenge are to be announced by MoUD. 13. Para 13 deals with ‘Mission Monitoring’. Para 13.2 of annexure P-1 reads as under: 13.2 State Level There shall be a State Level High Powered Steering Committee (HPSC) chaired by the Chief Secretary, which would steer the Mission Programme in its entirety. The HPSC will have representatives of State Government departments. The Mayor and Municipal Commissioner of the ULB relating to the Smart City would be represented in the HPSC. There would also be a State Mission Director who will be an officer not below the rank of Secretary to the State Government, nominated by the State Government. The State Mission Director will function as the Member-Secretary of the State HPSC. The indicative composition of HPSC is given below: i. Principal Secretary, Finance, ii. Principal Secretary, Planning, iii. Principal Secretary/Director, Town & Country Planning Department, State/UT Governments iv. Representative of MoUD, v. Select CEO of SPV in the State,* vi. Select Mayors and Municipal Commissioners/Chie Executive of the ULBs, and Heads of the concerned State Line Departments, vii. Secretary/ Engineer-in-Chief or equivalent, Public Health Engineering Department, viii. Principal Secretary, Urban Development-Member Secretary. The key responsibilities of the HPSC are given below. i. Provide guidance to the Mission and provide State level platform for exchange of ideas pertaining to development of Smart Cities. ii. Oversee the process of first stage intra-State competition on the basis of State 1 criteria. iii. Review the SCPs and send to the MoUD for participation in the Challenge. 12 14. One city has been allocated to the State of Himachal Pradesh as per annexure P-1. Scoring criteria has been provided in annexure 3 (page 40 of paper book), which reads as under: Scoring criteria Below are given the scoring criteria to be used by the States/UTs to score the potential Smart Cities and send the names of cities with the highest scores to MoUD for their selection to participate in the Stage 2 of the Challenge. 1. Existing Service Levels i. Percentage of increase over Census 2011 or Swachh Bharat baseline on number of household sanitary latrines, whichever is less (Form 2, Part-I)- 10 points, ii. Making operable Online Grievance Redressal System with response being sent back to complainant (Form 2, Part-2) – (Y/N)- 5 points. iii. At-least first monthly e-newsletter published (Form 2, Part-3) – (Y/N) -5 points, and iv. Electronically place project-wise municipal budget expenditure information for the last two financial years on the website (Form 2, Part-4) – (Y/N) -5 points. 2. Institutional Systems/ Capacities i. Started to levy compensatory penalty for delays in service delivery (Form 2, Part 7) –(Y/N) – 5 points, and ii. Has the total collection of internally generated revenue (e.g. taxes, fees, charges) shown an increasing trend during the last three FYs (2012-15)-(Form 2, Part 8) (Y/N) – 10 points. 3. Self financing i. Payment of salaries by ULB up-to last month (Form 2, Part -9) - 5 points, ii. Audit of accounts up-to FY 12-13 (Form 2, Part-10) – points. iii. Percentage contribution of tax revenue, fees and user charges, rents and other internal revenue sources to the ULB Budget (actuals in 2014-15)-(Form 2, Part 11) -10 points, and 13 iv. Percentage of operation and maintenance cost of water supply, which is met by collected user charges for supply of water during last FY (2014-15) – (Form 2, Part 12) – 10 points. 4. Past track record and reforms. i. Percentage of internal revenue sources (self-generated) budget funds used for capital works during FY (2014-15)- (Form 2, Part 13)-10 points. ii. Percentage of City-level JnNURM Reforms achieved (Form 2, Part 14) – 10 points for six (6) ULB level Reforms, and iii. Percentage of JNNURM projects completed, which were sanctioned during the original Mission period (upto 2012) (Form 2, Part 15) – 10 points. Documents The forms in which the States have to get proposal from the ULBs and in which they have to send to the MoUD are given below. 1. The list of cities shortlisted by each state (Form 1, Part-1). 2. Declaration of shortlisting criteria met by each shortlisted city (Form 1, Part-2). This form needs to be submitted to each shortlisted city. 3. Undertaking of the State Government to make the city smart (Form 1, Part-3) 4. Order of constitution of Inter-departmental Task Force (Form 1, Part-4). Additional documents in support of Form 1, will be submitted by each shortlisted city under the signature of Municipal Commissioner/ Head of the ULB to the State Mission Director (Form 2). 15. Tabular details of the scoring obtained by each shortlisted city is provided in Form 1. It reads as under: FORM 1 (To be sent by State to MoUD) Name of State: ……………………………………………………. Number of cities allotted: ………………………………………… 14 Part 1: List of cities shortlisted by each State. Conditions precedent Satisfied S.No. Name of city Population of city 1 Y/N 2 Y/N 3 Y/N 4 Y/N Part 2: Details of score obtained by each shortlisted city* Name of Shortlisted City: S.No. Criteria Total Score Score obtained 1 Increase over Census 2011 or Swachh Bharat baseline on number of household sanitary latrines (whichever is less) 10 2 Making operable Online Grievance Redressal System with response being sent back to complainant 5 3 At-least first monthly e-newsletter published 5 4 Electronically place project-wise municipal budget expenditure information for the last two financial years on the website 5 5 Levy of compensatory penalty for delays in service delivery 5 6 Collection of internally generated revenue (e.g. taxes, fees, charges) during the last three FYs (2012-15) 10 7 Payment of salaries by ULB up-to last month 5 8 Audit of accounts for FY 12-13 5 9 Percentage contribution of tax revenue, fees and user charges, rents and other internal revenue sources 10 10 Percentage of establishment and maintenance cost of water supply 10 11 Percentage contribution of internal revenue sources (self-generated) used for capital works during FY 2014-15 10 12 Percentage of City-level JNNURM Reforms achieved 10 13 Percentage of completion of Projects sanctioned upto March, 2012 under JNNURM 10 Total 100 *This form needs to be filled for each shortlisted city. 15 16. Form 1 is to be sent by the State to the MoUD and the Form to be sent by ULB to the State is as under: Form 2- Score Card (to be sent by ULBs to State) Name of ULB: ……………………………………………… Name of State: ……………………………………………. Existing Service Levels Part 1: Increase in sanitary latrines built under Swachh Bharat Mission Achievement > 10% Achievement between 7.5 to 10% Achievement between 5 to 7.5% Achievement <5% 10 marks 7.5 marks 5 marks 0 marks Percentage of increase over Census 2011 or Swachh Bharat baseline on number of household sanitary latrines (whichever is less) Part 2: Operable Online Grievance Redressal System Yes (5 points) No (0 points) Making operable Online grievance redressal system with response being sent back to the complainant Part 3: Monthly e-newsletter Yes (5 points) No (0 points) At-least first monthly e-newsletter published Part 4: Electronically place project-wise municipal budget expenditure information Yes (5 points) No (0 points) Electronically placed project-wise municipal budget expenditure information for the last two financial years on the website Part 5: Resolution of elected city council A copy of the Resolution No. _________ dated _______ (English/Hindi/Other version) is attached. Part 6: Table with dates, specific agenda and number of people in attendance in ward consultations held with residents of the city. 16 S.No. Date Agenda Ward No. No. of people attended Institutional Systems/ Capacities Part 7: Levy of compensatory penalty for delays in service delivery Yes (5 points) No (0 points) Started to level compensatory penalty for delays in service delivery Part 8: Collection of internally generated revenue (e.g. taxes, fees, charges) during the last three FYs (2012-15). Year Yes (10 points) No (0 points) 2012-13 2013-14 2014-15 Increasing trend of total collection of internally generated revenue (e.g. taxes, fees, charges) during the last FYs (2012-15) Self Financing Part 9: Payment of salaries Yes (5 points) No (0 points) Payment of salaries by ULB up-to last month Part 10: Audit of accounts Yes (5 points) No (0 points) Audit of accounts up-to FY 12-13 Part 11: Percentage contribution of tax revenue, fees and user charges, rents and other internal revenue sources > 50% contribution in ULB Budget Between 35% to 50% contribution in ULB Budget Between 20% to 35% contribution in ULB Budget <20% contribution in ULB Budget 10 marks 7.5 marks 5 marks 0 marks Percentage contribution of tax revenue, fees and user charges, rents and other internal revenue sources 17 to the ULB Budgeted receipts (actuals in 2014- 15) Part 12: Percentage of operation and maintenance cost of water supply >80% O & M cost coming from user charges Between 60% to 80% O & M cost coming from user charges Between 40% to 60% O&M cost coming from user charges <40% O & M cost coming from user charges 10 marks 7.5 marks 5 marks 0 marks Percentage of O&M cost met through user charges collection for supply of water during last FY Past Track record and reforms Part 13: Percentage contribution of internal revenue sources (self-generated) used for capital works >20% contribution for capital works Between 10% to 20% contribution for capital works Between 5% to 10% contribution for capital works <5% contribution for capital works 10 marks 7.5 marks 5 marks 0 marks Percentage contribution of internal revenue sources (self-generated) used for capital works during FY 2014-15 Part 14: City-level JnNURM Reforms 100% of the reforms achieved 90% of the reforms achieved 80% of the reforms achieved <80% of reforms achieved 10 marks 7.5 marks 5 marks 0 marks Percentage of City-level JnNURM Reforms* achieved *As per cycle V records 31.3.2014 Part 15: Completion of Projects sanctioned upto March, 2012 under JnNURM 100% of the projects completed 90% of the projects completed 80% of the projects completed <80% projects completed 10 marks 7.5 marks 5 marks 0 marks Percentage of JnNURM 18 projects** completed, which were sanctioned during the original Mission period (upto March, 2012) **As per the completion certificate received from State as on 31.3.2014 I hereby confirm that I have verified the information presented in this form which is true and correct to the best of my knowledge. (Municipal Commissioner/Head of the ULB, Parastatal) 17. The Governor of Himachal Pradesh was pleased to appoint/nominate Additional Chief Secretary/Pr. Secretary /Secretary (UD) to the Government of Himachal Pradesh as State Mission Director for implementing Smart Cities Mission in the State, vide annexure P-6. Annexure P-6 reads under: Government of Himachal Pradesh Department of Urban Development NO. UD-C(10)1/2014 dated: Shimla-171002, the 25-6-2015 In order to implement Smart Cities Mission of Government of India, the Governor, HP is pleased to appoint/nominat Additional Chief Secretary/Pr. Secretary /Secretary (UD) to the Government of Himachal Pradesh as State Mission Director for implementing Smart Cities Mission in the State. By order ACS (UD) to the Endst. No. as above dated Shimla-171002, the 25.6.2015 Copy is forwarded for information and necessary action to: - 1. The Secretary to the Government of India, Ministry of Urban Development, Nirman Bhawan, New Delhi, w.r.t. his DO No. K-15016/10/SC-2015(Pt-II) dated 8/6/2015 2. All the Additional Chief Secretary /Pr. Secretaries/ Administrative Secretaries /FC(Rev & Apple) Govt of HP 19 3. Mayor, Municipal Corporation, Shimla-1. 4. Director, Urban Development Department, Himachal Pradesh. 5. The Commissioner, Municipal Corporation, Shimla-1 6. Guard file. Sd/- Addl. Secretary (UD) to the Govt. of Himachal Pradesh. 18. Government of Himachal Pradesh, Department of Urban Development issued notification dated 25.6.2015 constituting State Level High Powered Steering Committee (HPSC) in its entirety. It reads as under: NOTIFICATION In order to implement Smart Cities Mission of Government of India, the Governor, HP is pleased to constitute State Level High Powered Committee (HPSC) under the chairmanship of the Chief Secretary, GoHP to steer the Smart Cities Mission in its entirety. The Mayor and Municipal Commissioner of the ULB relating to the Smart City would be represented in the HPSC. The members of the Committee are as under: - i. Principal Secretary, Finance, ii. Principal Secretary, Planning, iii. Principal Secretary/Director, Town & Country Planning Department, State/UT Government iv. Representative of MoUD, v. Director, Urban Development, HP (SPV) vi. Mayors and Municipal Commissioners/Chie Executive of the concerned ULBs, and Heads of the concerned State Line Deptt, vii. Secretary/ Engineer-in-Chief of Irrigation and Public Health Engineering Deptt. viii. ACS/Principal Secretary, Urban Development, Member Secretary The key responsibilities of the HPSC are given below. i. Provide guidance to the Mission and provide State level platform for exchange of ideas pertaining to development of Smart Cities. ii. Oversee the process of first stage intra-State competition on the basis of State 1 criteria. iii. Review the SCPs and send to the MoUD for participation in the Challenge. 20 19. Government of India issued an office memorandum requesting to immediately start the preparation for Stage 2 of the challenge as given under Smart Cities Mission Statement and Guidelines and as per Annexure P-2, Dharamshala finds mention at Sr. No. 14 at page-62 of the paper-book. 20. The Governor, Himachal Pradesh was pleased to appoint /nominate Additional Chief Secretary/Principal Secretary/ Secretary, Urban Development, to the Government of Himachal Pradesh as State Mission Director for the implementation of Smart Cities Mission in the State of Himachal Pradesh vide Notification dated 25.6.2015. The State Government in order to implement the Smart Cities Mission of Government of India was pleased to constitute HPSC, as discussed herein above. Mayors and Commissioners and Chief Executive Officers of the concerned ULBs and heads of the State line departments were also included. 14 ULBs have submitted their self-assessment in the prescribed format for consideration to be included in the list of Smart Cities. Annexure 3 in tabular form is given in Form 2. Municipal Corporation, Shimla has claimed 85 points and Municipal Corporation, Dharamshala has claimed 87.5 points in the self- assessment as per annexures R-4/4 and R-4/5. Process for selecting Smart Cities has commenced as per annexure R-4/1 dated 26.6.2015 whereby Chief Secretary, Himachal Pradesh was 21 also requested to take further necessary action so that timeliness is met. Intended date to announce 100 Smart Cities was 3.8.2015. 21. In fact, in the State of Himachal Pradesh HPSC was also constituted as per Notification dated 25.6.2015 vide annexure P-7. City of Shimla has published e-newsletter on the MC website before the selection process commenced. Dharamshala had issued e-newsletter as per its reply before the commencement of Smart City competition i.e. 1.7.2015. There is no date mentioned when this e-newsletter was published but despite that 5 points were claimed against this criterion. e-newsletter was published after the process had commenced. In the column ‘electronically place project-wise municipal budget expenditure information for the last two financial years’, what has been stated by Municipal Corporation, Dharamshala in annexure R-4/4 is ‘Yes scanned copies of budget uploaded on Council’s Website’. They have claimed 5 points. Now, as far as Municipal Corporation, Shimla is concerned, as per annexure P-4, Shimla city project wise budget for the year 2014-15 was displayed on its website and Municipal Corporation, Dharamshala has not given the details of budget. What is stated is that the scanned copies of budget were uploaded on the Council’s website. When these were uploaded has also not been given. Requirement was to give ‘electronically enabled place project-wise municipal budget expenditure information for the 22 last two financial yeas on the website’ and not on the basis of ‘scanned copies of budget uploaded on the Council’s website’. However, despite that Municipal Corporation, Dharamshala has claimed 5 points. 22. Against Para-13, Municipal Corporation, Shimla has claimed 7.5 points and Municipal Corporation, Dharamshala has claimed 10 points as per self-assessment. According to annexure P-4, ‘collection of revenue’ of Municipal Corporation, Dharamshala is `2.74 Crores and salary disbursement is `22.60 Lakh per month, which means that ULB disburses annual salary of 2.71 Crores, then how can Dharamshala utilize 20% of funds to capital works. But despite that, it has claimed 10 points in the self- assessment. Against item No. 14, i.e. ‘City-level JnNURM Reforms achieved’, city of Shimla has implemented all the reforms under JnNURM project i.e. double entry accounting, collection of property tax and user charges including basic services to urban poor. The city is the only municipality in State having online water and property tax collection system. Now, as far as Dharamshala town is concerned, it has not yet implemented double entry accounting. It was having only cash accounting. There was no online system for collection of water and property tax. There is no internal earmarking for urban poor. Thus, it could not claim 10 points under this item. 23 23. According to the reply filed by respondents No. 3 and 4, Municipal Corporation, Shimla is covered under the umbrella scheme known as JnNURM for the years 2007-2012. Points were to be allocated for completion of projects upto March 2012 under JnNURM. Dharamshala has been covered only under UIDSSMT. UIDSSMT is only one of the components of JnNURM. However, despite that 10 points have been claimed by Municipal Corporation, Dharamshala under item No. 15. It shows non- application of mind. 24. We have also gone through the record which was placed before us at the time of hearing of the matter to ascertain whether the guidelines have been followed in their letter and spirit or not. HPSC has convened two meetings i.e. on 15.7.2015 and 29.7.2015. Proceedings of first meeting of the HPSC held on 15.7.2015 at 12.30 pm under the Chairmanship of Additional Chief Secretary (Urban Development), read as under: Proceedings of the 1st meeting of State Level High Power Committee (HPSC) to implement 'Smart City Mission' in the State held on 15/7/2015 at 12.30 PM under the Chairpersonship of Additional Chief Secretary (UD) to the govt. of Himachal Pradesh. Following were present: 1. Shri Narinder Chauhan, Addl. Chief Secretary (PWD) to the Govt.of HP. 2. Shri SKBS Negi, Addl. Chief Secretary (MPP & Power) to the Govt. of HP. 3. Mrs. Nandita Gupta, Spl Secy (E&T, IT and Health) to the Govt. of HP. 24 4. Shri Sushil Kapta, Spl. Secy. (IPH) to the Govt. of HP. 5. Capt. J.M. Pathania, Director, Urban Development, HP. 6. Mrs. Priyanka Basu, Director, IT, HP 7. Shri K.C. Dhiman, Chief Engineer I & PH Shimla-1. 8. Shri Dinesh Malhotra, Deputy Commissioner, Shimla. 9. Shri Pankaj Rai, Commissioner Municipal Corporation, Shimla-1. 10. Shri Sudesh Kumar Mokhta, SDC Kangra at Dharamshala, HP. 11. Shri Rakesh Kapoor, Addl. Secretary (RPG) to the Govt. of HP. 12. Smt. Urmil Karar, Addl. Secretary (UD) to the Govt. of HP. 13. Shri Sat Pal Dhiman, Deputy Secretary (Forests) to the Govt. of HP. 14. Shri Sandeep Sharma, State Town Planner, TCP Deptt. Shimla-9. At the out-set Additional Chief Secretary(UD) to the Govt. of HP welcomed all the participants and apprised about the launching of Smart City Mission and gave brief introduction on the Mission and apprised that the State of Himachal Pradesh has been allotted only one Mission City. Director, UD made a presentation on the Smart City Mission as per the guidelines and statement of the Mission. Copy of the presentation is annexed. After presentation, a detailed discussions took place on all the aspects of the Mission and selection of City in accordance with the guidelines and fulfillment of criteria/suitability of the city. ACS PWD suggested that instead of looking only at Shimla & Dharamshala, lesser developed townships should be considered to be upgraded around a land mark institution like the IIM at Poanta Sahib. ACS (MPP & Power) clarified that 24 7 power supply was already available and the deptt. would be able to fulfill the condition of 10% energy being generated from solar energy Addl. Secy. RPG pointed out that the biggest challenge was in tackling sold waste management. Director IT agreed with ACS (PWD) and suggested that Baddi Barotiwala should be developed. 25 Chief Engineer, IPH observed that it would be difficult to make infrastructural improvements in the congested areas of Shimla. Deputy Commissioner, Shimla made a strong argument for Shimla being positioned as a Smart City given its heritage status, attraction for tourism, being the state capital and the city that would be able to fulfil most of the qualifying criteria. Since the short listing/ selection of city would be based on the scoring criteria, as such, the ACS (UD) has re-iterated that selection would be on Intra State Competition basis and let the guidelines be circulated amongst all DCs as well as ULBs so as to enable them to work out their claim on scoring system, as envisaged in the guidelines. Director, Urban Development, Himachal Pradesh has been asked to circulate the Guidelines of Smart City Mission to all Deputy Commissioners as well as ULBs in the State for seeking proposal in accordance with the guidelines from them and submit proposals to the government immediately. Meeting ended with a vote of thanks from and to the Chair. ******* 25. According to annexure P-6 dated 25.6.2015, the Governor was pleased to appoint/nominate the Additional Chief Secretary /Pr. Secretary / Secretary (UD) to the Government of Himachal Pradesh as State Mission Director for the implementation of Smart Cities Mission in the State. Committee was also constituted on the same date i.e. 25.6.2015 as annexure P-7. Additional Chief Secretary (UD) to the Government of Himachal Pradesh sent a communication to 14 members of the Committee on 9.7.2015. These are at page 238 of the record, 26 whereby members were asked to attend the meeting to be held on 15.7.2015. Letter was never addressed to the Mayor of Municipal Corporation, Shimla though he was also one of the members of the Committee, as per Notification dated 25.6.2015. Additional Chief Secretary (UD) to the Government of Himachal Pradesh sent a communication to the Director, Urban Development Department, all the Deputy Commissioners, Commissioner, Municipal Corporation, Shimla to go through the guidelines and submit proposals in accordance with guidelines to the department through Director, Urban Development immediately. Director, Urban Development sent a communication to the Additional Chief Secretary(UD) on 28.7.2015 informing him that communication was sent on 20.7.2015, to all the ULBs to submit the proposal for their respective cities as per Mission Statement and Guidelines. Score cards were received from 14 ULBs. Proposals were submitted by the ULBs for taking further necessary action. This letter is at page 295 of the record. According to para 9.1.1, information sent by the ULBs in Form was to be evaluated by the State Mission Director and this evaluation was to be placed before HPSC for approval. 26. We have gone through the record carefully. It is not discernible from the record that the State Mission Director has ever evaluated the proposals/information sent by the ULBs as per 27 para 9.1.1. He ought to have evaluated the data placed before him and only thereafter should have placed the same before HPSC for approval. State Mission Director has abdicated his powers and placed the data without evaluation before the HPSC. 27. According to Note No. 83 of the record, Government of India had requested for submission of proposals on 31.7.2015 (page 290-293 of the record). However, due to shortage of time, proposal could not be placed before the State Level Steering Committee constituted vide Notification dated 25.6.2015. City was to be selected on the basis of score card of ULBs as such it was proposed that proposals may be forwarded to the Government of India before 31.7.2015. This proposal was mooted on 29.7.2015. Thereafter, matter was discussed with Additional Chief Secretary (UD) and the meeting was scheduled for 29.7.2015 at 4.00 pm. All the members were to be informed telephonically. Note dated 30.7.2015 makes an interesting reading, it says that proceedings of 2nd meeting of HPSC to implement Smart Cities Mission in the State held on 29.7.2015 under the Chairmanship of worthy Chief Secretary to the Government of Himachal Pradesh have been attempted and placed for the approval of worthy Chief Secretary. Thereafter it was placed before the Chief Secretary for the approval of the minutes. Meeting was attended by three officers i.e. Mrs. Manisha Nanda, ACS (UD, TCP and Housing), Shri Narinder 28 Chauhan, ACS (PWD/Fin. Plg) and Shri P.C. Dhiman, ACS (IPH). There is no contemporaneous record to establish that the other members of the Committee were even informed telephonically. Meeting was convened on 29.7.2015. There is no reason assigned why Dharamshala town has been selected. There is no discussion even why Dharamshala has been given preference over city of Shimla. HPSC has not even insisted for the evaluation by the State Mission Director. Meeting was held in a great hurry and the procedure laid down as per Mission Statement and Guidelines for Smart Cities has not been adhered to. Letter was prepared on 30.7.2015 and sent on 31.7.2015 to the Government of India. 28. We have not understood the expression “attempted” made in Note 85, signed by one Shri Santosh Kumar on 30.7.2015. He has also made proposal on 29.7.2015 that it was not possible to convene meeting. Everything has been done in a hush-hush and non-transparent manner. Procedure laid down has been given a complete go-bye while recommending the case of Dharamshala. The relevant noting portion reads as under: “Page 295 In response to decision taken in the meeting held on 15/7/2015 and to this department letter at page 294, Director, UD has submitted the score card of 14 ULBs namely Shimla, Dhararmshala, Solan, Mandi, Hamirpur, Manali, Kullu, Bilaspur, Sri Nainadeviji, Dalhousie, Talai, Bhunter, Narkanda, and Banjar. which may kindly be perused. Here it is submitted that 1st meeting on Smart City Mission was held on 15/7/2015 under the chairmanship of Additional Chief Secretary (UD) in which all stake 29 holder departments have taken part. Director, UD was asked for submission of proposal as per the guidelines of Smart City Mission. The proceedings of the meeting is at F/A and the guidelines of Smart City Mission is at F/B. The Government of India has requested for submission of proposal by 31/7/2015 vide page 290-293/corrs. Due to shortage of time this proposal cannot be placed before the State Level Steering Committee constituted vide this department notification dated 25/6/2015 at F/C. The city is to be selected on the basis of score card of ULB’s . As such it is proposed we may forward the proposal to Government of India with in stipulated period i.e. by 31/7/2015. In view of above matter is submitted for consideration and further orders please. Sd/- Santosh Kumar 29/7/2015 Dispensed with ACS(UD). Meeting of HPSC has been scheduled today at 4.00 PM. All members informed telephonically. Let the meeting of HPSC be held first and then put up. Sd/- 29/7/2015 Sh. SK. Government of Himachal Pradesh, Department of Urban Development File No. UD-C/1)1/2014-loose Subject: Regarding Smart Cities Mission. (main file is under submission) Proceedings of the 2nd meeting of State level High Power Steering Committee (HPSC) to implement Smart City 30 Mission in the state held on 29/7/2015 under the Chairmanship of worthy Chief Secretary to the Govt. of Himachal Pradesh have been attempted and placed below for approval of worthy Chief Secretary please. Santosh Kumar 30/7/2015 Sd/- 30/7/2015 AS(UD) leave. ACS/UD) May kindly approve, the minutes of the meeting.” 29. What transpires from the record is that whatever score cards have been sent by fourteen ULB’s, were placed before the meeting held on 29.7.2015. According to Notification annexure P-7 (dated 25.6.2015) whereby HPSC was constituted. Principal Secretary, Finance, Principal Secretary Planning, Principal Secretary/Director UD, representative of MoUD, Mayors and Municipal Commissioners/ Chief Executives of concerned ULBs and Secretary /Engineer-in-Chief of Irrigation & Public Health Engineering Department were members and ACS/Principal Secretary, Urban Development was the Member Secretary. Meeting was convened on 29.7.2015. 30. We have gone through the attendance chart of the participants of 2nd meeting of the HPSC constituted for implementation of Smart Cities Mission held under the Chairmanship of the Chief Secretary to the Government of 31 Himachal Pradesh in his office Chamber on 29.7.2015 at 4.00 pm. The only participants were Mrs. Manisha Nanda, ACS (UD, TCP, Housing), Shri Narinder Chauhan, ACS (Fin. Plg) and Shri P.C.Dhiman, ACS (IPH). Neither the Principal Secretary (Finance) nor the Director UD, Mayor, Municipal Commissioner/Chief Executives and Secretary /Engineer-in-Chief, I&PH has participated in the meeting. The Committee was broad based and all the stake-holders should have been invited to enable them to attend the meeting held on 29.7.2015. Mayor of Municipal Corporation, Shimla had a vital stake in the proceedings. He was not summoned to attend the meetings held on 15.7.2015 and 29.7.2015. Thus, on the basis of the meeting which lacked quorum, decision was taken to recommend and forward case of Dharamshala to the Government of India on 30.7.2015/31.7.2015. 31. We have already quoted above the para 13.2, verbatim. There was supposed to be a representative of MoUD as per para 13.2. The Joint Secretary (UD), as per office memorandum dated 14.7.2015, was required to participate in the deliberations held on 15.7.2015 and 29.7.2015. However, he has not participated in the meeting. It further erodes the credibility of the HPSC, in which Joint Secretary (MoUD) has been made representative of MoUD vide Notification dated 25.6.2015 as well 32 as OM dated 14.7.2015. Presence of Joint Secretary (MoUD), Director, UD, Mayors and Municipal Commissioners/ Chief Executives of the concerned ULBs and Heads of the concerned State Line Departments was necessary to take a conscious decision while shortlisting cities for inclusion in the list of Smart cities. 32. Reasons assigned in the reply of respondents No. 1 and 2, for non-participation of the representative of MoUD are that meeting was convened on a short notice. ACS/Secretary UD, being the Member Secretary, should have ensured that all the members of the committee were informed in advance. 33. Now, we can summarise that neither State Mission Director has evaluated the proposals nor the quorum of meeting dated 29.7.2015 was complete. It was a coram non judice. We have already pointed out that in case evaluation had been undertaken, mistakes committed by Municipal Corporation, Dharamshala while allocating marks to itself, which we have noticed above, could be pointed out to HPSC, more particularly points under item Nos. 3, 4, 13, 14 and 15. We are still unable to understand how and why 10 points have been given to Dharamshala city for completion of projects sanctioned under JnNURM without annexing necessary certificate of completion on or before 31.3.2014. Dharamshala was covered only under UIDSSMT. We 33 have gone through the original record whereby information was sent in Form to Director, Urban Development Department. According to Column No. 15, completion certificate was to be received from the State as on 31.3.2014. It is stated in Form-B that necessary certificate was attached. We have gone through the original record. This certificate is not on record. Thus, respondent No. 6 could not be allocated 10 points under the category of ‘percentage of completion of JnNURM projects’. Points allocated to Municipal Corporation, Dharamshala under item Nos. 3, 4, 13, 14 and 15, as per annexure P-4, were to be excluded while compiling score card. In the reply filed by the respondent-State, it is specifically stated, as noticed by us earlier, that the decision not to include Shimla in the list of Smart Cities primarily has been taken since Municipal Corporation, Shimla has failed to complete JnNURM projects. This reason has not at all been discussed in the meeting held on 29.7.2015. Decision should have been taken in the meeting and the same can not be permitted to be explained on the basis of affidavit. Moreover, the other reason assigned for not including Shimla in the list of potential Smart Cities is that it has been sanctioned AMRUT scheme. This ground has not been taken in the proceedings held on 29.7.2015. The project for storm water drainage (Channelization of Nallah in Dharamshala town) was approved and an amount of Rs.190.18 Lakh was approved. The 34 same could not be made a basis for claiming 10 points since it never formed part of the prescribed criteria. 34. De Smith, Woolf and Jowell, in “Judicial Review of Administrative Action”, Fourth Edition, 1980, have held that all developed legal systems have had to face the problem of resolving the conflict between the two aspects of the public interest; the desirability of encouraging individual citizens to participate actively in the enforcement of the law, and the undesirability of encouraging the professional litigant and the meddlesome interloper invoking the jurisdiction of the courts in matters in which he is not concerned. The conflict has been resolved by developing principles which dete4rmine who is entitled to bring proceedings; that is who has locus standi or standing to bring proceedings. If those principles are satisfactory they should only prevent a litigant who has no legitimate reason for bringing proceedings from doing so. When a person has standing to bring proceedings there still remains the question as to the purpose for which he can bring those proceedings, which involves issues of justiciability as to which. The learned author has elucidated the ‘locus standi’ as under: “A number of arguments are traditionally advanced for not allowing totally unrestricted access to the court to any member of the public for the purpose of challenging an administrative action of which he does 35 not approve. First, it would be unwise to assume that the effect of the doctrine of precedent and the power of the courts to award costs, even on an indemnity basis, will sufficiently deter unmeritorious challenges. Secondly, the courts’ resources should not be dissipated by the need to provide a forum for frivolous proceedings. Thirdly, the proper function of central and local government and other public bodies should not be disrupted unnecessarily to the disadvantage of other members of the public by having a contest proceedings. Fourthly, there is something to be said for the courts, as a matter of prudence, reserving their power to interfere with the workings of public bodies to those occasions when there is an application before them by someone who has been adversely affected by the unlawful conduct of which complaint is made. Fifthly, particularly in relation to administrative action which can affect sections of the public, it is important that the proceedings should be brought by a person who, because he is sufficiently interested in the outcome of the proceedings or otherwise, is in a position to ensure that full argument is favour of the remedy which is sought is deployed before the court. Sixthly, it is important that the courts confine themselves to their correct constitutional role, and do not become involved in determining issues which are not justiciable by giving unlimited access to the courts. There are substantial arguments in favour of adopting a generous approach to standing. This is particularly true in judicial review proceedings since 36 here it is frequently important, in the interests of the public generally, that the law should be enforced. The policy should therefore be to encourage and not discourage public-spirited individuals and groups, even though they are not directly affected by the action which is being taken, to challenge unlawful administrative action. Other safeguards, besides restrictive rules as to standing, exist to protect the courts and administrators from unmeritorious challenges. (In the case of judicial review there is the requirement of leave and in proceedings without that requirement there is the ability to apply to have the proceedings struck out if there is no cause of action or the proceedings are an abuse of the court). Where there are strict rules as to standing there is always the risk that no one will be in a position to bring proceedings to test the lawfulness of administrative action of obvious illegality or questionable legality. It is hardly desirable that a situation should exist where because all the public are equally affected no one is in a position to bring proceedings. The fears that are sometimes voiced of the courts being overwhelmed by a flood of frivolous actions are unsupported by any evidence of this happening in practice. The costs of litigation are now so heavy that it is only the most determined vexatious litigant who will indulge in legal proceedings which are without merit. The arguments in favour of a restrictive approach to standing nearly always confuse the question of the merits of the litigation with the question of who should be entitled to bring the proceedings. If there is a satisfactory 37 mechanism for dealing with unmeritorious or frivolous claims most of the arguments for a restrictive approach fall away.” 35. The learned author has made following observations under the “broad and flexible approach”: “As Lord Roskill in the National Federation case pointed out, the phrase “sufficient interest” was selected by the Rules Committee of the Supreme Court in 1977 “as one which could sufficiently embrace all classes of those who might apply and yet permit sufficient flexibility in any particular case to determine whether or not ‘sufficient interest’ was in fact shown.” This is precisely the approach which has been adopted in the vast majority of the cases which have come before the courts since that time. Indeed it is difficult to find any case where an applicant has been refused relief on the grounds that he has no locus standi where relief would have been granted but for his lack of locus standi. In the National Federation case itself the applicants were entitled to be granted standing to obtain leave to apply for judicial review but failed on the merits. “Sufficient interest” should therefore be regarded as being an extremely flexible test of standing. The more important the issue and the stronger the merits of the application, the more ready will the courts be to grant leave notwithstanding the limited personal involvement of the applicant; thus a reporter and the National Union of Journalists have been regarded as 38 having sufficient interest to apply for judicial review to quash an order prohibiting the publication of a report of committal proceedings made by magistrates under the Contempt of Court Act, 1981. The prohibition interfered with the freedom of the press. A person whose telephone was tapped, but not someone who had telephoned him, can seek judicial review of a possible warrant issued by the Secretary of State authorizing the interception of communications. In R. v. Department of Transport, ex p. Presvac Engineering Ltd. the Court of Appeal considered that Presvac had locus standi to apply for judicial review in relation to the grant by the Department of a certificate to a competitor company of Presvac that valves manufactured by that company were acceptable for the purposes of Merchant Shipping Regulations, 1984. A head of chambers has standing to make an application to challenge the decision of the Bar Council not to proceed with an investigation of a member of chambers for whom he had been responsible.” 36. The learned author has summarized the issue of ‘standing’ as under: “While there remains a requirement of standing there will still be cases where applicants are refused relief because they are said not to have sufficient interest in the outcome of the proceedings. However if this only occurs where the courts are satisfied that they would not have granted relief in any event then clearly the requirement causes no harm. 39 It is to be hoped that this is now the position on judicial review. It would however be preferable if the position was made clear by legislation or a result of the decisions of the courts. On applications for judicial review, because the requirement of leave in any event acts as a satisfactory filter, the need to have standing should be no more than a convenient general principle to be taken into account by the court when determining the manner in which it should exercise its discretion as to whether to grant leave and, when leave has been granted, as to whether to grant one of the discretionary remedies available on judicial review. The general approach can be summarized as follows: (1) “Sufficient interest” has to receive a generous interpretation. It has to be treated as a broad and flexible test. (2) Only issues as to standing where the answer is obvious should be resolved on the application for leave. In other cases lack of standing should not prevent leave being granted. (3) Issues as to standing at the leave stage do not depend on the remedy which is then being claimed. (4) If the applicant has a special expertise in the subject matter of the application that will be a factor in establishing sufficient interest. This applies whether the applicant is an individual or some type of association. The fact that the applicant’s responsibility in relation to the subject of the application is recognized by statute is a strong indication of sufficient interest. (5) A great variety of factors are capable of qualifying as sufficient interest. They are not confined to property 40 or financial or other legal interests. They can include civic (or community), environmental and cultural interests. The interests can be future or contingent. (6) The gravity of the issue which is the subject of the application is a factor taken into account in determining the outcome of questions of standing. The more serious the issue at stake the less significance will be attracted to arguments based on the applicant’s alleged lack of standing. (7) In deciding what, if any, remedy to grant as a matter of discretion, the Court will take into account the extent of the applicant’s interest. At this stage different remedies may require a different involvement by the applicant.” 37. The learned authors H.W.R. Wade and C.F. Forsyth in “Administrative Law” Eighth Edition, have succinctly explained ‘locus standi’, as under: “It has always been an important limitation on the availability of remedies that they are awarded only to litigants who have sufficient locus standi, or standing. The law starts from the position that remedies are correlative with rights, and that only those whose own rights are at stake are eligible to be awarded remedies. No one else will have the necessary standing before the court. In private law that principle can be applied with some strictness. But in public law it is inadequate, for it ignores the dimension of the public interest. Where some particular person is the object of 41 administrative action, that person is naturally entitled to dispute its legality and other persons are not. But public authorities have many powers and duties which affect the public generally rather than particular individuals. If a local authority grants planning permission improperly, or licences indecent films for exhibition, it does a wrong to the public interest but no wrong to any one in particular. If no one has standing to call it to account, it can disregard the law with impunity-a result which would ‘make an ass of the law’. An efficient system of administrative law must find some answer to this problem, otherwise the rule of law breaks down. Having grown to a considerable extent out of private law, administrative law has traditionally contained a number of restrictive rules about standing. But as governmental powers and duties have increased, and as public interest has gained prominence at the expense of private right, more liberal principles have emerged. The prerogative remedies, in particular, have shown their worth, since they exist for public as well as private purposes and provide the nucleus of a system of public law. The Attorney-General also can act in the public interest and will sometimes, though not always, do so. The resources of the legal system are adequate to solve the problems, which are basically problems of judicial policy. Judges have in the past had an instinctive reluctance to relax the rules about standing. They fear that they may ‘open the floodgates’ so that the 42 courts will be swamped with litigation. They fear also that cases will not be best argued by parties whose personal rights are not in issue. But recently these instincts have been giving way before the feeling that the law must somehow find a place for the disinterested, or less directly interested, citizen in order to prevent illegalities in government which otherwise no one would be competent to challenge.” 38. The petitioner is a duly elected Mayor of Shimla Municipal Corporation and discharging important constitutional /statutory duties as per Part X-A of the Constitution of India under Municipal Corporation Act, 1994. Petitioner has the necessary locus standi to assail impugned orders whereby Shimla city has been ignored and Dharamshala town has been included in the list of potential Smart Cities. Mayor was also one of the members of the Committee duly constituted on 25.6.2015. However, fact of the matter is that he was not even invited to participate in the meetings held on 15.7.2015 and 29.7.2015. He had locus standi to raise the question of vital public importance concerning rights of the citizens of Shimla town by way of public interest litigation. His personal rights were also infringed since he was not called in the meeting held on 15.7.2015 and 29.7.2015. 39. Mr. Gagan Pradeep S. Bal, Advocate has relied upon (2003) 7 SCC 546. Their Lordships of the Hon'ble Supreme Court 43 in Guruvayoor Devaswom Managing Committee v. C.K. Rajan, reported in (2003) 7 SCC 546 have held that petition should be filed by any interested person in the welfare of the people who is in a disadvantaged position and, thus, not in a position to knock the doors of the Court. Issue of public importance, enforcement of fundamental rights of large number of public vis-à-vis the constitutional duties and functions of the State, if raised, the Court can treat a letter or a telegram as a public interest litigation upon relaxing procedural laws as also the law relating to pleadings. The common rule of locus standi is relaxed so as to enable the Court to look into the grievances complained on behalf of the poor, depraved, illiterate and the disabled who cannot vindicate the legal wrong or legal injury caused to them for any violation of any constitutional or legal right. However, in an appropriate case, although the petitioner might have moved a Court in his private interest and for redressal of the personal grievances, the Court in furtherance of the public interest may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice. Their lordships have held as under: [50] The principles evolved by this Court in this behalf may be suitably summarized as under : (i) The Court in exercise of powers under Art. 32 and Art. 226 of the Constitution of India can entertain a petition filed by any interested person in the welfare of 44 the people who is in a disadvantaged position and, thus, not in a position to knock the doors of the Court. The Court is constitutionally bound to protect the fundamental rights of such disadvantaged people so as to direct the State to fulfill its constitutional promises. (See S. P. Gupta v. Union of India (1981 (Supp) SCC 87), People's Union for Democratic Rights and others v. Union of India (1982) 2 SCC 494; Bandhua Mukti Morcha v. Union of India and others (1984) 3 SCC 161 and Janata Dal v. H. S. Chowdhary and others (1992) 4 SCC 305). (ii) Issue of public importance, enforcment of fundamental rights of large number of public vis-a-vis the constitutional duties and functions of the State, if raised, the Court treat a letter or a telegram as a public interest litigation upon relaxing procedural laws as also the law relating to pleadings. (See Charles Sobraj v. Supdt., Central Jail, Tihar, New Delhi (1978) 4 SCC 104 and Hussainara Khatoon and others v. Home Secretary, State of Bihar (1980) 1 SCC 81). (iii) Whenever injustice is meted out to a large number of people, the Court will not hesitate in stepping in. Articles 14 and 21 of the Constitution of India as well as the International Conventions on Human Rights provide for reasonable and fair trial. In Mrs. Maneka Sanjay Gandhi and another v. Miss Rani Jethmalani, AIR 1979 SC 468, it was held : \"2. Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the Court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperiling, from the point of view of public justice and its attendant, environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner's grounds on this touch-stone bearing in mind the rule that normally the complainant has the right to choose any Court having jurisdiction and the accused cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the 45 parties and from that angle the Court may weigh the circumstances.\" (See also Dwarka Prasad Agarwal (D) by L.Rs. and another v. B. D. Agarwal and others, 2003 (6) Scale 138). (iv) The common rule of locus standi is relaxed so as to enable the Court to look into the grievances complained on behalf of the poor, depraved, illiterate and the disabled who cannot vindicate the legal wrong or legal injury caused to them for any violation of any constitutional or legal right. (See Fertilizer Corporation Kamgar Union v. Union of India, AIR 1981 SC 344; S. P. Gupta (supra); People's Union for Democratic Rights (supra); Dr. D. C. Wadhwa v. State of Bihar (1987) 1 SCC 378 and Balco Employees' Union (Regd.) v. Union of India and others ((2002) 2 SCC 333). (v) When the Court is prima facie satisfied about variation of any constitutional right of a group of people belonging to the disadvantaged category, it may not allow the State or the Government from raising the question as to the maintainability of the petition. (See Bandhua Mukti Morcha (supra)). (vi) Although procedural laws apply on PIL cases but the question as to whether the principles of res judicata or principles analogous thereto would apply depend on the nature of the petition as also facts and circumstances of the case. (See Rural Litigation and Entitlement Kendra v. State of U.P., 1989 Supp (1) SCC 504 and Forward Construction Co. and others v. Prabhat Mandal (Regd.), Andheri and others (1986) 1 SCC 100). (vii) The dispute between two warring groups purely in the realm of private law would not be allowed to be agitated as a public interest litigation. (See Ramsharan Autyanuprasi and another v. Union of India and others, 1989 Supp (1) SCC 251). (viii) However, in an appropriate case, although the petitioner might have moved a Court in his private interest and for redressal of the personal grievances, the Court in furtherance of the public interest may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice. (See Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi and others (1987) 1 SCC 227). (ix) The Court in special situations may appoint Commission, or other bodies for the purpose of 46 investigating into the allegations and finding out facts. It may also direct management of a public institution taken over by such Committee. (See Bandhua Mukti Morcha (supra), Rakesh Chandra Narayan v. State of Bihar, 1989 Supp (1) SCC 644 and A. P. Pollution Control Board v. M. V. Nayudu (1999) 2 SCC 718). In Sachidanand Pandey and another v. State of West Bengal and others ((1987) 2 SCC 295), this Court held: \"61. It is only when Courts are apprised of gross violation of fundamental rights by a group or a class action or when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the Courts, especially this Court, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected. I will be second to none in extending help when such is required. But this does mean that the doors of this Court are always open for anyone to walk in. It is necessary to have some self-imposed restraint on public interest litigants.\" In Janata Dal v. H. S. Chowdhary and others (1992) 4 SCC 305, this Court opined : \"109. It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the Court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly, a vexatious petition under the colour of PIL brought before the Court for vindicating any personal grievance, deserves rejection at the threshold.\" The Court will not ordinarily transgress into a policy. It shall also take utmost care not to transgress its jurisdiction while purporting to protect the rights of the people from being violated. In Narmada Bachao Andolan v. Union of India and others ((2000) 10 SCC 664), it was held : \"229. It is now well settled that the Courts, in the exercise of their jurisdiction, will not 47 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. Even then any challenge to such a policy-decision must be before the execution of the project is undertaken. Any delay in the execution of the project means overrun in costs and the decision to undertake a project, if challenged after its execution has commenced, should be thrown out at the very threshold on the ground of laches if the petitioner had the knowledge of such a decision and could have approached the Court at that time. Just because a petition is termed as a PIL does not mean that ordinary principles applicable to litigation will not apply. Laches is one of them. 232. While protecting the rights of the people from being violated in any manner utmost care has to be taken that the Court does not transgress its jurisdiction. There is, in our constitutional framework a fairly clear demarcation of powers. The Court has come down heavily whenever the executive has sought to impinge upon the Court's jurisdiction.\" (x) The Court would ordinarily not step out of the known areas of judicial review. The High Courts although may pass an order for doing complete justice to the parties, it does not have a power akin to Art. 142 of the Constitution of India. (xi) Ordinarily the High Court should not entertain a writ petition by way of Public Interest Litigation questioning constitutionality or validity of a statute or a Statutory Rule. 40. Petitioner has highlighted question of great public importance. He has filed petition for the redressal of the grievance of the citizens of Shimla town. It has been filed for the welfare of 48 the people and it was always open for this Court to convert private interest litigation to public interest litigation as laid down by their Lordships of the Hon’ble Supreme Court in Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi and others (1987) 1 SCC 227). 41. Their lordships of the Hon’ble Supreme Court in Nandkishore Ganesh Joshi v. Commr. Municipal Corpn. of Kalyan & Dombivali, reported in (2004) 11 SCC 417, have held that submission of Mr Radhakrishnan that the appellant has no locus standi to maintain the writ petition cannot be accepted keeping in view the fact that he was the chairman of the Standing Committee and although the Standing Committee itself was not the writ petitioner. A question involving proper interpretation as regard the statutory provisions conferring a statutory right on a statutory authority vis-à-vis a statutory duty on the part of the commissioner could be gone into by the High Court even in a public interest litigation, while interpreting Mumbai Provincial Municipal Corporation Act. In this case, Chairman of the standing Committee of the second respondent-Municipal Corporation of City Kalyan and Dombivali had filed a writ petition before the Bombay High Court praying for issuance of a writ. 42. Mr. Gagan Pradeep S. Bal, Advocate has also relied upon in (2005)1 SCC 590. Their Lordships of the Hon'ble Supreme Court in Dattaraj Nathuji Thaware v. State of Maharashtra 49 reported in (2005)1 SCC 590, have held that PIL in service matters would not be maintainable. Their lordships have held that a writ petitioner who comes to the Court for relief in public interest must come not only with clean hands like any other writ petitioner but also with a clean heart, clean mind and clean objective. Present case is not a service matter and petitioner has approached this Court with clean heart, clean mind and clean objective to espouse the cause of common people. 43. Their Lordships of the Hon'ble Supreme Court in Kansingh Kalusingh Thakore v. Rabari Maganbhai Vashrambhai reported in (2006) 12 SCC 360 have held that in a catena of decisions held that only a person acting bonafide and having sufficient interest in the proceeding of PIL will alone have locus standi and can approach the Court to wipe out the tears of the poor and needy suffering from violation of their fundamental rights. 24. We have given our careful consideration for the rival submissions made by the respective counsel appearing for the respective parties. The writ petition filed by the respondents herein is an abuse of the process of the Court. By this PIL, the respondents sought to ventilate/redress their personal grievances inasmuch as they are able to holding clout in Village Rasana Nana and were enjoying illegal possession in several lands contained under said survey Nos. 125 and 126. The appellants herein were deliberately not made parties to the writ petition allegedly filed in public interest. It is a matter of record that the writ petitioners are the people who encroached upon the land sought to be granted to the appellants herein and 50 hence having no legal right to continue their illegal occupancy, devised means to approach the High Court in alleged public interest. This would be evident from the affidavit of the Deputy Collector filed on 24.03. 2005. The maintainability of the writ petition at the instance of the respondents was specifically raised before the High Court. The maintainability of the PIL which was in issue was unfortunately not decided by the High Court. The High Court, in our opinion, ought to have decided the maintainability of the PIL maintained at the instance of the encroachers and land grabbers and rejected the writ petitions at the threshold. This Court in a catena of decisions held that only a person acting bonafide and having sufficient interest in the proceeding of PIL will alone have locus standi and can approach the Court to wipe out the tears of the poor and needy suffering from violation of their fundamental rights but not a person for personal gain or private profit or political or any oblique consideration. The High Court ought to have rejected the writ petition at the threshold as observed by this court in 1992 (4) SCC 305 Janta Dal vs. H.S. Chaudhary & Ors. In our opinion, the writ petition filed by the respondents was not aimed at redressal of genuine public wrong or public injury but founded on personal vendetta. It is the duty of the High Court not to allow such process to be abused for oblique considerations and the petitions filed by such busy bodies deserves to be thrown out by rejection at the threshold and in appropriate cases with exemplary costs. 44. In the present case, petitioner has acted bonafide and has sufficient interest in the proceedings and manner in which Shimla City has been excluded and Dharamshala town has been included in the list of Smart Cities. 45. Their Lordships of the Hon'ble Supreme Court in State of Uttaranchal v. Balwant Singh Chaufal reported in (2010) 3 SCC 402 have held laid down principles relating to PIL. 51 Their lordships have held that The courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations. Their lordships have held as under: 181. We have carefully considered the facts of the present case. We have also examined the law declared by this court and other courts in a number of judgments. In order to preserve the purity and sanctity of the PIL, it has become imperative to issue the following directions:- (1) The courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations. (2) Instead of every individual judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the Rules prepared by the High Court is sent to the Secretary General of this court immediately thereafter. (3) The courts should prima facie verify the credentials of the petitioner before entertaining a P.I.L. (4) The court should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL. (5) The court should be fully satisfied that substantial public interest is involved before entertaining the petition. (6) The court should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions. (7) The courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The court should also ensure that there is no personal 52 gain, private motive or oblique motive behind filing the public interest litigation. (8) The court should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations. 46. We are of the considered view that the present petition is genuine. We have also verified the contents of petition. There is substantial public interest involved and petition as filed is for highlighting, protecting and safeguarding the interests of the citizens of the Shimla town as a whole. 47. Their lordships of the Hon’ble Supreme Court in Manohar Joshi v. State of Maharashtra reported in (2012) 3 SCC 619 have held that the submissions that the petitions were politically motivated and one of the petitioners did not have clean antecedents, cannot take away the seriousness of the charge, and the Chief Minister must squarely explain and justify his actions. Their lordships have further held that Public Interest Litigation is not in the nature of adversarial litigation. It is further held that when the cause or issue, relates to matters of good governance in the Constitutional sense, and there are no particular individuals or class of persons who can be said to be injured persons, groups of persons who may be drawn from different walks of life, may be granted standing for canvassing the PIL. Their lordships have held as under: 53 165. It was also sought to be contended that the petitions were politically motivated and one of the petitioners did not have clean antecedents. We are concerned in the present case with respect to serious allegations against the then Chief Minister misusing his office for the benefit of his son-in-law and in that process destroying a public amenity in the nature of a primary school. Such submissions cannot take away the seriousness of the charge, and the Chief Minister must squarely explain and justify his actions. 166. With respect to the Chief Minister calling the file for his perusal, the Division Bench has posed a question as to whether it was an idle curiosity. \"Why were the Chief Minister and the Minister of State interested in one particular case? What momentous public policy decision was sought to be taken in this matter?\" Shri Murudkar was not someone for whom the administration could have moved so fast. It was very clear that the Chief Minister was very much interested in knowing the progress of the case all throughout. The obvious inference was that the then Chief Minister and the Minister of State took keen interest in the matter only because Shri Murudkar had appointed the son-in-law of the Chief Minister as his developer. 185. Public Interest Litigation is not in the nature of adversarial litigation, but it is a challenge and an opportunity to the government and its officers to make basic human rights meaningful as observed by this Court in paragraph 9 of Bandhua Mukti Morcha Vs. Union of India, 1984 AIR(SC) 802. By its very nature the PIL is inquisitorial in character. Access to justice being a Fundamental Right and citizen's participatory role in the democratic process itself being a constitutional value, accessing the Court will not be readily discouraged. Consequently, when the cause or issue, relates to matters of good governance in the Constitutional sense, and there are no particular individuals or class of persons who can be said to be injured persons, groups of persons who may be drawn from different walks of life, may be granted standing for canvassing the PIL. A Civil Court acts only when the dispute is of a civil nature, and the action is adversarial. The Civil Court is bound by its rules of 54 procedure. As against that the position of a Writ Court when called upon to act in protection of the rights of the citizens can be stated to be distinct. 48. Their Lordships of the Hon'ble Supreme Court in S.R. Tewari v. Union of India reported in (2013) 6 SCC 602, have held that court can exercise the power of judicial review if there is a manifest error in the exercise of power or the exercise of power is manifestly arbitrary or if the power is exercised on the basis of facts which do not exist and which are patently erroneous. Their lordships have held as under: 19. In Commissioner of Income-tax, Bombay & Ors. v. Mahindra & Mahindra Ltd. & Ors., 1984 AIR(SC) 1182, this Court held that various parameters of the court's power of judicial review of administrative or executive action on which the court can interfere had been well settled and it would be redundant to recapitulate the whole catena of decisions. The Court further held: \"It is a settled position that if the action or decision is perverse or is such that no reasonable body of persons, properly informed, could come to, or has been arrived at by the authority misdirecting itself by adopting a wrong approach, or has been influenced by irrelevant or extraneous matters the court would be justified in interfering with the same.\" 20. The court can exercise the power of judicial review if there is a manifest error in the exercise of power or the exercise of power is manifestly arbitrary or if the power is exercised on the basis of facts which do not exist and which are patently erroneous. Such exercise of power would stand vitiated. The court may be justified in exercising the power of judicial review if the impugned order suffers from mala fide, dishonest or corrupt practices, for the reason, that the order had been passed by the authority beyond the limits conferred upon the authority by the legislature. Thus, the court has to be satisfied that the order had been 55 passed by the authority only on the grounds of illegal- ity, irrationality and procedural impropriety before it interferes. The court does not have the expertise to correct the administrative decision. Therefore, the court itself may be fallible and interfering with the order of the authority may impose heavy administrative burden on the State or may lead to unbudgeted expenditure. (Vide: Tata Cellular v. Union of India, 1996 AIR(SC) 11; People s Union for Civil Liberties & Anr. v. Union of India & Ors., 2004 AIR(SC) 456; and State of N.C.T. of Delhi & Anr. v. Sanjeev alias Bittoo, 2005 AIR(SC) 2080). 31. Hence, where there is evidence of malpractice, gross irregularity or illegality, interference is permissible. 49. Their Lordships of the Hon'ble Supreme Court in Jaipur Shahar Hindu Vikas Samiti v. State of Rajasthan reported in (2014) 5 SCC 530, have held that on technical objection, this Court cannot reject to grant relief to the appellant in this Public Interest Litigation. There is no dispute with regard to the legal proposition that technicalities should not come in the way of the Court in granting relief in a Public Interest Litigation, but application of a legal proposition depends upon the facts and circumstances of each case. Their lordships have held as under: 43. We are also not able to appreciate the argument advanced by the learned counsel for the appellant for reason that D.B. (Civil) W.P. No. 6607 of 2004 was filed by the father of Respondent No.4 herein questioning the constitution of the Committee. When the Court directed the parties to appear before the Assistant Commissioner for proper adjudication of the issues as the five-year term of the Committee expired, the 4th respondent sought permission of the Court and withdrew the writ petition, with a liberty to raise all the issues before the authority. The appellant 56 herein who was not a party to D.B. (Civil) W.P. No. 6607 of 2004 has not chosen to implead himself nor objected to the withdrawing of the writ petition when the order was passed in his presence. He is taking such an objection and such plea for the first time before this Court. He relied on Shehla Burney (Dr.) Vs. Syed Ali Moosa Raza & Ors., 2011 6 SCC 529; that on technical objection, this Court cannot reject to grant relief to the appellant in this Public Interest Litigation. There is no dispute with regard to the legal proposition that technicalities should not come in the way of the Court in granting relief in a Public Interest Litigation, but application of a legal proposition depends upon the facts and circumstances of each case. 50. Their Lordships of the Hon'ble Supreme Court in Tandon Brothers v. State of W.B. reported in (2001) 5 SCC 664, have held that where government action runs counter to good faith, is not supported by reason and law, it can not but be described as mala fide. Equity, good conscience and justice require that judicial power be used to set aside such action. Existence of justifiable reasons in the matter of formation of opinion is the principle condition and any contra action would have the effect of the same being ascribed as arbitrary exercise of power which is admittedly an antithesis of law. Their lordships have held as under: “15. Sub-section (3) on its language, as noticed above permits retention of land as is required for the tea- garden and it is the opinion of the State Government that will decide the issue of requirement. The proviso to the Section has further conferred a power to revise any order made by the State Government specifying the land which is to be retained as being required for the tea-gardens. The power to revise the order thus 57 obviously is conferment of a power in addition to what stands conferred under the main provision viz. sub- section (3). This exercise of review obviously upon formation of opinion of the State Government since the same is a power of determination in addition to the power as conferred by the principal provision. There are decisions galore of this Court as regards the issue of formation of opinion but we need not detain ourselves in this judgment to consider the issue since each case may be decided on the materials available for such formation of opinion - formation of opinion obviously is dependant upon available materials and cannot be a mere ipsedixit of the administrative authority. Existence of justifiable reasons in the matter of formation of opinion is the principle condition and any contra action would have the effect of the same being ascribed as arbitrary exercise of power which is admittedly an antithesis of law. The powers stand conferred on to the State Government, but there is no option left for the State Government but to act in accordance with law and in order to act in that direction. State Government shall have to have relevant materials pertaining to the requirements of tea gardens. A person sitting in the office in the metropolitan city of Calcutta cannot in fact, decide the issue without taking recourse to actuals on the field or on the garden and that is the precise reason as to why the field study was effected on the first occasion by the Settlement Officer and the subsequent deliberations of the tea garden Advisory Committee wherein 1451.40 acres have been treated as surplus to the requirement of the tea estate. The power of review in terms of the proviso to sub-section (3) obviously shall have to be exercised upon materials on record and not de hors the same. And let us, therefore, analyse the materials on record pertaining to the issuance of the order dated 15-12-1977, relevant extracts of which are reproduced as below: \"And whereas the State Government heard the said Tea Garden on 14th November, 1977, 21st November, 1977 and 28th November, 1977 giving liberty at ample scope of it to make its submission and produce necessary material in support of its case. And whereas it was made clear to said tea garden during the course of hearing that the area of approximately 2542.29 acres of land in occupation of 58 Military Authorities was required to be held permanently by the Military Authorities. And whereas representation made by the tea garden during the hearing was duly considered by the State Government having regard to the circumstances and findings of Darjeeling District Tea Estte (Resumption of Lands) Advisory Committee relating to the said tea garden for areas after such consideration the State Government is of the opinion that not more than 1005.40 acres of land are required by the said Tea Garden for its purposes. Now, therefore, in exercise of powers conferred by sub- section (3) of Section 6 of the said Act, the Governor is pleased to declare that 3990.17 acres of land as mentioned and described in the schedule below are surplus to the requirement of said Rohini Tea Garden and that the said Tea Garden did not entitle to remain in possession of said 3990.17 acres of lands. The Governor is also pleased to declare that 1005.40 acres of land being required for the purpose of said tea garden may be retained by it in accordance with the previous law.\" [17] The order admittedly records as per latest survey report but the survey report itself has not seen the light of the day and, in fact, whether there was such a mention as regards area under military occupation or not, nobody could vouch-safe for the same including Mr. Roy since the same is not available on record. Government records ought to have its sanctity undoubtedly and to have a particular state of affairs should also be borne out from the records and if the same is not produced before the Court or withheld from the Court, there is no reason whatsoever as to why the presumption adverse to the contention be not taken unless however cogent reasons are made available to the Courts, which however is not the case in the matter under consideration, since non- availability of governmental records cannot in the normal circumstances be presumed and on the wake of the aforesaid, it is a matter of basic requirement that the Government should have sufficient material in the formation of an opinion that the earlier opinon ought to stand modified by reason of obviously of the change of existing situation. Incidentally, be it noted that the earlier Order dated 6th April, 1973 which 59 contains the materials as enclosure thereto and which form the basis of the earlier order but the same stands quashed by the High Court and no further proceedings were initiated as a challenge to the order or to have it set aside and it is on this score that Mr. Ranjit Kumar contended that the same being an order on the basis of which a subsequent order was passed by a higher authority and in the event the latter order stands negatived, the former order also perishes with the latter. The recital portion of the Order dated 6th April, 1973 contains 8 paragraphs which mainly consist of reiteration of the earlier order and the proceedings initiated under sub-section (3) of Section 6. The 8th paragraph of the recital is of some consequence and as such, the same is set out hereinbelow: \"And whereas the objections raised by the said tea garden against the notice issued upon, was duly considered and the State Government having regard to the circumstances and findings of the Darjeeling District Tea Estate (Resumption of Lands) Advisory Committee given in Annexure \"A\" appended hereto relating to the said tea garden is of opinion that 1005.40 acres of land are retainable by the said tea garden for its purpose and that the remaining 3990.17 acres of lands are not required for the said tea garden.\" 51. Their Lordships of the Hon'ble Supreme Court in Tarlochan Dev Sharma v. State of Punjab reported in (2001) 6 SCC 260 have held that senior officers occupying key positions such as Secretaries are not supposed to mortgage there own discretion, volition and decision making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. Their lordships have held as under: 16. In the system of Indian Democratic Governance as contemplated by the Constitution senior officers occupying key positions such as Secretaries are not 60 supposed to mortgage there own discretion, volition and decision making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a Government servant. No Government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. In Anirudhsinhji Jadeja (1995) 5 SCC 302 : (1995 AIR SCW 3543 : AIR 1995 SC 2390), this Court has held that a statutory authority vested with Jurisdiction must exercise it according to its own discretion; discretion exercised under the direction or instruction of some higher authority is failure to exercise discretion altogether. Observations of this Court in the Purtabpur Company Ltd., AIR 1970 SC 1896, are instructive and apposite. Executive officers may in exercise of their statutory discretions take into account considerations of public policy and in some context policy of Minister or the Government as a whole when it is a relevant factor in weighing the policy but they are not absolved from their duty to exercise their personal Judgment in individual cases unless explicit statutory provision has been made for instructions by a superior to bind them. As already stated we are not recording, for want of adequate material, any positive finding that the impugned order was passed at the behest of or dictated by someone else than its author. Yet we have no hesitation in holding that the impugned order betrays utter non- application of mind to the facts of the case and the relevant law. The manner in which the power under S. 22 has been exercised by the competent authority is suggestive of betrayal of the confidence which the State Government reposed in the Principal Secretary in conferring upon him the exercise of drastic power like removal of President of a Municipality under S. 22 of the Act. To say the least what has been done is not what is expected to be done by a senior official like the Principal Secretary of a wing of the State Government. We leave at that and say no more on this issue. 61 52. In the instant case also State Mission Director was required to evaluate the data and thereafter place the same before the High Powered Steering Committee for approval. He has abdicated his powers and this establishes that he has acted at the behest of superior officers without applying his own mind as is reflected from the minutes of the meeting held on 29.7.2015. 53. Their Lordships of the Hon'ble Supreme Court in Haryana Financial Corpn. V. Jagdamba Oil Mills reported in (2002) 3 SCC 496, have held that the Court cannot substitute its judgment for the judgment of administrative authorities in such cases. Only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, can the Court intervene. Their lordships have held as under: 10. The obligation to act fairly on the part of the administrative authorities was envolved to ensure the rule of law and to prevent failure of justice. This doctrine is complementary to the principles of natural justice which the quasi-judicial authorities are bound to observe. It is true that the distinction between a quasi-judicial and the administrative action has become thin, as pointed out by this Court as far back as 1970 in A. K. Kraipak v. Union of India (1969 (2) SCC 262). Even so the extent of judicial scrutiny/judicial review in the case of administrative action cannot be larger than in the case of quasi- judicial action. If the High Court cannot sit as an appellate authority over the decisions and orders of quasi-judicial authorities, it follows equally that it cannot do so in the case of administrative authorities. In the matter of administrative action, it is well 62 known, more than one choice is available to the administrative authorities; they have a certain amount of discretion available to them. They have \"a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred\". [As per Lord Diplock in Secretary of State for Education and Science v. Metropolitan Borough Counsel of Tameside (1977 AC 1014). The Court cannot substitute its judgment for the judgment of administrative authorities in such cases. Only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, can the Court intervene. To quote the classic passage from the judgment of Lord Greene M. R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1947 (2) All ER 680) : \"It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with the discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority.\" 54. Their Lordships of the Hon'ble Supreme Court in Anil Ratan Sarkar v. Hirak Ghosh reported in (2002) 4 SCC 21, have held that the most accepted methodology of Government working ought always to be fairness and in the event of its absence, law Courts would be within its jurisdiction to deal with the matter appropriately. Their lordships have held as under: 63 [1] The most accepted methodology of Government working ought always to be fairness and in the event of its absence, law Courts would be within its jurisdiction to deal with the matter appropriately. This proposition is so well settled that we need not dilate further on to this. It is this concept of fairness which Mr. Ganguli, appearing in support of the petition for contempt very strongly contended, is totally absent in spite of three final rounds of litigation upto this Court between the parties. Mr. Bhaskar Gupta, learned senior advocate appearing for the alleged contemnors, however, contended that the conduct of the respondents can neither be termed to be unfair or in disregard to the orders of the Court on a true reading of the order - this stand of the respondents, however, stands negated by Mr. Ganguli. The conduct, Mr. Ganguli, contended, is not only deliberate but utterly perverse and in grossest violation of the orders of this Court and by reason therefor the fruit of the litigation has not yet been made available and being decried to the petitioner for one reason or the other for the last about 15 years. Incidently, it would be convenient to note that the principal issue involved in the matter pertains to the entitlement of the petitioners to the scale equivalent to that of Physical Instructors in the scale of Rs. 700-1600 as on 2nd July, 1984 and Rs. 2200-4000 w.e.f. 1986. 55. Their Lordships of the Hon'ble Supreme Court in State of NCT of Delhi v. Sanjeev reported in (2005) 5 SCC 181, have held that the administrative action is stated to be referable to broad area of Governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi-legislative and quasi-judicial nature. The scope of judicial review of administrative orders is rather limited. The consideration is limited to the legality of decision-making process and not legality of the order per se. Mere possibility of another view cannot be ground for interference. It is further held that that exercise of 64 power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary. Their lordships have held as under: [14] As regards the period, it was held that it is primarily for the externing authority to decide how best the order can be made effective, so as to subserve its real purpose. How long within the statutory limit of two years fixed by Section 58, the order shall operate and to what territories, within the statutory limitations of Section 58 it should extend are matters which must depend upon his decision on the nature of the data which the authority is able to collect in the externment proceedings. No general formulation can be made that order of externment must always be restricted to the area to which the illegal activities of the externee extend. There can be doubt that the executive order has also to show when questioned that there was application of mind. It is the existence of material and not the sufficiency of material which can be questioned as the satisfaction is primarily subjective somewhat similar to one required to be arrived at by the detaining authority under the preventive detention laws. The scope of judicial review of administrative orders is rather limited. The consideration is limited to the legality of decision-making process and not legality of the order per se. Mere possibility of another view cannot be ground for interference. [15] One of the points that falls for determination is the scope for judicial interference in matters of administrative decisions. Administrative action is stated to be referable to broad area of Governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi-legislative and quasi-judicial nature. It is trite law that exercise of power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary (See State of U. P. and Ors. v. Renusagar Power Co. and Ors. At one time, the traditional view in England was that the 65 executive was not answerable where its action was attributable to the exercise of prerogative power. Professor De Smith in his classical work judicial Review of Administrative Action\" 4th Edition at pages 285-287 states the legal position in his own terse language that the relevant principles formulated by the courts may be broadly summarized as follows. The authority in which discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been authorized to do. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. These several principles can conveniently be grouped in two main categories: (i) failure to exercise a discretion, and (ii) excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body it acts ultra vires. [16] The present trend of judicial opinion is to restrict the doctrine of immunity from judicial review to those classes of cases which relate to deployment of troupes, entering into international treaties, etc. The distinctive features of some of these recent cases signify the willingness of the courts to assert their power to scrutinize the factual basis upon which discretionary powers have been exercised. One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground is 'illegality' the second 'irrationality', 66 and the third 'procedural impropriety'. These principles were highlighted by Lord Diplock in Council of Civil Service Unions v. Minister for the civil Service. (commonly known as CCSU case). If the power has been exercised on a non- consideration or non-application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated. (See Commissioner of Income-tax v. Mahindra and Mahindra Ltd. ) The effect of several decisions on the question of jurisdiction has been summed up by grahame Aldous and John Alder in their book \"applications for Judicial Review, Law and Practice\" thus: \"There is a general presumption against ousting the jurisdiction of the Courts, so that statutory provisions which purport to exclude judicial review are construed restrictively. There are, however, certain areas of governmental activity, national security being the paradig, which the Courts regard themselves as incompetent to investigate, beyond an initial decision as to whether the government's claim is bona fide. In this kind of non-justiciable area judicial review is not entirely excluded, but very limited. It has also been said that powers conferred by the Royal Prerogative are inherently unreviewable but since the speeches of the House of Lords in council of Civil Service Unions v. Minister for the Civil Service this is doubtful. Lords Diplock, Seaman and Roskili appeared to agree that there is no general distinction between powers, based upon whether their source is statutory or prerogative but that judicial review can be limited by the subject matter of a particular power, in that case national security. Many prerogative powers are in fact concerned with sensitive, non-justiciable areas, for example, foreign affairs, but some are reviewable in principle, including the prerogatives relating to the civil service where national security is not 67 involved. Another non-justiciable power is the Attorney General's prerogative to decide whether to institute legal proceedings on behalf of the public interest. \" (Also see Padfield v. Minister of Agriculture, Fisheries and Food). [19] Before summarizing the substance of the principles laid down therein we shall refer to the passage from the judgment of lord Greene in Associated Provincial picture Houses Ltd. v. Wednesbury corpn. 2. It reads as follows: \".. . . It is true that discretion must be exercised reasonably. Now what does that mean? lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers the authority. . In another, it is taking into consideration extraneous matters. It is unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another. \"lord Greene also observed (KB p. 230: All ERp. 683) \".. . It must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body can come to. It is not what the court considers unreasonable. . . The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another. \" (emphasis supplied) THEREFORE, to arrive at a decision on \"reasonableness\" the Court has to find out if the administrator has left out relevant factors or taken into account 68 irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the Choice and not for the Court to substitute its view. [21] In other words, to characterize a decision of the administrator as \"irrational\" the court has to hold, on material, that it is a decision \"so outrageous'' as to be in total defiance of logic or moral standards. Adoption of \"proportionality\" into administrative law was left for the future. [22] These principles have been noted in aforesaid terms in Union of India and Anr. v. G. Ganayutham In essence, the test is to see whether there is any infirmity in the decision making process and not in the decision itself. (See Indian Railway Construction Co. Ltd. v. Ajay Kumar). 56. Their Lordships of the Hon'ble Supreme Court in Punjab SEB Ltd. v. Zora Singh reported in (2005) 6 SCC 776, have held that there cannot be any doubt whatsoever that even if an order is found to be not vitiated by reason of malice on fact but still can be held to be invalid if the same has been passed for unauthorized purposes, as it would amount to malice in law. Their lordships have held as under: [40] Furthermore, there cannot be any doubt whatsoever that even if an order is found to be not vitiated by reason of malice on fact but still can be held to be invalid if the same has been passed for unauthorized purposes, as it would amount to malice in law. 69 [41] In Smt. S. R. Venkataraman v. Union of India this Court observed: \"it is not therefore the case of the appellant that there was actual malicious intention on the part of the Government in making the alleged wrongful order of her premature retirement so as to amount to malice in fact. Malice in law is however, quite different. Viscount haldane described it as follows in Shearer v. Shields: \"A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently. \" thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause. \" [42] In State of A. P. and Others v. Goverdhanlal Pitti, this Court observed: \"12.The legal meaning of malice is \"ill-will or spite towards a party and any indirect or improper motive in taking an action\". This is sometimes described as \"malice in fact\". \"legal malice\" or \"malice in law\" means \"something done without lawful excuse\". In other words, \"it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard of the rights of others\". (See Words and phrases Legally Defined, 3rd Edn. , London butterworths, 1989. ) 13. Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. If at all it is malice in legal sense, it can be described as an act which is taken with an oblique or indirect object. Prof. Wade in his authoritative work on administrative Law (8th Edn. , at p. 414) based on English decisions and in the context of alleged illegal acquisition proceedings, explains that an action by the State can be described mala fide if it seeks to \"acquire land\" \"for a purpose not authorised by the Act. \"[see also Chairman and MD, BPL Ltd. v. S. P. Gururaja and Others and P. Anjaneyulu v. Chief Manager, A. P. 70 Circle, bharat Sanchar Nigam Ltd. , Govt. of India, Hyderabad and Another ]. 57. Their Lordships of the Hon'ble Supreme Court in Jayrajbhai Jayantibhai Patel v. Anilbhai Nathubhai Patel reported in (2006) 8 SCC 200, have held that in case of misuse of power, Court can interfere. Their lordships have further held that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court. Their lordships have held as under: [18] Having regard to it all, it is manifest that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards but no standardised formula, universally applicable to all cases, can be evolved. Each case has to be considered on its own facts, depending upon the authority that exercises the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society. Though judicial restraint, albeit self-recognised, is the order of the day, yet an administrative decision or action which is based on wholly irrelevant considerations or material; or excludes from consideration the relevant material; or it is so absurd that no reasonable person could have arrived at it on the given material, may be struck down. In other words, when a Court is satisfied that there is an abuse or misuse of power, and its jurisdiction is invoked, it is incumbent on the Court to intervene. It is nevertheless, trite that the scope of judicial review is limited to the deficiency in the decision- making process and not the decision. 71 58. In the present case, laid down procedure has not been followed. There was no discussion in the meeting held on 29.7.2015. 59. Their Lordships of the Hon'ble Supreme Court in Ganesh Bank of Kurundwad Ltd. v. Union of India reported in (2006) 10 SCC 645 have reiterated the grounds of judicial review as under: 51. “13). One of the points that falls for determination is the scope for judicial interference in matters of administrative decisions. Administrative action is stated to be referable to broad area of Governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi- legislative and quasi-judicial nature. It is trite law that exercise of power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary. At one time, the traditional view in England was that the executive was not answerable where its action was attributable to the exercise of prerogative power. Professor De Smith in his classical work \"Judicial Review of Administrative Action\" 4th Edition at pages 285-287 states the legal position in his own terse language that the relevant principles formulated by the Courts may be broadly summarized as follows. The authority in which discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been authorized to do. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote 72 purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. These several principles can conveniently be grouped in two main categories: (i) failure to exercise a discretion, and (ii) excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body it acts ultra vires. [14] The present trend of judicial opinion is to restrict the doctrine of immunity from judicial review to those classes of cases which relate to deployment of troupes, entering into international treaties, etc. The distinctive features of some of these recent cases signify the willingness of the Courts to assert their power to scrutinize the factual basis upon which discretionary powers have been exercised. One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground is 'illegality' the second 'irrationality', and the third 'procedural impropriety'. These principles were highlighted by Lord Diplock in Council of Civil Service Unions V/s. Minister for the Civil Service, (commonly known as CCSU Case). If the power has been exercised on a non-consideration or non-application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated. The effect of several decisions on the question of jurisdiction has been summed up by Grahame Aldous and John Alder in their book \"Applications for Judicial Review, Law and Practice\" thus: There is a general presumption against ousting the jurisdiction of the courts, so that statutory provisions which purport to exclude judicial review are construed restrictively. There are, however, certain areas of governmental activity, national security being the paradig, which the courts regard themselves as incompetent to investigate, beyond an initial decision as to whether the government's claim is bona fide. In this kind of non-justiciable area judicial review is not 73 entirely excluded, but very limited. It has also been said that powers conferred by the Royal Prerogative are inherently unreviewable but since the speeches of the House of Lords in council of civil Service Unions V/s. Minister for the civil Service this is doubtful. Lords Diplock, Scaman and Roskili appeared to agree that there is no general distinction between powers, based upon whether their source is statutory or prerogative but that judicial review can be limited by the subject matter of a particular power, in that case national security. May prerogative powers are in fact concerned with sensitive, non-justiciable areas, for example, foreign affairs, but some are reviewable in principle, including the prerogatives relating to the civil service where national security is not involved. Another non-justiciable power is the Attorney General's prerogative to decide whether to institute legal proceedings on behalf of the public interest. [15] The court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability enumerated above; like illegality, irrationality and procedural impropriety. Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient. [16] The famous case commonly known as \"The Wednesbury's case\" is treated as the landmark so far as laying down various basic principles relating to judicial review of administrative or statutory direction. [17] Before summarizing the substance of the principles laid down therein we shall refer to the passage from the judgement of Lord Greene in Associated Provincial Picture Houses Ltd. V/s. Wednesbury Corporation. It reads as follows: \"...It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what 74 he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers the authority.... In another, it is taking into consideration extraneous matters. It is unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another.\" Lord Greene also observed \"...it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body can come to. It is not what the court considers unreasonable The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another.\" [18] Therefore, to arrive at a decision on \"reasonableness\" the Court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the Court to substitute its view. [19] The principles of judicial review of administrative action were further summarized in 1985 by Lord Diplock in CCSU case as illegality, procedural impropriety and irrationality. He said more grounds could in future become available, including the doctrine of proportionality which was a principle followed by certain other members of the European Economic Community. Lord Diplock observed in that case as follows: \"...Judicial review has I think, developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind 75 particularly the possible adoption in the future of the principle of 'proportionality' which is recognized in the administrative law of several of our fellow members of the European Economic Community.\" Lord Diplock explained \"irrationality\" as follows: \"By 'irrationality' I mean what can by now be succinctly referred to as Wednesbury unreasonableness'. It applies to a decision which is to outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.\" [20] In other words, to characterize a decision of the administrator as \"irrational\" the Court has to hold, on material, that it is a decision \"so outrageous\" as to be in total defiance of logic or moral standards. Adoption of \"proportionality\" into administrative law was left for the future. [21] These principles have been noted in aforesaid terms in Union of India and Anr. V/s. C. Ganayutham. In essence, the test is to see whether there is any infirmity in the decision making process and not in the decision itself. 60. Their Lordships of the Hon'ble Supreme Court in All India Railway Recruitment Board v. K. Shyam Kumar reported in (2010) 6 SCC 614, have explained ‘”Wednesbury and Proportionality”. Their lordships have held that Wednesbury applies to a decision which is so reprehensible in its defiance of logic or of accepted moral or ethical standards that no sensible person. Proportionality, requires the Court to judge whether action taken was really needed as well as whether it was within the range of courses of action which could reasonably be followed. Their lordships have held as under: 76 [36] Wednesbury and Proportionality - Wednesbury applies to a decision which is so reprehensible in its defiance of logic or of accepted moral or ethical standards that no sensible person who had applied his mind to the issue to be decided could have arrived at it. Proportionality as a legal test is capable of being more precise and fastidious than a reasonableness test as well as requiring a more intrusive review of a decision made by a public authority which requires the courts to 'assess the balance or equation' struck by the decision maker. Proportionality test in some jurisdictions is also described as the \"least injurious means\" or \"minimal impairment\" test so as to safeguard fundamental rights of citizens and to ensure a fair balance between individual rights and public interest. Suffice to say that there has been an overlapping of all these tests in its content and structure, it is difficult to compartmentalize or lay down a straight jacket formula and to say that Wednesbury has met with its death knell is too tall a statement. Let us, however, recognize the fact that the current trend seems to favour proportionality test but Wednesbury has not met with its judicial burial and a state burial, with full honours is surely not to happen in the near future. [37] Proportionality, requires the Court to judge whether action taken was really needed as well as whether it was within the range of courses of action which could reasonably be followed. Proportionality is more concerned with the aims and intention of the decision-maker and whether the decision- maker has achieved more or less the correct balance or equilibrium. Courts entrusted with the task of judicial review has to examine whether decision taken by the authority is proportionate, i.e. well balanced and harmonious, to this extent court may indulge in a merit review and if the court finds that the decision is proportionate, it seldom interferes with the decision taken and if it finds that the decision is disproportionate i.e. if the court feels that it is not well balanced or harmonious and does not stand to reason it may tend to interfere. 77 [38] Leyland and Anthony on Textbook on Administrative Law (5th edn. OUP, 2005) at p.331 has amply put as follows: \"Proportionality works on the assumption that administrative action ought not to go beyond what is necessary to achieve its desired results (in every day terms, that you should not use a sledgehammer to crack a nut) and in contrast to irrationality is often understood to bring the courts much closer to reviewing the merits of a decision\". [39] Courts have to develop an indefeasible and principled approach to proportionality till that is done there will always be an overlapping between the traditional grounds of review and the principle of proportionality and the cases would continue to be decided in the same manner whichever principle is adopted. Proportionality as the word indicates has reference to variables or comparison, it enables the Court to apply the principle with various degrees of intensity and offers a potentially deeper inquiry into the reasons, projected by the decision maker. 61. Their Lordships of the Hon'ble Supreme Court in East Coast Railway v. Mahadev Appa Rao reported in (2010) 7 SCC 678 have held that arbitrariness in the making of an order by an authority can manifest itself in different forms. Non-application of mind by the authority making the order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. Their lordships have held as under: 23. Arbitrariness in the making of an order by an authority can manifest itself in different forms. Non- application of mind by the authority making the order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. This may be evident from the order itself or the record 78 contemporaneously maintained. Application of mind is best demonstrated by disclosure of mind by the authority making the order. And disclosure is best done by recording the reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained is clearly suggestive of the order being arbitrary hence legally unsustainable. 30. We may hasten to add that while application of mind to the material available to the competent authority is an essential pre-requisite for the making of a valid order, that requirement should not be confused with the sufficiency of such material to support any such order. Whether or not the material placed before the competent authority was in the instant case sufficient to justify the decision taken by it, is not in issue before us. That aspect may have assumed importance only if the competent authority was shown to have applied its mind to whatever material was available to it before cancelling the examination. Since application of mind as a thresh- hold requirement for a valid order is conspicuous by its absence the question whether the decision was reasonable having regard to the material before the authority is rendered academic. Sufficiency or otherwise of the material and so also its admissibility to support a decision the validity whereof is being judicially reviewed may even otherwise depend upon the facts and circumstances of each case. No hard and fast rule can be formulated in that regard nor do we propose to do so in this case. 62. Members of HPSC have not applied mind as per the letter and spirit of the guidelines and material placed on record by all the stake-holders. 63. Their Lordships of the Hon'ble Supreme Court in Kranti Associates (P) Ltd. v. Masood Ahmed Khan reported in 79 (2010) 9 SCC 496 have laid down principles on the recording of reasons in para-47 as under: 47. Summarizing the above discussion, this Court holds: a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. b. A quasi-judicial authority must record reasons in support of its conclusions. c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations. f. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. g. Reasons facilitate the process of judicial review by superior Courts. h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice. i. Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. j. Insistence on reason is a requirement for both judicial accountability and transparency. k. If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. l. Reasons in support of decisions 80 must be cogent, clear and succinct. A pretence of reasons or 'rubber-stamp reasons' is not to be equated with a valid decision making process. m. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737). n. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See 1994 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford,2001 EWCA 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, \"adequate and intelligent reasons must be given for judicial decisions\". o. In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of \"Due Process\". 64. Their lordships of the Hon’ble Supreme Court in the case of Vijaya Devi Naval Kishore Bhartia and another vrs. Land Acquisition Officer and another, reported in (2003) 5 SCC 83, have held that “approval” does not mean anything more than either confirming, ratifying, assenting, sanctioning or consenting. It has been held as follows: “9. From the Scheme of the Act, it is seen that the power of inquiry under Section 11 vests with the Collector who has to issue notice to the interested persons and hear the interested persons in the said inquiry. He also has to determine the measurements of the land in question and on the basis of material on record decide the compensation which in his opinion should be allowed for the 81 land and if need be, he can also apportion the said compensation amongst the interested persons. The nature of inquiry which statutorily requires the interested parties of being heard and taking a decision based on relevant factors by the Collector shows the inquiry contemplated under Section 11 is quasi-judicial in nature, and the said satisfaction as to the compensation payable should be based on the opinion of the Collector and not that of any other person. Section 11 under the Act has not provided an appeal to any other authority as against the opinion formed by the Collector in the process of inquiry conducted by him. What is provided under the proviso to Section 11(1) is that the proposed award made by the Collector must have the approval of the appropriate Government or such officer as the appropriate Government may authorise in that behalf. In our opinion, this power of granting or not granting previous approval cannot be equated with an appellate power. Black's Law Dictionary, 6th Edition, defines 'approval' to mean an act of confirming, ratifying, assenting, sanctioning or consenting to some act or thing done by another. In the context of an administrative act, the word 'approval' in our opinion, does not mean anything more than either confirming, ratifying, assenting, sanctioning or consenting. It will be doing violence to the Scheme of the Act if we have to construe and accept the argument of learned counsel for the respondents that the word approval found in the proviso to Section 11(1) of the Act under the Scheme of the Act amounts to an appellate power. On the contrary, we are of the opinion that this is only an administrative power which limits the jurisdiction of the authority to apply his mind to see whether the proposed award is acceptable to the Government or not. In that process for the purpose of forming an opinion to approve or not to approve the proposed award the Commissioner may satisfy himself as to the material relied upon by the Collector but he cannot reverse the finding as if he is appellate authority for the purpose of remanding the matter to the Collector as can be done by an appellate authority; much less can the Commissioner exercising 82 the said power of prior approval give directions to the statutory authority in what manner he should accept/appreciate the material on record in regard to the compensation payable. If such a power of issuing direction to the Collector by the Commissioner under the provision of law referred to hereinabove is to be accepted then it would mean that the Commissioner is empowered to exercise the said power to substitute his opinion to that of the Collector's opinion for the purpose of fixing the compensation which in our view is opposed to the language of Section 11 of the Act. Therefore, we are of the opinion that the Act has not conferred an appellate jurisdiction on the Commissioner under Section 15(1) proviso of the Act. This conclusion of ours is further supported by the scheme of the Act and Section 15A of the Act which is also introduced in the Act simultaneously with the proviso to Section 11(1) under Act 68 of 1984. By this amendment, we notice that the Act has given a power akin to the appellate power to the State Government to call for any records or proceedings of the Collector before any award is made, for the purpose of satisfying itself as to the legality or propriety of any finding or order passed or as to the irregularity of such proceedings and to pass such other order or issue such direction in relation thereto as it may think fit. Therefore it is not as if the acquiring authority namely the appropriate Government even if aggrieved by the fixation of compensation by the Collector it has no remedy. It can very well exercise the power under Section 15A and pass such orders as it thinks fit, of course, after affording an opportunity to such person who is likely to be prejudicially affected by such order of the appropriate Government, therefore, it is clear that the statute when it intended to give appellate or revisional power against the finding of the Collector in the fixation of compensation it has provided such power separately in Section 15A of the Act. Therefore, in our opinion, if the Commissioner while considering the proposed award of the Collector under the proviso to Section 11(1) of the Act to grant or not to grant approval if he thinks that the order of the 83 Collector cannot be approved, he can at the most on the administrative side bring it to the notice of the appropriate Government to exercise its power under Section 15A of the Act, but he cannot as in the present case on his own exercise the said power because that power under Section 15A is confined to the appropriate Government only. Therefore we have to negative the argument of Mr. Joshi that it is open to the Commissioner while considering the grant of approval to exercise the power either found in Section 15A of the Act or similar power exercising his jurisdiction under proviso to Section 11(1) of the Act.” 65. Their lordships of the Hon’ble Supreme Court in the case of Ashok Kumar Sahu vrs. Union of India and others, reported in (2006) 6 SCC 704, have explained the expression “approval”, “acceptance” and “ratification” as under: “18. The expression \"approval\" presupposes an existing order. \"Acceptance\" means communicated acceptance. A distinction exists between the expressions \"approval\" and \"acceptance\". Whereas in the latter, an application of mind on the part of the competent authority is sine qua non, approval of an order only envisages statutory entitlement. Approval of an order is required as directed by the statute. It can be given a retrospective effect. Even valid contract comes into being only after the offer is accepted and communicated. Where services of an employee are dispensed with, the order takes effect from the date when it is communicated and not from the date of passing of the order. {See State of Punjab vs. Amar Singh Harika [AIR (1966) SC 1313].} 19. We are, however, not oblivious of the fact that under certain circumstances, the expression, \"approval\" would mean to accept as good or sufficient for the purpose of intent. Ratification is noun, of the verb \"ratify\". It means the act of ratifying, confirmation, and sanction. The expression \"ratify\" means to approve and accept formally. It means to conform, by expressing 84 consent, approval or formal sanction. \"Approve\" means to have or express a favourable opinion of to accept as satisfactory. In the instant case, there was no question of any ratification involved as wrongly assumed by the High Court. {See Maharashtra State Mining Corpn. Vs. Sunil, s/o Pundikarao Pathak [(2006) 5 SCC 96].}” 66. Their lordships of the Hon’ble Supreme Court in the case of Sant Lal Gupta and others vrs. Modern Cooperative Group Housing Society Limited and others, reported in (2010) 13 SCC 336, have held that “approval” means confirming, ratifying, assenting, sanctioning or consenting some act of another. The very act of approval means, the act of passing judgment, the use of discretion and determining as an adjudication therefrom unless limited by the context of the Statute. It has been held as follows: “10. Approval means confirming, ratifying, assenting, sanctioning or consenting to some act or thing done by another. The very act of approval means, the act of passing judgment, the use of discretion, and determining as an adjudication therefrom unless limited by the context of the Statute. (Vide:Vijayadevi Navalkishore Bhartia & Anr. v. Land Acquisition Officer & Anr., (2003) 5 SCC 83).” 67. The State Mission Director has apparently abdicated his authority and has permitted himself to be dictated by the Minister under whom he is working. He should have personally evaluated the data supplied to him and thereafter send it for approval of the High Powered Steering Committee. We reiterate 85 that in the proceedings dated 29.7.2015, it is not stated that primarily the case of the Shimla town has been turned down on the pretext that it has not achieved its objective under the JnNURM Scheme and it has been sanctioned a new Scheme i.e. AMRUT. This ground has been taken in the reply filed by the State. 68. Their Lordships of the Hon’ble Supreme Court in the case of Commissioner of Police, Bombay versus Gordhandas Bhanji reported in AIR 1952 SC 16, have held that it was clear that under rule 250, the Police Commissioner has been vested with the absolute discretion at any time to cancel or suspend any licence which had been granted under the Rules. But the power to do so was vested in him and not the State Government and could only be exercised by him at his discretion. Public orders, publically made, in exercise of a statutory authority can not be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind or what he intended to do. Public authorities can not play fast and loose with the powers vested in them, and persons to whose detriment orders are made, are entitled to know with exactness and precision, what they are expected to do or forebear from doing and exactly what authority is making the order. Their lordships have held as under: 86 “9. An attempt was made by referring to the Commissioner's affidavit to show that this was really an order of cancella- tion made by him and that the order was his.order and not that of Government. We are clear that public orders, public- ly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to hum they are addressed and must be construed objectively with reference to the language used in the order itself. 10. Turning now to the language used, we are clear that by no stretch of imagination can this be construed to be an order which in effect says :-- \"I, so and so, by virtue of the authority vested in me, do hereby order and direct this and that.\" If the Commissioner of Police had the power to cancel the license already grant- ed and was the proper authority to make the order, it was incumbent on him to say so in express and direct terms. Public authorities cannot play fast and loose with the powers vested in them, and persons to whose detriment orders are made are entitled to know with exactness and precision what they are expected to do or forbear from doing and exactly what authority is making the order. 17. It is clear to us from a perusal of these rules that the only person vested with authority to grant or refuse a license for the erection of a building to be used for pur- poses of public amusement is the Commissioner of Police. It is also clear that under Rule 250 he has been vested with the absolute discretion at any time to cancel or suspend any license which has been granted under the rules. But the power to do so is vested in him and not in the State Govern- ment and can only be exercised by him at his discretion. No other person or authority can do it.” 69. Their Lordships of the Hon’ble Supreme Court in the case of Chandrika Jha versus State of Bihar and others reported in (1984) 2 SCC 41 have held that only Registrar was empowered under relevant bye-law to constitute the first Board for a specific period and the Chief Minister was not competent to 87 direct the Registrar to extend that period from time to time. The concerned minister was not competent to direct the Registrar to the manner of constituting the Board by forwarding list of persons to be nominated as members of the Board. Their lordships have held as under: “12. We fail to appreciate the propriety of the Chief Minister passing orders for extending the term of the first Board of Directors. Under the Cabinet system of Government, the Chief Minister occupies a position of pre-eminence and he virtually carries on the governance of the State. The Chief Minister may call for any information which is available to the Minister-in charge of any department and may issue necessary directions for carrying on the general administration of the State Government. Presumably, the Chief Minister dealt with the question as if it were an executive function of the State Government and thereby clearly exceeded his powers in usurping the statutory functions of the Registrar under bye-law 29 in extending the term of the first Board of Directors from time to time. The executive power of the State vested in the Governor under Art. 154 (1) connotes the residual or governmental functions that remain after the legislative and judicial functions are taken away. The executive power includes acts necessary for the carrying on or supervision of the general administration of the State including both a decision as to action and the carrying out of the decision. Some of the functions exercised under \"executive powers\" may include powers such as the supervisory jurisdiction of the State Government under s.65A of the Act. The Executive cannot, however, go against the provisions of the Constitution or of any law. 13. The action of the then Chief Minister cannot also be supported by the terms of s.65A of the Actwhich essentially confers revisional power on the State Government. There was no proceeding pending before the Registrar in relation to any of the matters specified in s.65A of the Act nor had the Registrar passed any order in respect thereto. In the absence of any such proceeding or such order, there was no occasion for the State Government to invoke its powers under s.65A of the Act. In our opinion, the State Government cannot for itself exercise the statutory functions of the Registrar under the Act or the Rules. 70. Their Lordships of the Hon’ble Supreme Court in the case of State of U.P. and others versus Maharaja Dharmander 88 Prasad Singh and others reported in (1989) 2 SCC 505 have held that exercise of power of revoking or cancelling the permission is akin to and partakes of a quasi-judicial complexion. In exercising that power the authority must bring to bear an unbiased mind, consider impartially the objections raised by the aggrieved party and decide the matter consistent with the principles of natural justice. The authority can not permit its decision to be influenced by the dictation of others as this would amount to abdication and surrender of its discretion. Their lordships have also held that relevance of the alleged factors which vitiate the decision making process of the executive should be reviewed by the Court. Their lordships have held as under: “55. It is true that in exercise of powers of revoking or cancelling the permission is akin to and partakes of a quasi- judicial complexion and that in exercising of the former power the authority must bring to bear an unbiased mind, consider impartially the objections raised by the aggrieved party and decide the matter consistent with the principles of natural justice. The authority cannot permit its decision to be influenced by the dictation of others as this would amount to abdication and surrender of its discre- tion. It would then not be the Authority's discretion that is exercised, but someone else's. If an authority \"hands over its discretion to another body it acts ultra vires\". Such an interference by a person or body extraneous to the power would plainly be contrary to the nature of the power conferred upon the authority. De Smith sums up the position thus: \"The relevant principles formulated by the courts may be broadly summarised as follows. The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. 89 In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it: it must not act under the dictation of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion it must not do what it has been forbidden to do, nor must it do what it has not been authorised to do. It must act in good faith, must have regard to all relevant considerations and must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. Nor where a judgment must be made that certain facts exist can a discretion be validly exercised on the basis of an erroneous assumption about those facts. These several principles can conven- iently be grouped in two main categories: failure to exercise a discretion, and excess or abuse of discretionary power. The two classes are not, however, mutually exclusive.\" 56. But the question is whether the issue of the show cause notice or the subsequent decision to cancel could be said to have been made at the behest or compulsion of Gov- ernment. Shri Sorabjee refers to paragraphs 17 and 18 of Shri Kamal Pandey's letter dated 15.10.1985. We are not sure that this is a correct understanding of the position. The High Court did not see any casual connection between the Government's directive dated 15.10.1985 and the proceedings initiated by the Vice-Chairman on 9.1.1986. The High Court was of the view that directive confined itself to the can- cellation of the lease and as incidental thereto, required the stoppage of work pending decision whether the lease should be cancelled or not. This infact, was the basis for holding that the Vice-Chairman had no power to cancel. Lessees do not rely upon any subsequent directive to the ViceChairman from the Government in the matter of revocation of the permission. The earlier directive dated 12.8.1985 from the Government to the Vice-Chairman spent itself out with the then ViceChairman declining to act in accordance with it. There is no material to hold that Sri Govardhan Nair felt himself bound by that directive. Sri 90 Sorabjee's contention based on an alleged surrender of discretion cannot, therefore, be upheld. 57. It has, therefore, to be held that the finding of the High Court that the Vice-Chairman had no competence to initiate proceedings to revoke the permission on the ground that the permission itself had been obtained by misrepresen- tation and fraud and on the ground that there were viola- tions of the conditions of the grant, appear to us to be unsupportable. The contention of the Respondent-Lessees that the show cause notice, dated 9.1.1986 and the cancellation order, dated 19.4.1986, are vitiated by a surrender of a discretion on the part of the Vice- Chairman cannot also be held to be well-founded. Sri Thakur's contention to the contrary on both these points would require to be accepted 60. However, Judicial review under Article 226 cannot be converted into an appeal. Judicial review is directed, not against the decision, but is confined to the examination of the decision making-process. In Chief Constable of the North Wales Police v. Evans, [1982] 1 WLR 1155 refers to the merits-legality distinction in judicial review. Lord Hail- sham said: \"The purpose \"of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the court.\" 62. When the issue raised in judicial review is whether a decision is vitiated by taking into account irrelevant, or neglecting to take into account of relevant, factors or is so manifestly unreasonable that no reasonable authority, entrusted with the power in question could reasonably have made such a decision, the judicial review of the decision making process includes examination, as a matter of law, of the relevance of the factors. In the present case, it is, however, not necessary to go into the merits and relevance of the grounds having regard to the view we propose to take on the point on natural justice. 71. Their lordships of the Hon’ble Supreme Court in State of Bihar v. Subhash Singh reported in (1997) 4 SCC 430, have held that the Constitution has devised permanent bureaucracy as part of the political executive. The normal principle that the 91 permanent bureaucracy is accountable to the political executive is subject to judicial review. The doctrine of \"full faith and credit\" applied to the acts done by the officers and presumptive evidence of regularity of official acts done or performed, is apposite in faithful discharge of duties to elongate public purpose and to be in accordance with the procedure prescribed. The bureaucracy is also accountable for the acts done in accordance with the rules when judicial review is called to be exercised by the Courts. Their lordships have held as under: [3] The Constitution of India is the supreme law of the land, having flown from \"We, the people of India, i.e., Bharat, having solemnly resolved to constitute India into a sovereign, socialist, secular democratic Republic. The sovereign power is distributed among the Legislature, the Executive and the Judiciary with checks and balances but not in water-tight rigid mound. In our democracy governed by the rule of law, the Judiciary has expressly been entrusted with the power of judicial reviews as sentinal in qui vive.Basically judicial review of administrative actions as also of legislation is exercised against the action of the State. Since the State or public authorities act in exercise of their executive or legislative power, they are amenable to the judicial review. The State, therefore, is subject to etat de droit, i.e. the State is submitted to the law which implies that all actions of the State or its authorities and officials must be carried out subject to the Constitution and within the limits set by the law, i.e., constitutionalism. In other words, the State is to obey the law. The more the administrative action in our welfare State expands widely touching the individuals, the more is the scope of judicial review of State action, Judicial review of administrative action is, therefore, an essential part of rule of law. The judicial control on administrative action, thus, affords 92 the Courts to determine not only the constitutionality of the law but also the procedural part of administrative action as a part of judicial review. The Constitution has devised permanent bureaucracy as part of the political executive. By operation of Art. 53 read with Arts. 73 and 74 as well as Art. 154 read with Arts. 163 and 166, the business of the State is carried on in accordance with the rules of business issued by the President/the Governor, as the case may be, or the rules made for the subordinate officers in that behalf. The normal principle that the permanent bureaucracy is accountable to the political executive is subject to judicial review. The doctrine of \"full faith and credit\" applied to the acts done by the officers and presumptive evidence of regularity of official acts done or performed, is apposite in faithful discharge of duties to elongate public purpose and to be in accordance with the procedure prescribed. It is now settled legal position that the bureaucracy is also accountable for the acts done in accordance with the rules when judicial review is called to be exercised by the Courts. The hierarchical responsibility for the decision is their in-built discipline. But the Head of the Department/designated officer is ultimately responsible and accountable to the Court for the result of the action done or decision taken. Despite this, if there is any special circumstance absolving him of the accountability or if someone else is responsible for the action, he needs to bring them to the notice of the Court so that appropriate procedure is adopted and action taken. The controlling officer holds each of them responsible at the pain of disciplinary action. The object thereby is to ensure compliance of the rule of law. 72. Their Lordships of the Hon'ble Supreme Court in Jagdish Prasad v. State of Rajasthan reported in (2011) 7 SCC 789 have held that fairness has to be founded on reasons. Usually, the providing of Reasons demonstrates the concept of reasonableness but where the statutory rules provide the 93 circumstances and criteria, ambit and methods by which the selection should be governed, they would become the yardstick of fairness. 73. Their Lordships of the Hon'ble Supreme Court in Delhi Airtech Services (P) Ltd. v. State of U.P. reported in (2011) 9 SCC 354 have held that the principles of public accountability and transparency in State action are applicable to cases of executive or statutory exercise of power, besides requiring that such actions also not lack bona fides. All these principles enunciated by the Court over a passage of time clearly mandate that public officers are answerable for both their inaction and irresponsible actions. Their lordships have held as under: 212. It was also the duty of respondent No.2 to ensure that the payments were made to the claimants prior to taking of possession but, in any case, it was an unequivocal statutory obligation on the part of the State/Collector to ensure that the payments were made to the claimants in terms of Section 17(1) read with Section 17(3A) prior to taking of possession. No justification whatsoever had been advanced and can be advanced for such an intentional default and the casual attitude of the concerned officers/officials in the State hierarchy. 213. These authorities are instrumentalities of the State and the officers are empowered to exercise the power on behalf of the State. Such exercise of power attains greater significance when it arises from the statutory provisions. The level of expectation of timely and just performance of duty is higher, as compared to the cases where the power is executively exercised in discharge of its regular business. Thus, all administrative norms and principles of fair performance are applicable to them with equal force, 94 as they are to the Government department, if not with a greater rigour. The well established precepts of public trust and public accountability are fully applicable to the functions which emerge from the public servants or even the persons holding public office. 215. The concept of public accountability and performance of functions takes in its ambit, proper and timely action in accordance with law. Public duty and public obligation both are essentials of good administration whether by the State or its instrumentalities. In the case of Centre for Public Interest Litigation & Anr. v. Union of India & Anr, 2005 8 SCC 202, this Court declared the dictum that State actions causing loss are actionable under public law. This is a result of innovation, a new tool with the courts which are the protectors of civil liberties of the citizens and would ensure protection against devastating results of State action. The principles of public accountability and transparency in State action are applicable to cases of executive or statutory exercise of power, besides requiring that such actions also not lack bona fides. All these principles enunciated by the Court over a passage of time clearly mandate that public officers are answerable for both their inaction and irresponsible actions. If what ought to have been done is not done, responsibility should be fixed on the erring officers; then alone, the real public purpose of an answerable administration would be satisfied. 74. Their Lordships of the Hon'ble Supreme Court in Maharashtra Land Development Corpn. v. State of Maharashtra reported in (2011) 15 SCC 616, have laid down grounds for judicial review i.e. Wednesbury principle and proportionality as under: 59. The Wednesbury principle was enunciated by Lord Greene MR in Associated Provincial Picture Houses Limited v. Wednesbury Corporation, 1947 2 AllER 95 680. To quote the learned Judge on the principle enunciated: \"What then are those principles? They are well understood. They are principles which the court looks to in considering any question of discretion of this kind. The exercise of such discretion must be a real exercise of the discretion. If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters. Conversely, if the nature of the subject matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question; the authority must disregard those irrelevant collateral matters.\" 60. However, the Wednesbury principle of reasonableness has given way to the doctrine of proportionality. Through his decision in the celebrated case of Council of Civil Services Unions v. Minister for the Civil Services, 1985 AC 374, Lord Diplock widened the grounds of judicial review. He mainly referred to three grounds upon which administrative action is subject to control by judicial review. The first ground being \"illegality\", the second \"irrationality\" and the third 'procedural impropriety'. He also mentioned that by further development on a case to case basis, in due course, there may be other grounds for challenge. He particularly emphasized the principles of proportionality. Thus, in a way, Lord Diplock replaced the language of 'reasonableness' with that of 'proportionality' when he said: \"By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness'...It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it....\" 61. The principle of proportionality envisages that a public authority ought to maintain a sense of proportion between particular goals and the means employed to achieve those goals, so that administrative action impinges on the individual rights 96 to the minimum extent to preserve public interest. Thus implying that administrative action ought to bear a reasonable relationship to the general purpose for which the power has been conferred. The principle of proportionality therefore implies that the Court has to necessarily go into the advantages and disadvantages of any administrative action called into question. Unless the impugned administrative action is advantageous and in public interest such an action cannot be upheld. At the core of this principle is the scrutiny of the administrative action to examine whether the power conferred is exercised in proportion to the purpose for which it has been conferred. Thus, any administrative authority while exercising a discretionary power will have to necessarily establish that its decision is balanced and in proportion to the object of the power conferred. 65. In Charanjit Lamba vs. Commanding Officer, Southern Command and Ors, 2010 AIR(SC) 2462, it was held that \"The constitutional requirement for judging the question of reasonableness and fairness on the part of the statutory authority must be considered having regard to the factual matrix obtaining in each case. It cannot be put in a straitjacket formula. It must be considered keeping in view the doctrine of flexibility. Before an action is struck down, the court must be satisfied that a case has been made out for exercise of power of judicial review. We are not unmindful of the development of the law that from the doctrine of Wednesbury unreasonableness, the court is leaning towards the doctrine of proportionality....\" 66. The test of proportionality is therefore concerned with the way in which the decision-maker has ordered his priorities, i.e., the attribution of relative importance to the factors in the case. Thus, it is not so much the correctness of the decision that is called into question, but the method to reach the same. In this context, we are to see if the decision of the respondent-State in considering the disputed property to be automatically vested with the Government is commensurate with public interests, in a way that affects individual rights in a minimal way. 97 67. The decision of the Government, as we have elucidated earlier, has been guided by the provisions in the Act, which seek to conserve and protect private forests in the State of Maharashtra that have been facing severe depletion and exploitation. Therefore, the Act, which provides for the vesting of private forests with the Government, does so in the general interests of the public in tune with principles of environmental protection and sustainable development, to which we have alluded at the outset. 69. Therefore, after giving thoughtful consideration to the issues, we find that the appellant has failed to make out any case before us for interference with the orders passed by the High Court. Hence, in the light of the aforesaid issues, principles and precedents in question, we are of the considered opinion that the appeal is without merit and deserves to be dismissed. 75. Their Lordships of the Hon'ble Supreme Court in Sanchit Bansal v. Joint Admission Board reported in (2012) 1 SCC 157, have held that An action is said to be arbitrary and capricious, where a person, in particular, a person in authority does any action based on individual discretion by ignoring prescribed rules, procedure or law and the action or decision is founded on prejudice or preference rather than reason or fact. Their lordships have held as under: 28. An action is said to be arbitrary and capricious, where a person, in particular, a person in authority does any action based on individual discretion by ignoring prescribed rules, procedure or law and the action or decision is founded on prejudice or preference rather than reason or fact. To be termed as arbitrary and capricious, the action must be illogical and whimsical, something without any reasonable explanation. When an action or procedure seeks to achieve a specific objective in furtherance of education in a bona fide manner, by adopting a process which is 98 uniform and non- discriminatory, it cannot be described as arbitrary or capricious or mala fide. 76. Their Lordships of the Hon'ble Supreme Court in Dipak Babaria v. State of Gujarat reported in (2014) 3 SCC 502, have held that The Government must defend its action on the basis of the order that it has passed, and it cannot improve its stand by filing subsequent affidavits. Their lordships have held as under: 64. That apart it has to be examined whether the Government had given sufficient reasons for the order it passed, at the time of passing such order. The Government must defend its action on the basis of the order that it has passed, and it cannot improve its stand by filing subsequent affidavits as laid down by this Court long back in Commissioner of Police, Bombay vs. Gordhandas Bhanji, 1952 AIR(SC) 16 in the following words:- \"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.\" This proposition has been quoted with approval in paragraph 8 by a Constitution Bench in Mohinder Singh Gill vs. Chief Election Commissioner, 1978 1 SCC 405 wherein Krishna Iyer, J. has stated as follows:- \"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the 99 time it comes to court on account of a challenge, get validated by additional grounds later brought out.\" 65. In this context it must be noted that the Revenue Minister's direction merely states that it is a private land, and the Governments letter dated 18.12.2009 speaks of the financial incapability of Inidgold. Neither the letter dated 18.12.2009 from the Government to the Collector, nor the order passed by the Deputy Collector on 15.1.2010 mention anything about: 1. the mineral policy of the Government of Gujarat. 2. the time taking nature of the process of acquiring the land and re- allotting it. 3. That the second sale was under the authority of the Collector available to him under the first proviso to Section 89(1) read with condition no. (4) of the permission dated 1.5.2003 granted to Indigold to purchase the concerned lands. In the absence of any of these factors being mentioned in the previous orders, it is clear that they are being pressed into service as an after- thought. The Government can not be allowed to improve its stand in such a manner with the aid of affidavits. 77. Their Lordships of the Hon'ble Supreme Court in Common Cause v. Union of India reported in (2014) 6 SCC 552, have held that this Court is duty bound to interfere whenever the Government acts in a manner, which is unreasonable and contrary to public interest. Their lordships have held as under: [9] Further, it is the stand of the petitioners that a petition filed in public interest cannot be held to be an adversarial system of adjudication and the petitioners in their case merely brought it to the notice of the Court as to how and in what manner the public interest is being jeopardized by arbitrary and capricious action of the authorities and, therefore, the principle of constructive res judicata cannot be made applicable in each and every public interest litigation, 100 irrespective of the nature of litigation itself and its impact on the society and the larger public interest, which is being served. Placing reliance on the reasoning rendered in the aforesaid verdict the objection raised herein stands overruled. [19] Although, as asserted by the respondents herein that it is not the prima facie jurisdiction of this Court to examine what constitutes as \"public purpose\" or not however, as per judicial precedents in Kasturi Lal Lakshmi Reddy and other case laws as stated above, this Court is duty bound to interfere whenever the Government acts in a manner, which is unreasonable and contrary to public interest. In succinct, the Government cannot act in a manner, which would benefit a private party at the cost of the State; such an action would be both unreasonable and contrary to public interest. The present writ petitions challenge the Government advertisements of political nature at the cost of the public exchequer on the ground that they are in violation of Articles 14 and 21 of the Constitution. We shall examine and scrutinize the situation as portrayed by the petitioners as to whether there is need for specific guidelines to be issued by this Court to regulate the same. 78. The State Mission Director has acted mechanically and blindly not even prima facie satisfying himself whether the criteria laid down has been followed by the ULBs. The entire exercise seems to be a formality. The decision has been taken in non-transparent, opaque and tainted manner. The proceedings dated 15.7.2015 and 29.7.2015 are merely an eye wash. The proceedings have not been authenticated. No authority has put their signatures on the proceedings dated 15.7.2015 as well as 29.7.2015 as per the record made available to us. Now, as far as the proceedings dated 29.7.2015 are concerned, there is an 101 attendance chart, but there is no attendance chart for the meeting held on 15.7.2015. The decision taken is unfair. There is procedural impropriety besides irrationality and capriciousness. Initially, it was stated that the meeting could not be convened due to shortage of time but the meeting was convened at 4.00 pm on 29.7.2015. Though, it has come in the noting portion that the members be informed telephonically but it was an impossible situation since no officer except from Shimla or surrounding could attend the meeting at 4.00 pm. We are unable to understand why there was tearing hurry to complete the proceedings on 29.7.2015 itself when it was open to seek further extension from respondents No. 1 and 2 for identifying smart city. Greater the power to decide, higher is the responsibility to be just and fair. Every officer in the hierarchy of the State by virtue of his being public officer or public servant is accountable for his decisions to the public as well as to the State. The Principles of public accountability and transparency in State action are applicable to the cases of executive or statutory exercise of power. 79. In the instant case, the High Powered Committee has ignored the relevant considerations in its meeting held on 29.7.2015. The Committee was required to consider the entire gamut on the basis of the guidelines framed instead of being dictated. The manner in which the proceedings have been held, 102 including the meeting on 15.7.2015 and 29.7.2015, smacks of bad faith. We have already considered at depth that the State Mission Director has not evaluated the Form-II received from the ULBs. He has not placed it before the High Powered Steering Committee for approval. The notings reveal that earlier it was suggested that the meeting could not have been held on 29.7.2015, but the same was held on the same day in a hush-hush and hurried manner The members of the Committee were not even informed. The purpose of High Powered Committee was to have broad based discussion. The petitioner has also alleged specific mala fides against the Minister concerned, but he has not been made party. However, there is sufficient material to reflect that there is malice in the proceedings. It also amounts to colourable exercise of power since the power vested in the Members of the Committee has been used for the purpose, other than for which it was supposed to be. The State Mission Director has abdicated/surrendered his powers by not at all evaluating the self appraisal sent by the Urban Local Bodies, as if, he was being dictated by some other agency. 80. The proceedings dated 15.7.2015 and 29.7.2015 are also arbitrary, unreasonable, capricious and irrational. The powers vested in the bureaucracy must be exercised in larger public interest and not to serve the private interest of any 103 individual in the hierarchy. There must be fairness and reasonableness while forming the opinion. The power vested in the High Powered Committee has been used for improper and ulterior purposes. There is misdirection of fact and law, both, by the High Powered Committee. There is non-application of mind by all the Members of the Committee since they have not even insisted for the production of the material before them after evaluation by the State Mission Director. Members like Mayor of Shimla town, Joint Secretary (UD) and others have been left out from the deliberations. The meeting was to be convened by giving sufficient time to all the stakeholders to be present in the meeting, including the nominee of the Central Government. The High Powered Committee was supposed to approve the evaluation undertaken by the Mission Director, as per the Scheme of the Act. The Committee has usurped the powers of State Mission Director by straightway taking up the matter without the evaluation placed before it. It is a classic case of blatant abuse of power by the various functionaries of the State by considering extraneous considerations and overlooking the basic issues. Key responsibilities of the HPSC, as per Notification dated 25.6.2015 (annexure P-7) were to provide guidance to the mission and provide State level platform for exchange of ideas pertaining to development of smart cities, to oversee the process of first stage 104 intra-state competition of the basis of stage criteria and to review the SCPs and send to the MoUD for participation in the challenge. It has failed to discharge its responsibilities even as per Notification dated 25.6.2015 (annexure P-7). 81. The officers should never surrender their discretion. Their lordships in Tarlochan Dev Sharma v. State of Punjab reported in (2001) 6 SCC 260 have held that the Secretaries are not supposed to mortgage there own discretion, volition and decision making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. It is high time to come out of syndrome of ‘to be or not to be’. Bureaucrats should take independent decisions in the letter and spirit of the constitutional scheme in order to strengthen the democracy. Following the dictates of politicians without due application of mind would erode the democracy. They must have the courage to stand up and not to bend in order to uphold the ‘rule of law’. They should take independent decisions as per their own judgment. 82. Accordingly, in view of the analysis and discussion made hereinabove, the present writ petition is allowed. The proceedings of first meeting held on 15.7.2015 and 2nd meeting held on 29.7.2015 of the State Level High Powered Steering Committee (HPSC) and communications 105 dated 30.7.2015 and 31.7.2015 sent to the Government of India as well as Annexure P-2 dated 27.8.2015 are quashed and set aside and also all the consequential proceedings and decisions including submission of DPR by the State Government to the Government of India. Respondent Nos. 3 and 4 are directed to redo the entire exercise as per the observations made hereinabove in letter and spirit of the Mission Statement and Guidelines for selecting Smart Cities Mission within two weeks and thereafter respondents No. 3 and 4 shall forthwith send new recommendations to respondents No.1 and 2. Respondent Nos. 1 and 2 are further directed to treat it as a special case and process the same with other applicants. 83. Alas! The decision to exclude Shimla city and include, Dharamshala town, in the list of potential Smart Cities, has not been taken ‘smartly’. (Rajiv Sharma) Judge (Sureshwar Thakur) Judge December 17, 2015 (vikrant) "