IMPORTANT POINT
Though the State cannot escape its liability to show its actions to be fair, reasonable and in accordance with law, yet wherever challenge is thrown to any of such action, initial burden of showing the prima facie existence of violation of the mandate of the Constitution lies upon the person approaching the Court.

Headnote:Pleadings-Writ petition-Writ appeal-Argument on issue outside pleadings-Permissibility of-No basis laid in writ petition-Argument raised not referable to any pleadings-Dismissal of writ petition-Appeal before Division Bench-Issue specifically raised but has no basis in pleadings in writ petition-Dismissal-Appeal to Supreme Court-Plea for decision on issue-Not tenable-Appeal before Division Bench of High Court and before Supreme Court being in continuation of original proceedings in form of writ petition cannot enlarge scope of enquiry. (Para 12)
       (ii) Constitution of India-Article 299 r/w Article 14-State largesse-Disposal of-Allegation of arbitrariness-Burden of proof-Initial burden of prima facie existence of violation of mandate of Constitution lies upon person approaching Court-Floting tender or public auction would generally be sure method of granting compliance of mandate of Article 14-Non-floting of tenders or not holding auction would not in all cases deemed to be result of exercise of exclusive power in arbitrary manner.
       Though the State cannot escape its liability to show its actions to be fair, reasonable and in accordance with law, yet wherever challenge is thrown to any of such action, initial burden of showing the prima facie existence of violation of the mandate of the Constitution lies upon the person approaching the Court. There cannot be any dispute with the proposition that generally when any State land is intended to be transferred or the State largesse decided to be conferred, resort should be had to public auction or transfer by way of inviting tenders from the people. That would be a sure method of guaranteeing the compliance of mandate of Article 14 of the Constitution. Non-floating of tenders or not holding of public auction would not in all cases be deemed to be the result of the exercise of the executive power in an arbitrary manner. Making an exception to the general rule could be justified by the State executive, if challenged in appropriated proceedings. The Constitutional Courts cannot be expected to presume the alleged irregularities, illegalities or unconstitutionality nor the courts can substitute their opinion for the bona fide opinion of the State executive. The courts are not concerned with the ultimate decision but only with the fairness of the decision making process. The Government is entitled to make pragmatic adjustments and policy decision which may be necessary or called for under the prevalent peculiar circumstances. The court cannot strike down a policy decision taken by the Government merely because it feels that another decision would have been fairer or wiser or more scientific or logical. (Paras 17 & 18)
       Where the State Government leased out, surplus land acquired for a project, through private negotiation and to justify their action of entering into an argument of lease negotiation the State had submitted that the entire transaction of granting the lease to the respondent No. 5 for an integrated food processing unit with an abattoir in a semi-rural area, which was a low lying land, despite their best efforts, the State Government were unable to set up any project and the lease was given to respondent No. 5 upon consideration of all the facts and circumstances with the object of setting up an industry in the State of West Bengal which was likely to generate employment to more than 300 persons and earn foreign exchange worth more than Rs. 50 crores and the negotiations were resorted to ensure the disposal of the slaughter house at Durgapur which was proved to have been running in losses but the respondent-State had failed to get any buyer for Durgapur Project despite Newspaper advertisements, it was held that in view of the peculiar facts and circumstances of the case we are not persuaded to hold that the action of the respondent-State in executing the lease deed with respondent No. 5 was unreasonable, illegal, arbitrary or actuated by extraneous considerations.

JUDGMENT

Sethi, J.-Leave granted.

2. Claiming to be the champions to the cause of vegetarians, the Appellant Nos. 5 and 6 along with the heirs of the erstwhile land owners, Appellant Nos. 1 to 4 herein, moved the High Court by way of a writ petition, filed in public interest with prayer for the issuance of a writ in the nature of mandamus commanding the respondents to forbear from using or utilising the acquired lands for the purposes other than the one for which the acquisition was made. It was further prayed that directions be issued to give back the lands in question to the erstwhile land owners or to sell the land by public auction only for the public purpose. Prayer for the issuance of writ of prohibition was also made for restraining the respondents to use the land for slaughter house or abattoir by respondent No. 5. Pending adjudication of the main petition an injunction was prayed for restraining the respondents from using or utilising any part of portion of land in question for any slaughter house/abattoir and restraining the respondent No. 4 from allowing respondent No. 5 to establish or operate any slaughter house/abattoir on the land in question. Vide order dated 25.5.1988, the learned Single Judge of the High Court dismissed the writ petition and the appeal filed against the order of the learned Single Judge was dismissed by the Division Bench of the Calcutta High Court vide the judgment impugned in this appeal.

3. The facts leading to the filing of the present appeal are that by notification dated 22nd August, 1961 issued under the Land Acquisition Act, the Government of West Bengal acquired land measuring 151.18 acres for a public purpose, namely, construction of Mourigram-Dankuni Link Project of South-Eastern Railways. After completion of the project, the Railways surrendered the surplus land measuring 77.36 acres to the State Government on 7.7.1972. On 12.5.1973, the State Government handed over the possession of 74.21 acres of the surplus land to Animal Husbandry and Veterinary Services, now Animal Resource Development Department. The West Bengal Livestock Processing Development Corporation was authorised to set up the Mourigram Abattoir Project on this land. In furtherance of the establishment of abattoir, a Memorandum of Understanding was signed between India and Australia by which the Australian Development Assistance Bureau agreed to provide assistance for the establishment of an abattoir, in the year 1977. The consultants of the Australian Development Assistance Bureau prepared a detailed three-volume Feasibility Report stating therein that the Mourigram Project was feasible. By that time the State Government had established another abattoir project at Durgapur which, after commissioning, was running into losses. The appellants apprehended that the State Government, in collusion with some outsiders, was negotiating to sell out and to transfer the land in fiduciary manner exclusively for a profit purpose allegedly to defraud and mislead the people of the State. The private party referred to was Al-Kabeer, a Dubai based concern for the purposes of establishing a slaughter house/abattoir. Some correspondence ensued between the appellants and the respondents 1 to 4. It was contended that the respondents were encroaching upon the Constitutional Rights of the appellants by establishing a slaughter house/abattoir on the land acquired for a specified public purpose. It was submitted that after the completion of the project, the excess land should have been transferred to the land owners or sold in public auction but could not be utilised for any private purpose particularly for the establishment of a slaughter house/abattoir. The petitioners alleged that the establishment of the slaughter house/abattoir was not in conformity with List III Entry 17 of the Seventh Schedule of the Constitution. The action was further alleged to be contrary to List III Entry 17(B) and violative of the mandate of Articles 31(2), 48, 48A

Click Here to Read the rest of this document

2000 Supreme(SC) 1602

Cases Referred (8)