In Akhil Bhartiya Upbhokta Congress v. State of M.P

We have heard learned counsel for the parties. The appellants are the beneficiaries of the fishery on government proper ty without any authority of law. The argument raised is that since the appellant s have been taking advantage of the fishery, they have the right to continue to do so. We are unable to accept this submission. Government property has to be d ealt with in accordance with law as directed by the learned Single Judge. The v iew taken by learned Single Judge is based on settled law, recently reiterated b y Hon’ble Supreme Court in Centre for Public Interest Litigation and others -Vs. - Union of India and others, (2012)3 SCC 1, as follows :- (cid:28)75. The State is empowered to distribute natural resources. However, as they co nstitute public property/national asset, while distributing natural resources th e State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public int erest. Like any other State action, constitutionalism must be reflected at every stage of the distribution of natural resources. In Article 39(b) of the Constit ution it has been provided that the ownership and control of the material resour ces of the community should be so distributed so as to best subserve the common good, but no comprehensive legislation has been enacted to generally define natu ral resources and a framework for their protection. Of course, environment laws enacted by Parliament and State Legislatures deal with specific natural resource s i.e. forest, air, water, coastal zones, etc. & & & & &

85. As natural resources are public goods, the doctrine of equality, which emerg es from the concepts of justice and fairness, must guide the State in determinin g the actual mechanism for distribution of natural resources. In this regard, th e doctrine of equality has two aspects: first, it regulates the rights and oblig ations of the State vis-à-vis its people and demands that the people be granted equitable access to natural resources and/or its products and that they are adeq uately compensated for the transfer of the resource to the private domain; and s econd, it regulates the rights and obligations of the State vis-à-vis private pa rties seeking to acquire/use the resource and demands that the procedure adopted for distribution is just, non-arbitrary and transparent and that it does not di scriminate between similarly placed private parties.

86. In Akhil Bhartiya Upbhokta Congress v. State of M.P, (2011) 5 SCC 29, this C ourt examined the legality of the action taken by the Government of Madhya Prade sh to allot 20 acres of land to an institute established in the name of Kushabha u Thakre on the basis of an application made by the Trust. One of the grounds on which the appellant challenged the allotment of land was that the State Governm ent had not adopted any rational method consistent with the doctrine of equality . The High Court negatived the appellant’s challenge. Before this Court, the lea rned Senior Counsel appearing for the State relied upon the judgments in Ugar Su gar Works Ltd. v. Delhi Admn. (2001) 3 SCC 635, State of U.P. v. Chaudhari Ran B eer Singh, (2008) 5 SCC 550, State of Orissa v. Gopinath Dash, (2005) 13 SCC 495 and Meerut Development Authority v. Assn. of Management Studies, (2009) 6 SCC 1 71 and argued that the Court cannot exercise the power of judicial review to nul lify the policy framed by the State Government to allot nazul land without adver tisement.

87. This Court rejected the argument, referred to the judgments in Ramana Dayara m Shetty v. International Airport Authority of India (1979) 3 SCC 489, S.G. Jais inghani v. Union of India, AIR 1967 SC 1427, Kasturi Lal Lakshmi Reddy v. State of J&K, (1980) 4 SCC 1, Common Cause v. Union of India, (1996) 6 SCC 530, Shrile kha Vidyarthy v. State of U.P, (1991) 1 SCC 212, LIC v. Consumer Education and R esearch Centre, (1995) 5 SCC 482 and New India Public School v. HUDA, (1996) 5 S CC 510 and held: (Akhil Bhartiya Upbhokta Congress case (2011) 5 SCC 29, SCC p. 60, para 65) (cid:28)65. What needs to be emphasised is that the State and/or its agencies/instrumen talities cannot give largesse to any person according to the sweet will and whim s of the political entities and/or officers of the State. Every action/decision of the State and/or its agencies/ instrumentalities to give largesse or confer b enefit must be founded on a sound, transparent, discernible and well-defined pol icy, which shall be made known to the public by publication in the Official Gaze tte and other recognised modes of publicity and such policy must be implemented/ executed by adopting a non-discriminatory and non-arbitrary method irrespective of the class or category of persons proposed to be benefited by the policy. The distribution of largesse like allotment of land, grant of quota, permit licence, etc. by the State and its agencies/instrumentalities should always be done in a fair and equitable manner and the element of favouritism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular func tionary or officer of the State. (cid:29)

88. In Sachidanand Pandey v. State of W.B. (1987) 2 SCC 295, the Court referred to some of the precedents and laid down the following propositions: (SCC p. 330, para 40) (cid:28)40. & State-owned or public-owned property is not to be dealt with at the absol ute discretion of the executive. Certain precepts and principles have to be obse rved. Public interest is the paramount consideration. One of the methods of secu ring the public interest, when it is considered necessary to dispose of a proper ty, is to sell the property by public auction or by inviting tenders. Though tha t is the ordinary rule, it is not an invariable rule. There may be situations wh ere there are compelling reasons necessitating departure from the rule but then the reasons for the departure must be rational and should not be suggestive of d iscrimination. Appearance of public justice is as important as doing justice. No thing should be done which gives an appearance of bias, jobbery or nepotism. (cid:29)

89. In conclusion, we hold that the State is the legal owner of the natural reso urces as a trustee of the people and although it is empowered to distribute the same, the process of distribution must be guided by the constitutional principle s including the doctrine of equality and larger public good. (cid:29) In view of above, the appeal is dismissed with costs quantified at Rs.on e lakh. The amount is quantified having regard to the fact that the appellants h ave illegally derived benefits from the fishery in question which may be liable to be restored. The amount of costs will not debar proceedings for quantificatio n and recovery of the benefit derived by the appellants.