Sukhendu Maity v. The State of West Bengal & Ors.

of holding the public auction, been challenged before this Court. The panchayat samity as an authority and public body has the power to take a policy decision to call for an auction for settlement of the ferry ghat by allowing eligible participants to submit their bids. Such transparent and fair procedure must be adopted by the authority maximization of the revenue, it can earn. The writ court cannot interfere with a policy decision in this regard. The court does not have any authority to either set aside the auction or hold the policy of the panchayat samity to be bad in law, for the following reasons:- a) Judicial review of an administrative decision is permitted only when the decision making authority does not act in accordance with law or acts arbitrarily and with mala fide intentions. In the matter of Tata Cellular v. Union of India, reported in (1994) 6 SCC 651, the Hon’ble Apex Court laid down the following principles with regard to judicial review of administrative action:- judicial (1) The modern trend points to restraint in administrative action.

(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through invitation of the 3 functioning several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body in an administrative sphere or quasi-administrative sphere.

However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration increased and unbudgeted expenditure. b) The auction notice has been issued as a policy decision and the court must refrain from interfering with the policies of the Government. There are no allegations of unreasonableness, arbitrariness and favouritism. The petitioner was himself awarded the settlement through a public auction which was held when the pandemic was in the rise. It is settled law that policy decisions of the State are not to be disturbed unless they are found to be grossly arbitrary or irrational. In the case of Directorate of Film Festivals & Ors. Vs. Gaurav Ashwin Jain & Ors., reported in (2007) 4 SCC 737, the Hon’ble Apex Court held that the scope of judicial review of governmental policy is now well defined.

Courts do not and cannot act as Appellate Authorities examining the correctness, suitability and appropriateness of a policy. Nor are courts advisors to the executive on matters of policy which the executive is entitled to formulate. 4 The scope of judicial review when examining a policy of the government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or is manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review. The scope of judicial review in policy matters is no longer res integra. c) The idea of open auction is to ensure maximization of revenue and the panchayat samity cannot be faulted for having taken a policy decision to go for open auction when the pandemic situation has improved considerably and normalcy has resumed in every aspect of life.

In the matter of The Goa foundation vs. M/s Sesa Sterlite Limited & ors, [Special Leave to Appeal (Civil) No.32138 of 2015] the Hon’ble Apex Court held that, the State was duty bound to adopt the method of auction by giving wide publicity so that all eligible persons can participate in the process. That natural resources could not be alienated by way of largesse and there must be a reciprocal consideration either in the form of earning revenue or sub- serving the common good or both. The State’s endeavour must be towards maximization of revenue returns. 5 In the matter of Centre for Public Interest Litigation v. Union of India, reported in (2012) 3 SCC 1, the Hon’ble Apex Court held as follows:- “95. This Court has repeatedly held that wherever a contract is to be awarded or a licence is to be given, the public authority must adopt a transparent and fair method for making selections so that all eligible persons get a fair opportunity of competition.

To put it differently, State agencies/instrumentalities must always adopt a rational method for disposal of public property and no attempt should be made to scuttle the claim of worthy applicants. When it comes to alienation of scarce natural resources like spectrum, etc. it is the burden of the State to ensure that a non-discriminatory method is adopted for distribution and alienation, which necessarily result protection national/public interest.

In our view, a duly publicised auction conducted fairly and impartially is perhaps the best method for discharging this burden and the methods like first- come-first-served when used for alienation of natural resources/public property are likely to be misused by unscrupulous people who are only interested in garnering maximum financial benefit and have no respect for the constitutional ethos and values. In other words, while transferring or alienating the natural resources, the State is duty-bound to adopt the method of auction by giving wide publicity so that all eligible persons can participate in the process.” In this case, the tender notice was published on March 14, 2022. The last date for the bidders in the process for submitting their documents was March 22, 2022. The list of eligible applicants has already been published on March 22,