REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4782 OF 2011

(Arising out of Special Leave Petition (C)  No.22305/2010)

Humanity & another      ...Appellant(s) - Versus -

State of West Bengal & Ors.  ...Respondent(s)

WITH CIVIL APPEAL NO.4783 OF 2011

(Arising out of Special Leave Petition (C)  No.22503/2010)

Arunangshu Chakraborty   ...Appellant(s)

- Versus –

State of West Bengal & Ors.   ...Respondent(s)

WITH CIVIL APPEAL NO.4784 OF 2011

(Arising out of Special Leave Petition (C)  No.11783/2011)

C.A. Block Citizens’ Association  & Ors.  ... Appellant(s)

- Versus –

State of West Bengal & Ors.   ...Respondent(s)

J U D G M E N T

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GANGULY, J.

1. Leave  granted  in  all  the  special  leave  

petitions.

2. Several  writ  petitions  were  filed  in  public  

interest  before  the  Calcutta  High  Court  

challenging  the  allotment  of  land  given  in  

favour  of  Mr.  Sourav  Ganguly  (hereinafter  

referred to as allottee), by the State of West  

Bengal. The High Court, by its judgment dated  

12.4.2010, upheld the allotment of plot of land  

being plot no. CA-222 by allotment letter dated  

17.2.2009. It disposed of all the petitions by  

a direction that in order to retain leasehold  

rights  and  possession  of  the  said  plot  in  

Sector-V,  Salt  Lake  City  (Bidhannagar),  

Kolkata,  the  allottee  has  to  pay  the  State  

Government  a  sum  of  Rs.43,25,500/-,  failing  

which the lease deed dated 1.4.2009 shall be  

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treated as invalid and possession of the land  

shall be handed back to the State Government.

3. Challenging the said judgment of the Division  

Bench, three SLP’s (11783/2011, 22503/2010 and  

22305/2010) were filed before this Court and as  

the  judgment  is  one,  and  the  facts  and  

questions are identical, the cases were heard  

together  and  are  being  decided  by  this  

judgment.  

4. The  material  facts  of  the  case  are  that  on  

5.11.2006, an advertisement was issued by the  

Government  of  West  Bengal,  Urban  Development  

Department, earmarking a plot of land measuring  

about 50 kathas in Plot No. BF-158 in Sector-I,  

Salt Lake (Bidhannagar), Kolkata- 700064, for  

the  setting  up  of  an  integrated  school  from  

primary level to higher secondary level. It was  

stated  in  the  advertisement  that  the  school  

would basically be academic in nature, but with  

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extra-curricular  activities,  which  would  form  

an integral part of the curriculum and it was  

stated  that  the  intending  

Organization/Institution/Body/Registered  

Society/  Trust which  were capable  of running  

and  managing  such  a  school  by  their  own  

resources,  may  apply  to  the  Principal  

Secretary,  Urban  Development  Department,  

Government  of  West  Bengal,  Nagarayan,  DF-8,  

Sector-1, Bidhannagar, Kolkata- 700064 on plain  

paper within 15 days from the publication of  

the  advertisement  giving  details  of  the  

project.  It was  intimated that  the aforesaid  

plot of land would be leased to the aforesaid  

applicants  for  999  years  on  certain  terms  

indicated in the advertisement.  

5. One of the terms in the said advertisement, to  

which some reference shall be made later on, is  

as follows:

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“The  government,  however,  reserves  the  right to change the location of the land  and revise the rate of salami at its full  discretion. Such decision shall be final.”  

6. The allottee applied on 17.11.2006. In the said  

application, the allottee inter alia stated:

“There is ever increasing demand for  such  institutions,  especially  in  the  northern  and  eastern  part  of  the  metropolitan  city  of  Kolkata.  The  object  of  the  proposed  educational  institution  would  be  academic  excellence  with  a  balanced  blend  of  co-curricular  activities  and  sports  for  the  all  round  growth  of  the  younger generation...In this context,  I propose to keep a few seats reserved  for  such  needy  cum  meritorious  pupils.”

7. In  the  project  report  submitted  by  the  

allottee, it was stated that the school would  

be  owned  by  a  Registered  Society/Trust.  A  

Committee  consisting  of  several  Government  

officials  considered  about  20  applications,  

filed pursuant to the aforesaid advertisement.  

The Committee consisted of:

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a. Chief Secretary, Government of West Bengal b. Principal  Secretary/  Secretary  to  Chief  

Minister c. Principal  Secretary/  Secretary,  Urban  

Development Department d. Principal  Secretary/  Secretary,  

Information  and  Cultural  Affairs  Department

e. Principal  Secretary/  Secretary,  Cottage  and Small-Scale Industries Department

f. Principal  Secretary/  Secretary,  Commerce  and Industries Department

g. Managing Director, West Bengal Industries  Development Corporation

8. Surprisingly  nobody  from  the  Education  

Department was in the Committee.

9. Thereafter, by resolution dated 10.1.2007, the  

aforesaid Committee selected the allottee and  

an allotment order dated 22.02.2007 in respect  

of  plot  no.  BF-158  was  issued  by  the  Joint  

Secretary,  Urban  Department  to  the  allottee.  

Thereupon,  a lease  deed was  executed between  

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the Government and the allottee on 29.10.2007  

and possession of the said plot was given on  

14.2.2008.

10. It may be noted that the aforesaid selection of  

the allottee in respect of plot No.BF-158 was  

not challenged and is not the subject matter of  

dispute in these proceedings.

11. Thereafter, on 19.1.2009, a letter was written  

to Sri Ashoka Bhattacharya, Minister for Urban  

Development  and  Municipal  Affairs  by  the  

allottee  by stating  that after  going through  

the norms of ‘ICSE’ he felt that allotment of a  

bigger plot was needed for getting affiliation  

and a prayer was made for allotment of another  

bigger plot.  

12. Since the prayer made in this letter and its  

consideration  by  the  Government  is  vitally  

important for the decision in this case, the  

letter is set out below:

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“At  present  I  am  the  owner  of  Plot  No.  158, Block-BF in Salt Lake, Sector-I of 48  Kathas of land which was given to me for  the  purpose  of  building  a  school.  But  after going through the norms of ICSE to  get an affiliation, we now need a plot of  more than 60 kathas (1 acre). So I would  like  to  surrender  this  allotted  land to  you and at the same time apply for a plot  of a bigger area so that I can take the  school project forward.”

(Underlined by Court)

13. It  may  be  noted  that  in  this  letter,  the  

allottee   stated   that   he  ‘would  like  to  

surrender’ the  plot already  allotted  to  him  

and  would  at  the  same  time ‘apply  for  a  

plot of a bigger area’. This the allottee was  

seeking to do in order to comply with the norms  

of ICSE.

14. Within a month thereafter, by a communication  

dated  17.2.2009,  issued  from  the  Urban  

Development  Department,  the  allottee  was  

informed about allotment of another plot- No.  

CA-222 in Sector-I measuring 62 kathas (it is  

actually  63.04  kathas).  This  allotment  of  a  

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different plot, which is of much bigger size,  

in a different area, was challenged before the  

High  Court  and  before  this  Court  on  various  

grounds.

15. The first ground of challenge was that there  

was  no  advertisement  for  allotment  of  the  

subsequent plot being plot No. CA-222, which is  

much bigger than the initial plot and allotment  

of this different and bigger plot, without any  

advertisement  by the  Government, only  on the  

prayer  of  the  allottee  is  arbitrary,  

discriminatory and violative of Article 14 of  

the Constitution.

16. The  second  ground  of  challenge  is  that  even  

though  the  impugned  allotment  was  made  on  

17.2.2009 “subject to execution of registration  

of deed of surrender,” the lease deed pursuant  

to  such allotment  was executed  on 01.04.2009  

and the same was presented for registration on  

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3.4.2009  and was  registered on  6.4.2009. The  

possession of the plot was made over to the  

allottee  on  30.4.2009.   A  draft  deed  of  

surrender was sent by the State Government to  

the allottee and was signed by the allottee on  

5.3.2009  but  the  same  was  not  presented  for  

registration and the same was registered only  

after filing of the petition before the High  

Court.  The complaint of the petitioner is that  

the plot was surrendered only after the writ  

petition  was  admitted  by  the  High  Court  and  

direction for filing of affidavit was given.   

17. The third ground of challenge was that when the  

allottee initially applied and was allotted the  

previous  plot, the  norms of  ICSE affiliation  

were already notified and the allottee claiming  

to set up a school for ICSE affiliation must be  

aware of those norms.  

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18. The fourth ground was that the claim of the  

allottee for complying with the ICSE norm is  

just a specious plea, in fact the Trust which  

the allottee has set up for the school does not  

at all comply with the ICSE norms.

19. The  fifth  ground  was  that  in  allotting  the  

subsequent  plot,  to  the  allottee,  the  

authorities have flouted the working plan which  

is available for Salt Lake City in the absence  

of a master plan.  

20. The learned counsel for the State, on the other  

hand,  submitted before  this Court  that there  

was  nothing  illegal  in  the  Government’s  

accepting the subsequent offer of the allottee  

and in doing so the Government acted in terms  

of  the  original  advertisement  where  it  had  

reserved  its  right  to  alter  the  original  

location of the allotted plot. Learned counsel  

for  the  State  submitted  that  the  subsequent  

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plot which has been allotted to the allottee  

cannot be called allotment of a new plot and no  

fresh advertisement for the same is necessary  

and relied on the impugned judgment in which  

High Court entered a similar finding. It was  

also submitted that the initial allotment made  

in favour of the allottee was examined by a  

high-powered  Committee  and  after  examining  

everything allotment was made and there is no  

illegality in the entire transaction.  

21. Learned counsel for the allottee submitted that  

the bona fide of the allottee must be looked  

into  and  considered  by  this  court  and  the  

project is for a public purpose of setting up a  

good school in the area which is very much in  

need of the same. No challenge has been made to  

the allotment of the subsequent plot in favour  

of the allottee by any educational institution  

or  by  those  who  applied  for  the  first  

allotment. The challenge by the public interest  

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litigants  should  not  be  entertained  by  this  

court when the setting up of the school itself  

was  in  public  interest.  It  is  further  urged  

that the subsequent allotment does not require  

a fresh advertisement.

22. The other grounds of challenge pointed out by  

the appellants, according to the counsel of the  

allottee,  are inconsequential  and may  not be  

considered  by  this  court  in  view  of  the  

overwhelming public interest in the setting up  

of a school.  

23. Considering  the  aforesaid  rival  submissions,  

this  court  is  inclined  to  hold  that  the  

allotment of plot no. CA-222 in favour of the  

allottee  cannot be  sustained for  the reasons  

discussed hereunder.

24. When  the  Government  decided  to  allot  a  

substantial plot for setting up of a school by  

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private organizations and when on the basis of  

an  advertisement  to  that  effect  various  

organizations  responded,  the  action  of  the  

Government was one of granting largesse in as  

much as land of which the Government is owner  

and which was allotted is a very scarce and  

valuable property.

25. It has been repeatedly held by this court that  

in the matter of granting largesse, Government  

has  to  act  fairly  and  without  even  any  

semblance  of  discrimination.  Law  on  this  

subject has been very clearly laid down by this  

court in the case of  Ramana Dayaram Shetty v.  

International  Airport  Authority  of  India  and  

Others reported in 1979 (3) SCC 489. A three-

Judge Bench in the said decision has recognized  

that the Government, in a welfare State, is in  

a position of distributing largesse in a large  

measure and in doing so the Government cannot  

act at its pleasure. This court perusing  the  

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new jurisprudential theory of Professor Reich  

in his article on the  “The New Property” (73  Yale  Law Journal  733) accepted  the following  

dictum contained therein:

“The  government  action  be  based  on  standards  that  are  not  arbitrary  and  unauthorized.”

26. This  court  explained  the  purport  of  the  

aforesaid formulation by holding:  

“The government cannot be permitted to say  that  it  will  give  jobs  or  enter  into  contracts or issue quotas or licenses only  in  favour  of  those  having  grey  hair  or  belonging to a particular political party  or  professing  a  particular  religious  faith.  The  government  is  still  the  government when it acts in the matter of  granting  largesse  and  it  cannot  act  arbitrarily. It does not stand in the same  position as a private individual.”

(Para 11, page 505 of the report)

27. The aforesaid dictum in Ramana (supra) is still  

followed  by  this  court  as  the  correct  

exposition  of  law  and  has  been  subsequently  1

followed  in  many  other  decisions.  In  M/s  

Kasturi Lal Lakshmi Reddy v. State of Jammu and  

Kashmir & Another reported in 1980 (4) SCC 1,  

another three-Judge Bench relied on the dictum  

in  Ramana (supra)  and  held  whenever  any  

governmental action fails to satisfy the test  

of  reasonableness and  public interest,  it is  

liable to be struck down as invalid. This court  

held  that  a  necessary  corollary  of  this  

proposition is that the Government cannot act  

in  a  manner  which  would  benefit  a  private  

party.  Such  an  action  will  be  contrary  to  

public interest. (See para 14, p. 13 of the  

report)

28. The setting up of a private school may have  

some  elements  of  public  interest  in  it  but  

Constitution Bench of this court has held in  

T.M.A.  Pai  Foundation  &  Ors.  v. State  of  

Karnataka  &  Others reported  in  2002  (8)  SCC  

481, that the right of a citizen, which is not  

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claiming minority rights to set up a private  

educational  institution  is  part  of  its  

fundamental  right  to  carry  on  an  occupation  

under Article 19(1)(g). Such enterprise may not  

be  a  totally  business  enterprise  but  profit  

motive cannot be ruled out.  

29. In view of the aforesaid legal principle, the  

question is whether the impugned order of the  

Government  vide  allotment  letter  dated  

17.2.2009 allotting a plot of 63.04 kathas of  

land in a prime area in Salt Lake City is an  

allotment which is different than the previous  

allotment of 50 kathas which was made to the  

allottee in Plot No. BF-158.  

30. The answer is obvious from the admitted facts  

of the case.  Even the allottee in his letter  

dated  19.1.2009  praying  for  such  allotment,  

made it clear that he was applying for a plot  

of bigger area after surrendering the previous  

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plot. The sequence suggested in the allottee’s  

letter is that he would surrender the already  

allotted land and at the same time apply for a  

plot of bigger area. Therefore, the request of  

the allottee is to give another plot of land.  

Pursuant  to  such  request  of  the  allottee,  

another plot of land was allotted to him with  

exemplary  speed  by  the  Government,  within  a  

month,  if  we  go  by  the  normal  pace  in  

governmental transactions. The request was made  

by the allottee for a bigger plot of land on  

19.1.2009 to Mr. Ashok Bhattacharya, Minister  

of Urban Development and Municipal Affairs and  

from  the said  department a  communication was  

sent  to  the  allottee  on  17.2.2009,  to  the  

effect  that after  considering the  request of  

the  allottee,  the  Government  was  pleased  to  

cancel its previous order of allotment and in  

lieu thereof was allotting a new plot of land  

being no. CA-222 measuring 62 kathas (which is  

actually 63.04 kathas).  

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31. Admittedly, no advertisement was issued and no  

offer  was  sought  to  be  obtained  from  the  

members of the public in respect of the new  

allotment of a much bigger plot. In view of the  

principles  laid  down  by  this  court,  the  

impugned allotment is clearly in breach of the  

principles  of  Article  14  explained  by  this  

court  in  Ramana  (supra),  Kasturi  Lal  (supra)  

and other subsequent cases.  

32. This court cannot persuade itself to hold that  

this allotment is in exercise of the right of  

the Government in the first advertisement dated  

5.11.2006,  where  the  Government  reserved  its  

right to change the location of the land. The  

second allotment is not only about a change in  

the location of the land, but the subsequent  

allotment  is  also  of  a  much  larger  plot  of  

land, brought about in terms of the request of  

the allottee for a bigger plot. The subsequent  

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change was not brought about by the Government  

in  its  own  discretion,  assuming  but  not  

admitting  that  the  Government  could  exercise  

its discretion in such a fashion but was in  

response to a written request of the allottee.

33. The  Government  was  so  anxious  to  oblige  the  

allottee by giving bigger plot that too with no  

loss of time, the said allotment was made by  

the  Government  admittedly  without  verifying  

whether  the  allottee  had  surrendered  the  

previous plot allotted to him. From the facts  

which  have  been  disclosed  here,  it  is  clear  

that such surrender took place much later on  

17.12.2009, when the allottee sent a forwarding  

letter  the  registered  deed  of  surrender  in  

respect of the previous plot no. BF-158. The  

letter of the allottee dated 16.12.2009 would  

show the following:

“Though  I  have  executed  the  Deed  of  Surrender and made over the same to you  

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but  the  formality  of  having  the  same  registered  could  not  be  completed  by  me  due to oversight which was mainly because  of my busy schedule and constant travel. I  understand  that  the  said  Deed  cannot  be  registered  now  for  lapse  of  time  unless  extended by the State.

I shall be highly grateful if you could  kindly  arrange  to  have  the  said  period  extended or allow me to register a fresh  deed of surrender at the earliest.”

34. It  is,  therefore,  clear  that  the  Government  

made allotment of the new plot to the allottee  

on terms which were even more generous than the  

ones suggested by the allottee in his letter  

dated 19.1.2009. Such action of the Government  

definitely  smacks  of  arbitrariness  and  falls  

foul of Article 14.

35. This factual aspect of the matter discussed in  

detail under the second ground of challenge was  

not disputed before us by either the learned  

counsel  for  the  Government  or  the  learned  

counsel for the allottee.

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36. On  the  third  ground  of  challenge  about  

compliance with ICSE norms, we find that the  

ICSE norms were in place as early as 28.4.2006  

and  those  norms  have  been  disclosed  by  the  

counter-affidavit filed by the allottee before  

this  court  in  the  SLP  filed  by  C.A.  Block  

Citizens’  Association.  Therefore,  much  before  

the  application  was  made  by  the  allottee  on  

17.11.2006,  those  norms  were  available  on  

record. Even then he applied for a plot of 50  

kathas of land in terms of the advertisement  

dated 5.11.2006 issued by the State Government.

37. On the fourth ground of challenge, we find that  

according to clause 2 of the ICSE norms, the  

school  should  be  run  by  a  Registered  

Society/Trust  or  a  Company  (under  section  

25(1)(a)  of  the  Companies  Act,  1986)  for  

educational purposes. It must not be run for  

profit.  

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38. The  constitution  of  the  Society/Trust/Company  

running the school should be such that it does  

not  vest  control  in  a  single  individual  or  

members of the same family.  

39. But in the instant case, a Society which has  

been registered for running the proposed school  

under  the  name  of  'Ganguly  Education  and  

Welfare  Society'  consists  of  the  following  

members:

a. Sourav Ganguly

b. Dona Ganguly

c. Snehasish Ganguly

d. Chandidas Ganguly

e. Nirupa Ganguly

f. Arup Chatterjee

g. Deepak Kumar Mitra

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40. Of  these  names,  the  first  5  are  all  in  the  

family and stay in the same address at 2-6,  

Biren Roy Road (E), Barisha, Kolkata. Mr. Arup  

Chatterjee  is  also  a  relation  of  the  family  

staying  in  Brahma  Samaj  Road  and  only  Mr.  

Deepak Kumar Mitra, the Chartered Accountant,  

is outside the family. Therefore, constitution  

of such a Trust to run the school is clearly  

against the ICSE norms.  

41. It  is  thus  clear  that  the  allottee  is  

selectively  seeking  compliance  of  the  ICSE  

norms only in asking for a bigger plot.  In so  

far  as  other  norms  are  concerned,  they  are  

clearly flouted as seen in the constitution of  

the Trust set up to run the school. Hence, the  

argument on behalf of the appellant that the  

plea of the allottee to ask for a bigger plot  

in the name of complying with ICSE norms is not  

a  bona  fide  plea  is  of  some  substance.  The  

learned counsel for the allottee has not been  

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able to meet the said argument as to how the  

ICSE norms are complied with if the school is  

to be run by such a Trust, which consists of  

members of the family and this court finds that  

there is a lot of substance in this argument of  

the  appellants.  This  point  was  also  urged  

before  the  High  Court  but  unfortunately  the  

High Court brushed aside this objection, if we  

may  say  so  with  respect,  by  a  very  strange  

logic by observing:

“We  are  not  required  to  consider  this  aspect of the matter because it will be  for  the  governing  body  of  the  ICSE  to  examine the application which may be made  for recognition/affiliation of the school  which  is  yet  to  be  established  and  construction yet to be made. As and when  any  application  will  be  made  for  such  recognition/affiliation,  the  concerned  authority/body  will  consider  the  application and it is not for this court  to  speculate  at  this  stage  as  to  what  would  be  the  composition  of  the  organization/body/  society  which  will  apply  to  Council  for  ICSE  for  recognition/affiliation of the integrated  school.”

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42. This Court is of the view that a challenge to  

the legality of an order of allotment of land  

by the Government must be decided by the Court  

on  the  basis  of  material  available  when  the  

High Court is examining the challenge. The High  

Court cannot refuse to examine the challenge on  

the  basis  of  what  may  happen  in  future.  By  

doing  so,  High  Court  refused  to  exercise  a  

jurisdiction which is vested in it.

43. In  connection  with  the  fifth  ground  of  

challenge, a map was produced before us by the  

learned counsel for the appellant, which is a  

working map in the absence of a master plan for  

sector-I of Salt Lake area, dated 2.9.2004. In  

that  map,  the  plot  CA-222  is  marked  as  one  

meant for a college yet the same has been given  

to  the  allottee  for  establishing  an  ICSE  

school. The learned counsel for the appellant  

submits  that  such  allotment  is  clearly  in  

violation  of the  aforesaid plan.  The learned  

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counsel  for  the  State  has  not  been  able  to  

refute  the  aforesaid  contention  of  the  

appellant.  

44. However, it has been repeatedly urged, both by  

the learned counsel for the State and also that  

of the allottee that both the State Government  

and the allottee had bona fide intentions of  

establishing a school. Therefore, the court in  

public  interest  should  uphold  allotment  and  

allow  the  school  to  be  set  up  and  should  

refrain from interfering in public interest.  

45. This court is unable to accept the aforesaid  

contention.  

46. It is axiomatic that in order to achieve a bona  

fide end, the means must also justify the end.  

This court is of the opinion that bona fide  

ends cannot be achieved by questionable means,  

specially  when  the  State  is  involved.  This  

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court has not been able to get any answer from  

the State why on a request by the allottee to  

the Hon’ble Minister for Urban Development, the  

Government  granted  the  allotment  with  

remarkable  speed  and  without  considering  all  

aspects of the matter. This court does not find  

any legitimacy in the action of the Government,  

which has to act within the discipline of the  

constitutional law, explained by this Court in  

a catena of cases.  We are sorry to hold that  

in making the impugned allotment in favour of  

the allottee, in the facts and circumstances of  

the case, the State has failed to discharge its  

constitutional  role.   Recently  this  Court  

relying on Ramana (supra), Kasturi Lal (supra)  and various other judgments summed up the legal  

position in  Akhil Bharatiya Upbhokta Congress  v. State of Madhya Pradesh and others reported  in JT 2011 (4) SC 311.  The relevant extracts  

from paragraph 31 (page 336 of the report) are  

excerpted below:-

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“…Every  action/decision  of  the  State  and/or its agencies/instrumentalities to  give largesse or confer benefit must be  founded  on  a  sound,  transparent,  discernible  and  well  defined  policy,  which shall be made known to the public  by  publication  in  the  Official  Gazette  and other recognized modes of publicity  and  such  policy  must  be  implemented/executed by adopting a non- discriminatory  or  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 functionary or officer of the  State.”

47. The  Division  Bench  of  the  High  Court,  with  

respect, fell into an error by holding that by  

allotting  plot  no.  CA-222  without  open  

advertisement and public offer the Government  

action is not illegal or arbitrary.

48. In coming to the said conclusion, the Division  

Bench relied on two decisions of the Supreme  

Court  rendered  in  the  cases  of  Sachidanand  

Pandey  &  another v.  State  of  West  Bengal  &  

others reported in (1987) 2 SCC 295 and Kasturi  Lal (supra).  This  Court  however  finds  that  

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those two cases stand on completely different  

footing.  

49. First  of  all,  in  the  instant  case,  the  

Government  initially  issued  advertisement  for  

allotment of land for setting up of a school  

and  to  which  the  allottee  responded.  

Thereafter,  a  Committee  considered  all  the  

applications and decided to allot the land in  

favour  of  the  allottee.  The  matter  rested  

there.  Then  came  the  letter  of  the  allottee  

dated 19.1.2009, which has been set out above.  

It is very surprising that the Division Bench  

of Calcutta High Court, in paragraph 5 (page 6)  

and  paragraph  21  (page  18)  of  the  impugned  

judgment, recorded a finding that the allottee  

was  informed  by  ICSE  that  for  obtaining  

affiliation  for  integrated  educational  

institution, land should not be less than 60  

kathas.  This  court  fails  to  understand  the  

basis on which the Division Bench came to such  

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a conclusion.  The letter of the allottee dated  

19.1.2009  does  not  even  whisper  that  he  was  

informed of any objection by ICSE. The letter  

proceeds  on  a  totally  different  basis.  The  

letter  states  that  after  going  through  the  

norms  of  ICSE,  it  was  the  allottee’s  own  

understanding  that  a  plot  of  more  than  60  

kathas is necessary to take the school project  

forward. Therefore, the High Court’s recording  

of fact, that the allottee was ‘informed’ by  

the ICSE of any objection, is not substantiated  

by  any  material  on  record.  This  is  a  grave  

error on the part of the High Court.  

50. Apart  from  that,  once  the  Government  has  

initiated  the  process  of  advertisement,  it  

cannot jettison the same and allot a new plot  

to the allottee without any advertisement. This  

action of the Government is certainly arbitrary  

and violates the principles of Article 14.  

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51. Neither  in  Sachidanand  Pandey (supra)  nor in  

Kasturi Lal  (supra), any process of advertisement  

was ever initiated. In  Sachidanand Pandey  (supra),  

the main questions raised were issues of ecology  

and environment. In that case, the court dealt with  

the  question  of  issuing  public  auction  by  

explaining that there were direct negotiations with  

those who came forward to set up five star hotels,  

to  promote  the  tourism  industry  in  the  State.  

Detailed  considerations  at  different  levels  

proceeded for a very long time before the Taj group  

of hotels, with sufficient experience in the hotel  

industry, was selected. In the instant case, the  

allottee may be a well-known sportsman but does not  

claim any expertise as an educationist. Here within  

a month of the application made by the allottee,  

the allotment was made in a hot haste and without  

disclosure  by  the  State  of  any  detailed  

consideration. Thus, the present case stand poles  

apart from the facts in Sachidanand Pandey (supra).

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52. In  Kasturi Lal (supra) also, the Government’s  

policy  was  to  set  up  industries  in  Jammu  and  

Kashmir, which was not industrially developed and  

thus entrepreneurs, within the State, were offered  

encouraging  terms  for  setting  up  industry.  

Therefore,  in  such  a  situation  the  State  took  a  

policy decision not to invite a tender or go in for  

advertisement  for  inviting  industrialists  from  

outside  the  State.  It  may  be  noted  that  at  no  

stage, advertisement was thought of by the State in  

Kasturi Lal (supra).  

53. In the instant case, the impugned allotment of  

a different and bigger plot by the government in  

favour of the allottee without any advertisement,  

when initially advertisement was resorted to, and  

then  it  was  given  up  and  everything  was  rushed  

through  in  hot  haste,  is  unreasonable  and  

arbitrary,  and  the  High  Court  was  wrong  in  

upholding the same.   

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54. Before I conclude, I make it clear that I am  

aware  that  the  allottee  is  a  cricketer  of  great  

repute and has led this country to victory in many  

tournaments,  both  in  India  and  abroad.  I  have  

watched him on the television on many occasions and  

was delighted to see his glorious cover drives and  

effortlessly lofted shots over the fence. But as a  

Judge, I have different duties to discharge. Here I  

must be objective and eschew my likes and dislikes  

and render justice to a cause which has come before  

the Court.

55. For  the  reasons  aforesaid,the  order  of  

allotment of plot no. CA-222, Sector-V, Salt Lake  

(Bidhannagar),Kolkata made in favour of Mr.Sourav  

Ganguly,the  allottee,is  quashed.  In  consequence  

thereof, the lease deed dated 1.4.09, pursuant to  

such allotment stands quashed. The allottee must,  

within two weeks from date, handover the peaceful  

and vacant possession of plot No. CA-222 measuring  

63.04  Kathas  in  Sector-V,  Salt  Lake  City  

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(Bidhannagar), Kolkata to the concerned department  

of  the  State  Government.  Within  two  weeks  

thereafter the State Government must refund to the  

allottee, by a Cheque, the entire money paid by him  

for such allotment.  

56. The appeals are allowed.  The order of the High  

Court is  set aside.

57. No order as to costs.  

.......................J. (G.S. SINGHVI)

.......................J. New Delhi (ASOK KUMAR GANGULY) May 26, 2011

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