JUDGMENT Dr. B.S. CHAUHAN, C.J. — This writ petition has been filed as a Public Interest Litigation (hereinafter called the ‘PIL’) for quashing the agreement dated 17.04.2007 (Annex-1) entered into between the opposite party Nos.1 and 5 executing the lease/licence of the property in dispute for a period of 15 years on monthly lease rent/licence @ Rs.51,000/- per month. 2. The facts and circumstances giving rise to this case are that on 24.3.2007 sealed tenders were invited for lease of the bus stand meant for Orissa State Road Transport Corporation (hereinafter called the ‘Corporation’) at Sundargarh on monthly rental basis. The opposite party No.5 negotiated with the Corpo¬ration and got the aforesaid agreement executed on 13.4.2007. The Corporation vide its letter dated 16.4.2007 intimated opposite party No.5 to take possession of the land with certain conditions and the land was handed over to opposite party No.5 on 21.4.2007. There had been some disputes between opposite party Nos.1 and 5 on the one hand and members of one vehicles owners’ Association called Trekker and Commander Owner’s Association. There has been civil litigation as well as criminal litigation between the said groups. One PIL, being W.P.(C) No.9497 of 2007 (Sri Kausal Sahu v. Principal Secretary, Revenue Department, Govt. of Orissa & Ors.) was filed before this Court for cancelling the said agree¬ment. However, it was dismissed vide judgment and order dated 13.09.2007. This writ petition has been filed as a PIL seeking the same relief on the grounds which had been taken in the earli¬er writ petition i.e. that no procedure of law had been followed while giving the contract to the opposite party No.5; the Corpo¬ration was not competent to transfer the land by any means what¬soever, or even to grant a licence. The agreement is in contra¬vention of the policy decision taken by the State Government and the Corporation. Such a contract had not been executed anywhere else and it merely remained a single instance. There has been under hand dealing in the transaction; opposite party No.5 never submitted any tender for getting lease/licence of the said land. 3. Mr. Himansu Sekhar Mishra, learned counsel for the petitioner has submitted that the land still belongs to the State Government as the title had never been transferred in favour of the Corporation. There has been under hand dealing in the transaction; opposite party No.5 never submitted any tender for getting lease/licence of the said land. 3. Mr. Himansu Sekhar Mishra, learned counsel for the petitioner has submitted that the land still belongs to the State Government as the title had never been transferred in favour of the Corporation. The Corporation had taken a policy decision to meet its financial liability by alienating certain properties in a particular manner. However, the manner so prescribed has not been followed in the instant case. Public property should not be settled in favour of any private person, even granting a licence without giving advertisement in newspapers having wide circula¬tion and giving an opportunity to the people at large to partici¬pate in the bid or submitting the tenders. The procedure followed by the Corporation is in contravention of law. Petitioner has no personal interest as it is not espousing the cause of Trekker and Commander Owners’ Association (hereinafter called ‘the Associa¬tion’). The earlier writ petition was not entertained, therefore, it cannot be held that the said writ petition had been decided on merit and even otherwise the principles of res judicata is not applicable in PIL. It is a bonafide PIL as by this agreement the interest of the public at large and particular the public excheq¬uer has suffered an irreparable loss. The agreement amounts to lease and not a licence by any means and the grant of lease is totally illegal, and invalid for the reason that the action of entering into said agreement itself is arbitrary and hit by Article 14 of the Constitution. Now the Corporation again started plying vehicles on the routes passing through the said bus stand, thus the same is required for parking of the buses. Thus, the agreement is liable to be quashed. 4. On the other hand Mr. Mohanty, learned Senior Counsel, appearing for the Corporation has submitted that the Corporation did not have sufficient funds to meet its liability, therefore a policy decision was taken to alienate certain properties. So far as the land in dispute at Sundargarh is concerned, notices were affixed for inviting tender at different places like bus stand and offices of the Government departments, particularly at the Offices of the Corporation, the District Collector, and Tahasildar. There was no requirement to have publication in newspapers having wide circulation. So far as the land in dispute at Sundargarh is concerned, notices were affixed for inviting tender at different places like bus stand and offices of the Government departments, particularly at the Offices of the Corporation, the District Collector, and Tahasildar. There was no requirement to have publication in newspapers having wide circulation. The agreement is bona fide and there has been no violation of any statutory requirement. Earlier this Court had considered this issue and dismissed the petition on merit taking into consideration the submissions made by the learned counsel for the parties and the said judgment operates a res judicata. Thus the petition is not maintainable and liable to be dismissed. 5. Mr. R.K. Rath, learned Senior Counsel, appearing for the opposite party No.5 has taken all the pleas which have been taken by Mr. Mohanty, learned Senior Counsel for the Corporation and insisted that the petition itself is barred by principles of res judicata and all the issues agitated herein had been consid¬ered in the earlier case. There are very stringent conditions in the agreement, thus it could not fetch a very high rent. This is not a bona fide litigation, rather it is a benami litigation at the behest of the Association. Therefore, the petition is liable to be dismissed. 6. We have considered the rival submissions made by the learned counsel for the parties and perused the record. 7. A large number of issues have been agitated by the learned counsel for the parties. However, we are not inclined to enter into the issue of title/ownership of the land in dispute as it is not relevant for our purpose to decide as to whether the Corporation was competent to execute the lease/licence. In case the title of the land in dispute is still with the State, in such a dispute only the State Government could only be an aggrieved party and not any individual person. The policy decision of the Corporation to alienate certain properties to meet the financial liability also does not require any interference as being a subject of policy decision. The Court has a very limited compe¬tence of judicial review to interfere with the policy decision taken by the Government or Statutory Authority, if the decision is found to be violative of any statutory requirement or of the constitutional mandate. The Court has a very limited compe¬tence of judicial review to interfere with the policy decision taken by the Government or Statutory Authority, if the decision is found to be violative of any statutory requirement or of the constitutional mandate. The issue as to whether the agreement (Annex-1) creates a lease or licence is also irrelevant as Mr. Rath has fairly conceded that his client has been granted a licence and not lease and this Court has already adjudicated the issue in an identical writ petition i.e. W.P.(C) No.596 of 2008 (Pareswar Biswal v. State of Orissa, decided on 30.7.2008) that such a grant was merely a licence. We are also not concerned as to whether the Corporation requires the said land for parking its vehicles if it has resumed plying of vehicles on the routes touching the said bus stand for the reason that Corporation has to take the decision in this regard also. The Corporation can have the bus stand on the ground floor and the commercial complex above the same or can use only the part of the area for parking purpose. The relevant question is as to whether the Corporation was competent to create a third party interest i.e. a lease or licence merely by affixing notices on the notice board of 3 or 4 offices in the district. Thus we are concerned with the require¬ment of law to deal with the public property. However, prior to that it may be relevant to deal with the preliminary objections raised by the learned counsel for the opposite parties i.e. the maintainability of the PIL by a person who is not bona fide or his bona fides are not known and as to whether the first judgment and order dated 13.9.2007 operates as res judicata. DOCTRINE OF RES JUDICATA IN PIL : 8. In Forward Construction Co. & Ors. v. Prabhat Mandal (Regd.), Andheri & Ors., AIR 1986 SC 391 , the Supreme Court considered the issue in the factual matrix that a plot of land was reserved under the Development Plan for Bombay and the verified Andheri Town Planning Scheme, for a bus depot of the Bombay Electricity Supply and Transport Undertaking (BEST). BEST pro¬posed to build two buildings which would include the bus Depot. BEST pro¬posed to build two buildings which would include the bus Depot. The issue had arisen regarding certain tenders submitted in pursuance of the advertisement in Times of India and other news¬papers for development of commercial establishment in the proper¬ty of the Transport Department. A writ petition challenging the user of the plot for commercial purposes came to be filed and was dismissed by the High Court. In the said writ petition certain provisions of Development Control Rules for change of user of the plot to commercial purpose was not raised at all. Subsequently, another writ petition was filed for the same purpose challenging the validity of the Rules. The Apex Court held that provisions of Explanations IV and VI to Section 11 of the Code of Civil Proce¬dure (hereinafter called ‘the CPC’) would apply even in the case of public interest litigation. The Court considered the provision of Explanations IV and VI of Section 11 CPC and observed that as Explanation VI deals with the public right or of a private right claimed in common for themselves and others, all persons inter¬ested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. Thus all other persons were bound by the decision in the earlier case. The Court held as under : “In view of Explanation VI it cannot be disputed that Section 11 applies to pubic interest litigation as well but it must be proved that the previous litigation was the pubic inter¬est litigation not by way of a private grievance. It has to be a bona fide litigation in respect of a right which is common and is agitated in common with others.” (Emphasis added). 9. In Rural Litigation and Entitlement Kendra Vs. State of U.P., AIR 1988 SC 2187 , a similar issue was considered. The Supreme Court passed certain orders in the writ petition and dis¬posed of the same. Subsequently, another writ petition was filed giving reference to certain provisions of the Forest (Conserva¬tion) Act, 1980, which had not been referred to in the earlier case. The Court rejected the contention of applicability of prin¬ciple of res judicata observing as under : “... The Supreme Court passed certain orders in the writ petition and dis¬posed of the same. Subsequently, another writ petition was filed giving reference to certain provisions of the Forest (Conserva¬tion) Act, 1980, which had not been referred to in the earlier case. The Court rejected the contention of applicability of prin¬ciple of res judicata observing as under : “... At the same time it has to be remembered that every technicality in the procedural law is not available as a defence when a matter of grave public importance is for consideration before the Court. Even if it is said that there was a final order, in a dispute of this type it would be difficult to enter¬tain the plea of res judicata.......... no reference to the Forest (Conservation) Act of 1980 had been done. We are of the view that leaving the question open for examination in future would lead to unnecessary multiplicity of proceeding and would be against the interests of society. It is mere and proper as also in the interest of the parties that the entire question is taken into account at this stage.” 10. In State of Karnataka & Anr. v. All India Manufacturers Organisation & Ors., AIR 2006 SC 1846 , the issue was reconsidered and the Court observed as under : “As a matter of fact, in a public interest litigation, the petitioner is not agitating his individual rights but represents the public at large. As long as the litigation is bona fide, a judgment in a previous public interest litigation would be a judgment in rem. It binds the public at large and bars any member of the public from coming forward before the Court and raising any connected issue or an issue, which had been raised should have been raised on an earlier occasion by way of a public inter¬est litigation.” (Emphasis added). 11. However, the Apex Court held that the Court must examine as to whether the cause of action, issue raised, prayers made, the relief sought and arguments raised in both the peti¬tioners are substantially the same. If it is so, the doctrine of res judicata will apply with all rigours. 12. 11. However, the Apex Court held that the Court must examine as to whether the cause of action, issue raised, prayers made, the relief sought and arguments raised in both the peti¬tioners are substantially the same. If it is so, the doctrine of res judicata will apply with all rigours. 12. Therefore, the issue of application of doctrine of res judicata in PIL has been considered by the Apex Court time and again and on this issue the law can be summarized that the prin¬ciple of res judicata generally applies provided the earlier litigation was by a genuine person in a bona fide manner and had been filed in no manner for personal gain. The issues involved; impugned order sought to be quashed; reliefs claimed; arguments advanced in both the cases, if found to be substantially the same the subsequent petition would be barred by the principle of res judicata. If a particular point has not been agitated in the earlier litigation though it could have been taken, even then the second petition would be barred. 13. Therefore, question does arise as to whether the judgment dated 13.9.2007 in W.P.(C) No.9497 of 2007 (Kausal Sahu v. The Principal Secretary, Revenue Department, Government of Orissa & Ors.), operates as res judicata. The order reads as under : “Heard Mr. A.C. Swain, learned counsel for petitioner, Mr. A.K. Mohanty, learned counsel for Orissa State Road Transport Corporation - opposite party No.3 and Mr. D.B. Das, learned counsel for opposite party No.5. This writ petition has been filed in public interest by one Kausal Sahu with a prayer to direct opposite party Nos.1 to 4 to terminate the agreement with opposite party No.5 under Annexure-3 in respect of the area over which opposite party No.5 has been allowed to make a market complex for running of the shop-rooms, restaurant, lodge and hotel etc. According to the petitioner, this will cause inconvenience to the passengers waiting to catch the bus. Previously the said land was allotted to Orissa State Road Transport Corporation for use as a bus stand. From the averments made in the writ petition it appears that the area in question was used as trekkers stand and it was earmarked as motor garage. The said garage has exactly not been used as bus stand. Previously the said land was allotted to Orissa State Road Transport Corporation for use as a bus stand. From the averments made in the writ petition it appears that the area in question was used as trekkers stand and it was earmarked as motor garage. The said garage has exactly not been used as bus stand. Learned counsel for the opposite parties submits that within 200 metres of the said area there is a bus stand to enable the pedestrians to stand and wait for the vehicles. Learned counsel for the Orissa State Road Transport Corporation also submits that the Corporation is financially in a very tight position and as such is trying to generate funds in order to pay some of its dues to the employees. As such the Corporation has decided to use its excess land for commercial purpose. It is also submitted that there is public interest involved if the land of the Corporation is used in order to tide over its financial crisis. Considering all these aspects, this Court is of the opinion that this writ petition should not be entertained. Apart from that this Court is not very much satisfied about the bona fides of the present petitioner and only one petitioner has come who has not disclosed his actual identity except saying that he is a social worker. For the reasons aforesaid, this PIL is dismissed.” 14. It is evident that the first paragraph gives descrip¬tion as to who are parties and who are learned counsel for the parties. Paragraphs 2 and 3 deal with the facts in brief. It is also evident that the Court took note of the fact that the area was earlier used by the Association for parking its vehicles. Paragraphs 4 is argument of the learned counsel for the Corpora¬tion. Paragraph 5 deals with the case on merit, if any. 15. The Court was of the opinion that the writ petition “should not be entertained”. In addition thereto the Court was not satisfied with the bona fides of the petitioner therein. Thus, it is crystal clear from the aforesaid judgment that the Court refused to entertain the petition and did not accept the same for consideration. ENTERTAIN - MEANS 16. ‘Entertain’ means either “to deal with or admit to consideration”. In addition thereto the Court was not satisfied with the bona fides of the petitioner therein. Thus, it is crystal clear from the aforesaid judgment that the Court refused to entertain the petition and did not accept the same for consideration. ENTERTAIN - MEANS 16. ‘Entertain’ means either “to deal with or admit to consideration”. ‘Entertain’ means when it is filed or it is entertained or when it is admitted and the matter is kept under consideration of hearing i.e. for consideration on merit (Vide Lakshmiratan Engineering Works Limited Vs. Assistant CST, AIR 1968 SC 488 and State of Haryana v. M/s. Maruti Udyog Ltd. & Ors., AIR 2000 SC 2941 . In Hindustan Commercial Bank Limited Vs. Punnu Sahu, AIR 1970 SC 1384 , the term “entertainment” was explained by the Hon’ble Supreme Court that it means “to proceed to consider on merit”. In Lala Ram Vs. Hari Ram, AIR 1970 SC 1093 , the Supreme Court considered the meaning of word “entertain” as contained in the provisions of Section 417 of the Criminal Procedure Code, 1898 and held that it means to file or to receive by the Court and it has no reference to actual hearing of the case by any means. In Martin & Harris Ltd. Vs. VIth Additional District Judge and Ors., AIR 1998 SC 732 , the Supreme Court explained the mean¬ing of the word “entertain” in the context of the proviso to Section 21(1) of the U.P. Urban Buildings (Regulation of letting, Rent and Eviction) Act, 1972 that it means taking cognizance of a case by the competent authority by issuing summons for hearing to the tenant. 17. Thus, in view of the above, it is evident that “enter¬tain”. means receiving a case for consideration and if the Court has refused to entertain a petition it means that it has never been considered by the Court on merit or the issue involved therein have not been decided. 18. It is settled legal proposition that even in a case where the petitioner might have moved the Court in his private capacity and for redressal of personal grievance may with some ulterior purpose, there can be no bar on the Court to entertain a PIL if it comes to the conclusion that in furtherance of public interest it is necessary to enquire into the state of affairs of the subject matter of litigation. 19. 19. In view of the above we reach in an inescapable conclusion that the said judgment does not operate as res judicata. 20. This brings us to the second issue as to what are the bona fides of the present petitioner and if it is not a benami litigation at the behest of the Association, whether it can be entertained. 21. The law is well settled that Public Interest Litigation means nothing personal of the litigation and the petitioner has approached the Court to espouse the cause of public at large and particularly for those illiterate and down trodden persons who cannot approach the Court. But generally a person who approaches the Court should act in bona fide and he should not ask for any relief for himself. PIL BY A PERSON INTERESTED : 22. Even if in exceptional circumstances where personal interest of a litigant is involved, the Court may straightaway refuse to consider the case if the grievance raised therein requires an enquiry. In exceptional circumstances, the Court is not prohibited to issue direction for investigation or enquiry into the state of affair of the subject matter of litigation in spite of the fact that the litigation is motivated or the litigant has personal interest in the case or he is a benami litigant. If the Court is satisfied that the issues agitated require investi¬gation or an enquiry in public interest. (Vide Shivajirao Ni¬langekar Patil v. Dr. Mahesh Madhab Gosavi & Ors., AIR 1987 SC 294 ; Guruvayoor Devaswom Managing Committee & Anr. v. C.K. Rajan & Ors., (2003) 7 SCC 546 ; and Ashok Lenka v. Rishi Dixit & Ors., (2005) 5 SCC 598). 23. In Biswanth Chaturvedi (3) Vs. Union of India & Ors., (2007) 4 SCC 380 , the Apex Court considered a similar issue wherein a political rival complained regarding disproportionate assets acquired by the family members of the Chief Minister of Uttar Pradesh in a Public Interest Litigation. The Court rejected the contention that the litigant was not bona fide and it was at the behest of a political opponent observing as under : “The ultimate test, in our view, therefore, is whether the allegations have any substance. The Court rejected the contention that the litigant was not bona fide and it was at the behest of a political opponent observing as under : “The ultimate test, in our view, therefore, is whether the allegations have any substance. An enquiry should not be shut out at the threshold because a political opponent of a person with political differences raises an allegation of commission of offence........The test which one has to apply to decide the maintainability of the PIL concerns sufficiency of the petition¬er’s interest. In our view , it is wrong in law that the Court to Judge the petitioner’s interest without looking into the subject matter of his complaint and if the petitioner shows failure of public duty, the Court would be in error in dismissing the PIL. .........However, when scams take place, allegation of disproportionate assets is required to be looked into.” 24. While deciding the aforesaid case, the Apex Court re¬ferred to and relied upon its earlier judgment in M.C. Mehta v. Union of India & Ors. (2003) 8 SCC 696 . 25. Thus, the writ petition cannot be rejected merely because it is motivated as has been filed at the behest of somebody else who has some interest in the property in dispute or the petitioner is not a bona fide person. 26. In view of the above, if it is assumed that it is a benami litigation, the question does arise as to whether this Court should interfere with the impugned agreement in exercise of its power of judicial review. DOCTRINE OF TRUST 27. Every authority which holds the property for the public or which has been assigned the duty of grant of largesse etc., acts as a trustee and, therefore, has to act fairly and reasona¬bly. 28. In Ramana Dayaram Shetty v. International Airport Authority of India & Ors., AIR 1979 SC 1628 , the Supreme Court held as under :- “... To-day the Government, in a welfare State is the regu¬lator and dispenser of special services and provider of a large number of benefits, including jobs contracts, licences, quotas, mineral rights etc. The Government pours forth wealth, money, benefits, services, contracts, quotas and licences. The valuables dispensed by Government take many forms, but they all share one characteristic. They are steadily taking the place of traditional forms of wealth. These valuables which derive from relationships to Government are of many kinds. The Government pours forth wealth, money, benefits, services, contracts, quotas and licences. The valuables dispensed by Government take many forms, but they all share one characteristic. They are steadily taking the place of traditional forms of wealth. These valuables which derive from relationships to Government are of many kinds. They comprise social security benefits, cash grants for political sufferers and the whole scheme of State and local welfare. Then again, thousands of people are employed in the State and the Central Government and local authorities. Licences are required before one can engage in many kinds of business or work. The power of giving licenses means power to withhold them and this gives control to the Government or to the agents of Government on the lives of many people... Now, obviously where a corporation is an instrumentality or agency of Government, it would, in the exercise of its power or discretion, be subject to the same constitutional or public law limitations as Government. The rule inhibiting arbitrary action by Government which we have discussed above must apply equally where such corporation is dealing with the public, whether by way of giving jobs or entering into contracts or otherwise, and it cannot act arbitrarily and enter into relationship with any person it likes at its sweet will, but its action must be in conformity with some principle which meets the test of reason and relevance”. (Emphasis added). 29. In Kumari Shrilekha Vidyarthi etc. etc., v. State of U.P. & Ors., AIR 1991 SC 537 , the Supreme Court held as under :- “We have no doubt that the Constitution does not envisage or permit unfairness or unreasonableness in State actions in any sphere of its activity contrary to the professed ideals in the Preamble. In our opinion, it would be alien to the Constitutional Scheme to accept the argument of exclusion of Art. 14 in contrac¬tual matters. The scope and permissible grounds of judicial review in such matters and the relief which may be available are different matters but that does not justify the view of its total exclusion. This is more so when the modern trend is also to exam¬ine the unreasonableness of a term in such contracts where the bargaining power is unequal so that these are not negotiated contracts but standard form contracts between unequals..... This is more so when the modern trend is also to exam¬ine the unreasonableness of a term in such contracts where the bargaining power is unequal so that these are not negotiated contracts but standard form contracts between unequals..... ....However, to the extent, challenge is made on the ground of violation of Art. 14 by alleging that the impugned act is arbitrary, unfair or unreasonable, the fact that the dispute also falls within the domain of contractual obligations would not relieve the State of its obligation to comply with the basic requirements of Art. 14. To this extent, the obligation is of a public character invariably in every case irrespective of there being any other right or obligation in addition thereto. An additional contractual obligation cannot divest the claimant of the guarantee under Art. 14 of non-arbitrariness at the hands of the State in any of its actions. .....The requirement of Art.14 being the duty to act fairly, justly and reasonably, there is nothing which militates against the concept of requiring the State always to so act, even in contractual matters. There is a basic difference between the acts of the State which must invariably be in public interest and those of a private individual, engaged in similar activities, being primarily for personal gain, which may or may not promote public interest. Viewed in this manner, in which we find no con¬ceptual difficulty or anachronism, we find no reason why the requirement of Article 14 should not extend even in the sphere of contractual matters for regulating the conduct of the State activity. ....Thus, every holder of a public office is a trustee whose highest duty is to the people of the country and, therefore, every act of the holder of a public office, irrespective of the label classifying that act, is in discharge of public duty meant ultimately for public good. With the diversification of State activity in a Welfare State requiring the State to discharge its wide-ranging functions even through its several instrumentali¬ties, which requires entering into contracts also, it would be unreal and not pragmatic, apart from being unjustified to exclude contractual matters from the sphere of State actions required to be non-arbitrary and justified on the touchstone of Article 14.” 30. In M.I. Builders Pvt. Ltd. v. Radhey Shayam Sahu & Ors., AIR 1999 SC 2468 , a similar view has been reiterated by the Supreme Court observing that Public Trust Doctrine is a part of the law of the land. This doctrine has grown from Article 21 of the Constitution. While deciding the said case, reliance was placed on its earlier judgment in M.C. Mehta v. Kamal Nath & Ors., (1997) 1 SCC 388 . 31. Thus, in view of the above, it is evident that every State action should be free from bias, prejudice, arbitrariness and should be taken in public interest in accordance with law. Stringent condition in allotment of land - whether reduces the rate ? 32. There may be a case where the State or its instrumen¬tality takes a policy decision to float a particular scheme for development of an area. It may be for the purpose of commercial, residential or industrial. It may also provide for developing the multi-storeyed complex for either of the purposes. The State or its instrumentality is at liberty to change the terms of allot¬ment and in case some stringent conditions are imposed in a par¬ticular kind of contract, the valuation of land may vary accord¬ing to the term so imposed though the purpose may be the same. In Dr. Balbir Singh & Ors. v. M/s. M.C.D. & Ors., AIR 1985 SC 339 , the issue of depreciation of value of immovable property in such circumstances was considered by the Supreme Court elaborately. The issue involved has been regarding the imposition of property tax after assessing its market value. The question arose as to whether a condition imposed on the owner of the plot that he would sell the plot of land on which premises are constructed only to the members of the Cooperative House Building Society and only with the prior consent of the Government, such a condition may diminish the value of the land. 33. The question arose as to whether a condition imposed on the owner of the plot that he would sell the plot of land on which premises are constructed only to the members of the Cooperative House Building Society and only with the prior consent of the Government, such a condition may diminish the value of the land. 33. The said judgment and order was reconsidered and ap¬proved by the Supreme Court in New Delhi Municipal Committee v. M/s. Gymkhana Club Ltd. & Ors., (1994) 3 SCC 498 , wherein the Court held that while fixing the annual value of the premises, the authority concerned must keep in mind the restrictive clause of each of the lease deeds and the notional market value shall have to be discounted appropriately as the restrictions subject to which leases were granted, would undoubtedly depress the same. 34. Thus, it is evident from the above discussion that where the allotment of a property is subject to some stringent conditions, its value is required to be assessed at a proportion¬ately discounted rate for the reason that transferee does not have a free hand to deal with the property. Any deviation/viola¬tion of any of the stringent conditions may be fatal. INVITING TENDER/AUCTION WHETHER NECESSARY ? 35. In pursuing the socio-economic objective is the State bound to invite tenders or hold a public auction ? 36. In Rashbihari Panda Vs. State of Orissa, AIR 1969 SC 1081 , the government offered the option to purchase kendu leaves to certain old contractors on the same terms as in the previous year. Realising that the scheme of offering to renew contracts with the old licenses on the same terms was open to objection, the government changed its policy and formulated a new scheme by which offers were invited from intending purchasers of kendu leaves but the invitation was restricted to those individuals who had carried out the contracts in the previous year without de¬fault and to the satisfaction of the government. The Court held that the right to make offers being open to a limited class of persons, it effectively shut out all other persons carrying on trade in kendu leaves and also new entrants into that business. It was, therefore, ex facie discriminatory and imposed unreasona¬ble restrictions upon the right of persons other than existing contractors to carry on business. 37. In State of Haryana Vs. It was, therefore, ex facie discriminatory and imposed unreasona¬ble restrictions upon the right of persons other than existing contractors to carry on business. 37. In State of Haryana Vs. Jage Ram, AIR 1983 SC 1207 , State action for not allowing all persons to participate in auction for liquor contract was challenged. The Court held that it was not open to the Excise Authorities to pick and choose a few persons only as the recipients of the notice of re-auction. There was no explanation as to how they came to be chosen and what their status and standing in the trade were to justify the choice. The conduct of the authorities was thought not above suspicion. 38. The Supreme Court in Ram & Shyam Company Vs. State of Haryana, AIR 1985 SC 1147 ; and Chinchu Rami Reddy Vs. Government of Andhra Pradesh, AIR 1986 SC 1158 , held that the pubic officials entrusted with the care of pubic property were required to show exemplary vigilance and the property should be disposed of by adopting the best method that may be a public auction and not by private negotiation. The Court concluded the law as under :- “State-owned or public-owned property is not to be dealt with at the absolute discretion of the executive. Certain pre¬cepts and principles have to be observed. Public interest is the paramount consideration. One of the methods of securing the public interest, when it is considered necessary to dispose of a property, is to sell the property by public auction or by invit¬ing tenders. Though that is the ordinary rule, it is not an invariable rule. There may be situations where there are compel¬ling reasons necessitating departure from the rule but then the reasons for the departure must be rational and should not be suggestive of discrimination. Appearance of public justice is as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism.” 39. In Kasturi Lal Lakshmi Reddy v. State of J. & K., AIR 1980 SC 1992 , the Supreme Court examined a case where the State Government entered into an agreement with a private party to sell resin at the rate of Rs.320/- per quintal, while the market rate had been varying from Rs.484 to 700/- per quintal. In Kasturi Lal Lakshmi Reddy v. State of J. & K., AIR 1980 SC 1992 , the Supreme Court examined a case where the State Government entered into an agreement with a private party to sell resin at the rate of Rs.320/- per quintal, while the market rate had been varying from Rs.484 to 700/- per quintal. The Court observed:- “The government, therefore, cannot, for example, give a contract or sell or lease out its property for a consideration less than the highest that can be obtained for it, unless of course there are other considerations which render it reasonable and in public interest to do so. Such considerations may be that some directive principle is sought to be advanced or implemented or that the contract or the property is given not with a view to earning revenue but for the purpose of carrying out a welfare scheme for the benefit of a particular group or section of people deserving it or that the person who has offered a higher consid¬eration is not otherwise fit to be given the contract or the property .........But one basic principle which must guide the Court in arriving at its determination on this question is that there is always a presumption that the governmental action is reasonable and in public interest and it is for the party chal¬lenging its validity to show that it is wanting in reasonableness or is not informed with public interest. This burden is a heavy one and it has to be discharged to the satisfaction of the Court by proper and adequate material. The Court cannot lightly assume that the action taken by the government is unreasonable or with¬out public interest because, as we said above, there are a large number of policy considerations which must necessarily weigh with the government in taking action and therefore the Court would not strike down governmental action as invalid on this ground, unless it is clearly satisfied that the action is unreasonable or not in public interest. But where it is so satisfied, it would be the plainest duty of the Court under the Constitution to invalidate the governmental action.......The yardstick of price in the open market would be wholly inept, because in view of the State poli¬cy, there would be no question of any resin being sold in the open market. But where it is so satisfied, it would be the plainest duty of the Court under the Constitution to invalidate the governmental action.......The yardstick of price in the open market would be wholly inept, because in view of the State poli¬cy, there would be no question of any resin being sold in the open market. The object of the State in such a case is not to earn revenue from sale of resin, but to promote the setting up of industries within the State.” (Emphasis added). 40. Similarly, in Aggarwal & Modi Enterprises (P) Ltd. & Anr. Vs. New Delhi Municipal Council, (2007) 8 SCC 75 , the Supreme Court after placing reliance upon large number of its earlier judgments including State of U.P. Vs. Shiv Charan Sharma, AIR 1981 SC 1722 ; Sterling Computers Ltd. Vs. M & N Publications Ltd. (1993) 1 SCC 455; Mahesh Chandra Vs. Regional Manager, U.P. Finan¬cial Corpn., AIR 1993 SC 935 , Committee of Management of Pa¬chaiyappa’s Trust Vs. Official Trustee of Madras, (1994) 1 SCC 475 ; Chairman & MD SIPCOT Vs. Contromix (P) Ltd., AIR 1995 SC 1632 ; New India Public School Vs. HUDA, AIR 1996 SC 3458 ; State of Kerala Vs. M. Bhaskaran Pillai, AIR 1997 SC 2703 ; and Haryana Financial Corpn. Vs. Jagdamba Oil Mills, (2002) 3 SCC 496 , held as under :- “The methodology which can be adopted for receiving maximum consideration in a normal and fair competition would be the public auction which is expected to be fair and transparent. Public auction not only ensures fair price and maximum return it also militates against any allegation of favouritism on the part of the Government authorities while giving grant for disposing of public property. The Courts have accepted public auction as a transparent means of disposal of public property.” 41. However, the aforesaid settled principles may be devi¬ated in an appropriate case where implementation of the policy decision so require. 42. In Sachidanand Pandey & Anr. v. State of West Bengal & Ors., AIR 1987 SC 1109 , the Apex Court dealt with a case of establishment of a Five Star Hotel in Calcutta wherein the land had been allotted by negotiations rather than inviting tenders or holding the auction. 42. In Sachidanand Pandey & Anr. v. State of West Bengal & Ors., AIR 1987 SC 1109 , the Apex Court dealt with a case of establishment of a Five Star Hotel in Calcutta wherein the land had been allotted by negotiations rather than inviting tenders or holding the auction. The Apex Court while considering the issue reconsidered its large number of judgments including Rashbihari Panda (supra); R.D. Shetty (supra); and Kasturi Lal Lakshmi Reddy (supra), and came to the conclusion as under :- “In the present case as earlier explained by us direct negotiation with those who had come forward with proposals to construct Five Star Hotels was without doubt the most reasonable and rational way of proceeding in the matter rather than inviting tenders or holding public auction. There was nothing discrimina¬tory in the procedure adopted since no other leading hotelier had shown any inclination to come forward. Tenders and auction were most impractical in the circumstances.... The observations of the Court in the light of the facts therein appear to fully justify the action of the West Bengal Government in the present case not inviting tenders or not holding public auction. (Emphasis added). 43. The Court further observed that it is to be seen that in the present case no one has come forward alleging that he has been discriminated against and his fundamental right to carry on business had been affected. The very nature of the construction and establishment of a Five Star Hotel is indicative of a re¬quirement of expertise and sound financial position on the part of those who might offer to construct and establish them. The decision taken by the All India Tourism Council was an open decision well known to everyone in the hotel business. Yet no one except the ITDC and the Taj Group of Hotels had come forward with any proposal. We have it in the record that the Oberoi Group of Hotels already had a Five Star Hotel in Calcutta while the Wel¬come Group of Hotels were making their own private negotiations and arrangements for establishing a Five Star Hotel. In the cir¬cumstances, particularly in the absence of any leading hoteliers coming forward, the Government of West Bengal was perfectly justified in entering into negotiation with the ITDC and the Taj Group of Hotels instead of inviting tenders. 44. In the cir¬cumstances, particularly in the absence of any leading hoteliers coming forward, the Government of West Bengal was perfectly justified in entering into negotiation with the ITDC and the Taj Group of Hotels instead of inviting tenders. 44. A similar view has been reiterated by the Apex Court in Brij Bhushan & Ors. Vs. State of J & K & Ors., AIR 1986 SC 1003 ; and M.P. Oil Extraction Vs. State of M.P. & Ors., (1997) 7 SCC 592 . 45. In Bannari Amman Sugars Ltd. Vs. Commercial Tax Officer & Ors., (2005) 1 SCC 625 , the Supreme Court explained the scope of judicial review as under : “Reasonableness of restrictions is to be determined in and objective manner and from the standpoint of interests of the general public and not from the standpoint of the interests of persons upon whom the restrictions have been imposed or upon abstract consideration. A restriction cannot be said to be unrea¬sonable merely because in a given case, it operates harshly. In determining whether there is any unfairness involved, the nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing condition at the relevant time enter into the judicial verdict, the reasonableness of the legitimate expectation has to be determined with respect to the circum¬stances relating to the trade or business in question. Canalisa¬tion of a particular business in favour of even a specified individual is reasonable where the interests of the country are concerned or where the business affects the economy of the coun¬try. (See Parbhani Transport Coop. Society Ltd. v. RTA, AIR 1960 SC 801 ; Hari Chand Sarda v. Mizo Distt Council, AIR 1967 SC 829 ; Shree Meenakshi Mills Ltd. v. Union of India, AIR 1974 SC 366 ; Krishnan Kakkanth v. Govt. of Kerala, AIR 1997 SC 128 ; and Union of India v. International Trading Co, (2003) 5 SCC 437 .” (Empha¬sis added). 46. It is also settled legal proposition that under com¬pulsive situation, an instrumentality of State can dispose of the public property to an individual by negotiation instead of auc¬tion and it will not necessarily be in contravention of Article 14 of the Constitution of India. But such a course is permissible under compulsion and not by compromise. 46. It is also settled legal proposition that under com¬pulsive situation, an instrumentality of State can dispose of the public property to an individual by negotiation instead of auc¬tion and it will not necessarily be in contravention of Article 14 of the Constitution of India. But such a course is permissible under compulsion and not by compromise. (Vide Haji T.M. Hassan Rawther Vs. Kerala Financial Corporation, AIR 1988 SC 157 ; Chair¬man & MD SIPCOT (supra); and G.D. Zalani & Anr. Vs. Union of India & Ors., AIR 1995 SC 1178 ). 47. In State of U.P. & Ors. Vs. Vijaya Bahadur Singh & Ors., AIR 1982 SC 1234 , the Supreme Court examined a case where the highest bid in an auction for forest lots was ignored and the land had been given to the forest Corporation at a much cheaper rate. The issue as to whether in such an eventuality, the highest bidder had any right to challenge the order of the Government on the ground that the State suffered huge loss, was considered. The Court repelled the contention of the highest bidder observing that as per the conditions incorporated in the auction notice, the Government was not bound to accept the highest bid and no right had accrued to the bidder merely because his bid happened to be the highest. The Government was competent to refuse to accept the highest bid and there may be variety of good and sufficient reasons, apart from inadequacy of bids, which may impel the Government not to accept the highest bid. The Court further observed as under : “.... It is true that the auction held on 1st, 3rd and 4th November fetched bids totalling Rs.1 crore 92 lakhs which was 71 per cent over the estimated price of the timber. This was far, far above any amount that might be expected to be realised from the Forest Corporation. In our view that would not make the decision of the Government arbitrary. In the first place the bids were fantastically high and therefore, became suspect. One must wonder how such bids could be offered if the bidders did not propose to indulge in illicit felling. The State is not merely Interested in realising revenue but is equally interested in the preservation and development of forests. In the first place the bids were fantastically high and therefore, became suspect. One must wonder how such bids could be offered if the bidders did not propose to indulge in illicit felling. The State is not merely Interested in realising revenue but is equally interested in the preservation and development of forests. It cannot knowingly enter into, contracts with bidders who must have, at the back of their minds the opportunity or the gamble of illicit felling of trees. In the-second place the Corporation is a wholly Government owned, Corporation dedicated to the better preservation and developments of forests and the better exploitation of forest produce. The profits of the Corporation are in truth the profits of the State itself. The circumstance that the Corporation may not be able to pay the same price as forest contractors cannot be a reason for denying the Government the right to give effect to legislative policy....” 48. While inviting applications/tenders etc., the Authority is to prescribe the norms/benchmark etc. in order to provide certainty and such norms/benchmark should be precise and clear. “‘Certainty’ is an important aspect of the rule of law”. Objec¬tivity is to be provided. “As long as the norms are clear and properly understood by the decision maker and stockholders”, uncertainty and thereby breach of rule of will not arise. (Vide Reliance Airport Developers (P) Ltd. v. Airport Authority of India, (2006) 10 SCC 1 ; and Reliance Energy Ltd. & Anr. v. Maharashtra State Road Development Corporation Ltd. & Ors., (2007) 8 SCC 1 ). 49. Thus, the law on the issue can be summarised that State/Public owned property be transferred by inviting tenders or by auction for receiving the highest consideration. In exceptional circumstances, where the policy decision, public interest, economic policy or development of a particular industry etc. so warrant, property may be settled even by negotiation. However, State action should be reasonable, fair and in public interest. The onus to prove otherwise is on the person challeng¬ing the State action whimsical, unreasonable, unfair. 50. Thus, in view of the above the matter is required to be examined as to whether in the instant case the property should have been alienated in favour of the opposite party No.5 by giving a lease/licence for 15 years without inviting tenders etc. 51. 50. Thus, in view of the above the matter is required to be examined as to whether in the instant case the property should have been alienated in favour of the opposite party No.5 by giving a lease/licence for 15 years without inviting tenders etc. 51. Admittedly, the opposite party No.1 in its counter affidavit has fairly conceded that for paucity of funds, the Corporation could not afford to invite tenders or bidders by giving advertisement in newspapers having wide circulation. The relevant part thereof is as under : “Since paper advertisement is costly, it was decided to paste the tender notice at the spot and in the office of Taha¬sildar, Sundargarh and Collector, Sundargarh, office of D.T.M., Rourkela, Tender paper was available with D.T.M., Rourkela and Head Office for sale.” 52. Be that as it may, we fail to understand as to how the Corporation could negotiate with any person without initiating the procedure prescribed by law for settling the immovable property in favour of a third person. It is not evident by any means as to how the opposite party No.5 came to the scene and how he started negotiation with the Corporation as admittedly he had never submitted any tender whatsoever. If we take note of the factual averments taken by the parties in the earlier writ peti¬tion No.9497 of 2007 as well as in this petition, it is evident that tender inviting notices were affixed at certain offices in pursuance of the order dated 24/29th March, 2007 and in response thereof only three tenders were submitted. Mr. Mukesh Prasad Jaiswal, Mr. Kuldip Pratap Deo and Mr. Kameswar Tiwari submitted their tenders on 11.4.2007. But opposite party No.5 had never submitted any tender at any stage whatsoever. The documents placed on record in the earlier writ petition reveal that in August, 2006 negotiations had also taken place between the Corpo¬ration with one Sri D.K. Jaiswal, who was willing to have the lease @ Rs.1.05 lakh per month. However, it is not evident, nor anybody is willing to disclose as to whether he was the opposite party No.5 or any other person. 53. However, it is not evident, nor anybody is willing to disclose as to whether he was the opposite party No.5 or any other person. 53. The note dated 12th March, 2007, in the office file of the Corporation which was placed on record in the earlier writ petition also reveal that one Shri Deokaran Prasad Jaiswal depos¬ited Rs.5,00,000/- (five lakh) as security deposit and submitted a plan for the purpose of construction with a offer that he would pay Rs.50,000/- per month towards monthly rent. It was also prior to the decision of the Corporation to call for tenders. 54. Learned counsel for the Corporation was not in a position to explain that even the tender notice was affixed on the notice board of some offices in pursuance of the order dated 24/29th March, 2007, how negotiations could take place prior to the said notices. 55. Learned counsel for the opposite parties could not explain if the notice for inviting tenders was issued at a much belated stage, how the opposite party No.5 could deposit the security prior to 12th March, 2007. There is nothing on record to show that any decision had ever been taken prior to 5/7 April, 2007 to call for tenders. 56. A part of the notes by the Addl. E.O. of the Corpora¬tion dated 16.12.2006 on the file of the Corporation at page 23 is also worth taking note, as it reads as under : “..As per kind orders of C.M.D. I along with Sri N.R. Pari¬da, A.E.I/C proceeded to Sundargarh on 15.12.2006 to have a discussion with the Collector and S.P., Sundargarh regarding collection of parking fees at OSRTC land Sundargarh. On our arrival at Sundargarh the D.T.M., Rourkela had already reached Sundargarh and one D.K. Jaishwal, who is a local man discussed with D.T.M., Rourkela, came forward to take the bus stand and A.T.M. Office site on lease basis. On preliminary negotiation he agreed to pay Rs.1.05 lakh as monthly rent for utilisation of both the sites...” 57. In view of the aforesaid nothings in the files make it crystal clear that the authorities of the Corporation had already taken a decision to settle the bus stand in favour of opposite party No.5. The authorities for the reason best known to them had taken a conscious decision not to give adherence to the constitu¬tional mandate. In view of the aforesaid nothings in the files make it crystal clear that the authorities of the Corporation had already taken a decision to settle the bus stand in favour of opposite party No.5. The authorities for the reason best known to them had taken a conscious decision not to give adherence to the constitu¬tional mandate. No statutory rules dealing with alienation of properties of the Corporation have been brought to our notice. The agreement impugned being arbitrary and hit by the equality clause enshrined in Article 14 of the Constitution cannot be enforced in law. Being the Trustee of public property, the of¬fices of the Corporation could not have any negotiation with any individual without giving opportunity to the people at large to participate in auction or submitting their tenders. Having nego¬tiation directly with any private person by following the proce¬dure not known in law tantamounts to colourable exercise of power. Paucity of funds for giving advertisement cannot be a ground to dispense with the mandatory requirement of inviting tenders by issuing advertisement in newspapers having wide circu¬lation. It was not a case where the property could be settled with the respondent No.5 by negotiation. There is not a single stringent condition which could force the Corporation to have a distress transaction. For the reasons that we are inclined to allow the writ petition on this limited ground, it is not neces¬sary for the Court to enter into any other factual or legal con¬troversy any further. Under no circumstances, this Court is under obligation to protect such a void contract in respect of such a valuable property. In such a fact situation there can be no hesitation for this Court to observe that the conduct of the officers of the Corporation has been reprehensible. The entire exercise made by the Corporation is unwarranted, uncalled for and is farce. 58. The writ petition succeeds and is allowed. The agree¬ment dated 13.04.2007 (Annex.1) is hereby quashed. No cost. However, it shall be open to the Corporation, if so advised, to initiate the proceeding for alienation of its property in accordance with law. B.N. MAHAPATRA, J. I agree. Petition allowed.