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2014 DIGILAW 904 (HP)

Gurbachan v. State of Himachal Pradesh

2014-07-15

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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JUDGMENT Mansoor Ahmad Mir, J. 1. By the medium of the present writ petition, the petitioner has sought writ of certiorari seeking quashment of order, dated 05.05.2012 (Annexure P-1) and writ of mandamus commanding respondents No. 1 & 2 to allow veterinary dispensary to function at village Kosri, Tehsil Nalagarh, District Solan, on the grounds taken in the memo of the writ petition. 2. Precisely, the case of the petitioner is that the respondents-Department of Animal Husbandry have opened veterinary dispensary in Village Kosri, Tehsil Nalagarh, District Solan, which is functioning in a room provided/donated by the villagers of the said village alongwith furniture, i.e. table and chairs; village Kosri is situated at a central place; the respondents-State Government without any reason have issued notification dated 05.05.2012 (Annexure P-1), whereby decision was made to open the said dispensary in village Lunus, which is not in the interest of inhabitants of entire Gram Panchayat Lunus and the general public; village Lunus is not centrally located place. The shifting order dated 05.05.2012 (Annexure P-1) is against the public interest, bad in law, arbitrary and malafie. 3. Respondents No. 1 & 2 have filed reply to the writ petition. 4. Respondents No. 3 & 4, who came to be arrayed as party respondents in the writ petition vide order dated 19.07.2012, on motion dated 05.07.2012, have also resisted the writ petition, on the grounds taken in their reply/objections. 5. Learned Counsel for the petitioner argued that the decision regarding shifting of the veterinary dispensary from Village Kosri to Village Lunus is wrong as it is not in the public interest. 6. It is not mentioned in the writ petition how and on what grounds the quashment of shifting order of the veterinary dispensary from Village Kosri to Village Lunus, dated 05.05.2012 (Annexure P-1) is sought. Neither any malafide nor any arbitrariness is alleged in the writ petition. 7. The respondents No. 1 & 2 have averred in their reply that the Government has made a conscious decision in the public interest. The petitioner in terms of Annexure R-3/1, dated 06.02.2011, has stated that opening of the said veterinary dispensary in village Lunus is in public interest and prayed for opening of the same in the said village. He is the signatory of the said Annexure R-3/1, then how he can make ‘U’ turn. 8. The petitioner in terms of Annexure R-3/1, dated 06.02.2011, has stated that opening of the said veterinary dispensary in village Lunus is in public interest and prayed for opening of the same in the said village. He is the signatory of the said Annexure R-3/1, then how he can make ‘U’ turn. 8. The petitioner is caught by his conduct and law of estoppel. He cannot blow hot and cold and the averments contained in the writ petition are contrary to Annexure R-3/1, supra. 9. It is a beaten law of land that Government decision and policy cannot be subject matter of a writ petition, unless its arbitrariness is shown in the decision making process. 10. It is averred that the residents of the villages of Gram Panchayat Lunus have made demand for sanctioning and opening the said veterinary dispensary at the said place, which is centrally located and is feasible also. 11. The Apex Court in Sidheshwar Sahakari Sakhar Karkhana Ltd. vs. Union of India and others, 2005 AIR SCW 1399, has laid down the guidelines and held that Courts should not interfere in policy decision of the Government, unless there is arbitrariness on the face of it. 12. The Apex Court in a latest decision reported in Manohar Lal Sharma vs. Union of India and another, (2013) 6 SCC 616 , also held that interference by the Court on the ground of efficacy of the policy is not permissible. It is apt to reproduce paragraph 14 of the said decision as under: “14. On matters affecting policy, this Court does not interfere unless the policy is unconstitutional or contrary to the statutory provisions or arbitrary or irrational or in abuse of power. The impugned policy that allows FDI up to 51% in multi-brand retail trading does not appear to suffer from any of these vices.” 13. The Apex Court in the case titled as Mrs. Asha Sharma versus Chandigarh Administration and others, reported in 2011 AIR SCW 5636 has held that policy decision cannot be quashed on the ground that another decision would have been more fair, wise, scientific or logical and in the interest of society. It is apt to reproduce para 10 of the aforesaid judgment herein: “10. The Government is entitled to make pragmatic adjustments and policy decisions, which may be necessary or called for under the prevalent peculiar circumstances. It is apt to reproduce para 10 of the aforesaid judgment herein: “10. The Government is entitled to make pragmatic adjustments and policy decisions, which may be necessary or called for under the prevalent peculiar circumstances. The Court may not strike down a policy decision taken by the Government merely because it feels that another decision would have been more fair or wise, scientific or logic. The principle of reasonableness and non-arbitrariness in governmental action is the core of our constitutional scheme and structure. Its interpretation will always depend upon the facts and circumstances of a given case. Reference in this regard can also be made to Netai Bag vs. State of West Bengal, (2000) 8 SCC 262 : AIR 2000 SC 3313 .” 14. It appears that the respondents-State Government have examined all aspects and made the decision. Thus, it cannot be said that the decision making process is bad. The Court can not sit in appeal and examine correctness of policy decision. The Apex Court in the case titled as Bhubaneswar Development Authority and another versus Adikanda Biswal and others, reported in (2012) 11 SCC 731 has laid down the same principle. It is apt to reproduce para 19 of the judgment, supra, herein: “19. We are of the view that the High Court was not justified in sitting in appeal over the decision taken by the statutory authority under Article 226 of the Constitution of India. It is trite law that the power of judicial review under Article 226 of the Constitution of India is not directed against the decision but is confined to the decision making process. The judicial review is not an appeal from a decision, but a review of the manner in which the decision is made and the Court sits in judgment only on the correctness of the decision making process and not on the correctness of the decision itself. The Court confines itself to the question of legality and is concerned only with, whether the decision making authority exceeded its power, committed an error of law, committed a breach of the rules of natural justice, reached an unreasonable decision or abused its powers.” 15. The Court confines itself to the question of legality and is concerned only with, whether the decision making authority exceeded its power, committed an error of law, committed a breach of the rules of natural justice, reached an unreasonable decision or abused its powers.” 15. This Court in the judgments delivered in CWP No. 621 of 2014, titled as Nand Lal & another versus State of H.P. & others and CWP No. 7115 of 2013, titled as Sher Singh versus State of H.P. & others, has also laid down the same proposition of law. 16. It is not known in which capacity, the petitioner has filed the present writ petition-whether on behalf of the villagers of village Kosri in the representative capacity or in the public interest or on his own behalf. Learned Counsel for the petitioner was not able to justify it. Having said so, the writ petition is dismissed, so also the pending application(s), if any.