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Allahabad High Court · body

2017 DIGILAW 905 (ALL)

KRISHNA PRATAP KAUSHIK v. STATE OF U. P.

2017-03-31

DILIP B.BHOSALE, YASHWANT VARMA

body2017
JUDGMENT By the Court.—Describing himself as a public spirited person and a social worker, the petitioner had instituted these proceedings in public interest seeking the following reliefs: “(a) Issue a writ, order or direction in the nature of Mandamus directing the respondent No. 4 to investigate the allegations made in the affidavit against respondent No. 2. (b) Issue a writ, order or direction in the nature of Mandamus directing the respondent No. 3 to produce the records of the transactions mentioned in the petition and any other transaction found to be instigated by corruption that are discovered during the investigation and declare the same as null and void. (c) Issue a writ, order or direction the in the nature of Mandamus directing the Respondent No. 1 to remove the respondent No. 2 from the post of MD UPSIDC. (d) Issue any other relief which this Hon’ble Court deem just and proper in the circumstances of the case may also be passed. (e) Award the cost of the writ petition to the petitioner.” 2. During the course of oral submissions on 8 February 2017, Sri Yatin Oza, the learned Senior Counsel appearing in support of the petition, had primarily urged that the allotments made in favour of the fifth and sixth respondents by the U.P. State Industrial Development Corporation (hereinafter referred to as “the Corporation”) had been effected without any advertisement and that a huge tract of land had come to be allotted in their favour only on the basis of an application. Upon it being pointed out that the fifth and sixth respondents had not even been arrayed as party respondents, Sri Oza had sought leave to amend the writ petition which was granted on the same date. Consequently, the fifth and sixth respondents were added in the array of parties. The Court also noted the the statement made on behalf of the Corporation (which was represented by counsel even on that date) that it would not execute any lease deed in their favour. Parties were thereafter directed to exchange pleadings on the writ petition. The petitioner thereafter filed an amendment application which was allowed and as a consequence of which the following additional prayers were also claimed in the writ petition. “(Ca). issue a writ order or direction in the nature of certiorari quashing the allotment of land made in favour of the respondents No. 5 & 6. (Cb). The petitioner thereafter filed an amendment application which was allowed and as a consequence of which the following additional prayers were also claimed in the writ petition. “(Ca). issue a writ order or direction in the nature of certiorari quashing the allotment of land made in favour of the respondents No. 5 & 6. (Cb). issue a writ order or direction in the nature of mandamus directing the respondent No. 2 to cancel the allotment made in favour of the respondent No. 5 & 6 and further direct the respondent No. 4 to investigate as to the reason behind such an allotment.” 3. From the reliefs as claimed, it is apparent that the challenge raised was to the allotments made in favour of the fifth and sixth respondents only. We are constrained to note this on account of the fact that Sri Oza had in the course of his oral submissions contended that not just the allotments made in favour of the fifth and sixth respondents but also various other allotments had been made in violation of the policy of the Corporation and in any view of the matter in breach of the mandate of Article 14. However, no details of these alleged allotments were disclosed either in the writ petition or in the subsequent rejoinder-affidavit which was filed on behalf of the petitioner. It is in the above backdrop that we now proceed to note the rival contentions. 4. The petitioner as noted above, sought the issuance of directions commanding the Corporation to produce the relevant records in respect of the transactions of which mention stood made in the writ petition. In the writ petition, it was averred that the allotments of large tracts of land was being made in utter violation of the principles which must inform a decision of an instrumentality of the State which proceeds to distribute or grant largesse. These allegations as noted above, were primarily made in respect of the allotments made in favour of the fifth and sixth respondents. It was averred that initially the allotment was made in favour of the fifth respondent on 29 August 2016 without any advertisement having been issued by the Corporation inviting offers from interested parties. These allegations as noted above, were primarily made in respect of the allotments made in favour of the fifth and sixth respondents. It was averred that initially the allotment was made in favour of the fifth respondent on 29 August 2016 without any advertisement having been issued by the Corporation inviting offers from interested parties. In the writ petition, the categorical case set up was that the allotment came to be made in favour of the fifth and sixth respondents directly on an application made by the concerned respondents and despite various objections having been raised to the proposed allotment by the Joint Managing Director. The allotment in favour of the fifth respondent was further sought to be brought under cloud upon the assertion that the initial allotment made in its favour was subsequently surrendered and a fresh allotment made in its favour on 28 September 2016. Insofar as the sixth respondent is concerned, it was alleged that the allotment made in its favour on 22 December 2016 was not preceded by the issuance of any advertisement and the allotment itself came to be finalised by the second respondent bypassing the Joint Managing Director. A further reading of paragraph 25 onwards of the writ petition carry the allegation of the petitioner against various acts of misfeasance committed by the second respondent. It is alleged in the writ petition that the second respondent was favouring one Anil Verma and that he was indulging in acts which were likely to cause pecuniary loss to the Corporation. The allegations as contained in the writ petition thereafter swayed towards the working and conduct of certain other officers and employees of the Corporation, the transfers being made by the second respondent. Put in a nutshell, the thrust of the allegations was that the affairs of the Corporation were being mismanaged and the second respondent at the helm of its affairs was indulging in acts of nepotism and corruption. Although we have noticed the various allegations levelled in the writ petition in brief, it needs mention at this stage itself that the oral submissions advanced on behalf of the petitioner before us centered and revolved around and upon the allotments made in favour of the fifth and sixth respondents only. 5. Although we have noticed the various allegations levelled in the writ petition in brief, it needs mention at this stage itself that the oral submissions advanced on behalf of the petitioner before us centered and revolved around and upon the allotments made in favour of the fifth and sixth respondents only. 5. Reiterating the allegations levelled in the writ petition, it was asserted by Sri Oza that no policy which countenanced the submission and entertainment of applications directly by interested parties could be upheld by the Court. It was his submission that the issuance of an advertisement or an invitation of offers was clearly mandated by Article 14 and since the Corporation had failed to adopt the said procedure, the allotments made in favour of the private respondents were liable to be faulted on this ground alone. In support of his submission, Sri Oza principally placed reliance upon the judgment rendered by this Court itself in M/s Indus Technical Education Society v. State of U.P. and others, Writ-C No. 17859 of 2016 decided on 21.12.2016; and submitted that the importance of an offer being publicly made by a Corporation which was proposing to distribute or grant State largesse was a constitutional imperative. He submitted that the absence of an adequate advertisement and a public invitation would clearly taint the process of grant as arbitrary and illegal. 6. It however, becomes pertinent to note that the Corporation had, by the time this petition was set down for final hearing, already filed its return in these proceedings. One of the primary defences taken by the Corporation was that the allotments made in favour of the fifth and sixth respondents had been made in accordance with a policy formulated by the Corporation which envisaged applications being received in certain exceptional situations which included applications by units with a proposed projected investment of Rs. 100 crores. It was contended by the Corporation that this policy of the Corporation had been duly approved by its Board in its 271st meeting and thereafter duly published in the shape of an “Operating Manual” in 2011 itself. It was further pointed out that this policy framed by the Corporation was not a private document but had been duly circulated and also published on its website. It was further pointed out that this policy framed by the Corporation was not a private document but had been duly circulated and also published on its website. The contention of the Corporation therefore, was that the allotments made in favour of the fifth and sixth respondents were based upon a policy decision of the Corporation itself which had been duly publicised thus enabling all intending entrepreneurs, who proposed to establish industry within the State with a projected investment of Rs. 100 crores or more to apply. This disclosed stand of the Corporation was not refuted or disputed by Sri Oza. In fact he categorically stated that the writ petition as framed did not challenge the policy framed by the Corporation and in fact the policy has not been challenged in the writ petition nor did Sri Oza make any attempt to challenge the policy. 7. Sri Oza then further contended that the allotment made in favour of the fifth respondent was firstly discussed in a meeting of officials of the Corporation on 27 August 2016 wherein the Joint Managing Director had raised various objections. He submitted that certain other objections were again raised on 29 August 2016 and that despite the reservations so expressed by the Joint Managing Director, a lease deed came to be executed in favour of the fifth respondent on 6 October 2016. Sri Oza further contended that the Committee which analyzed the proposals submitted by the private respondents comprised of various low ranking officials who were only holding higher posts in officiating capacity. The entire flavour of the submission was that the second respondent had steamrolled his subordinates in order to ensure the allotment of land in favour of the fifth and sixth respondents. 8. Sri Nadkarni, the learned Additional Solicitor General, who appeared for the Corporation refuting the submissions advanced by Sri Oza contended that the entire premise or bedrock upon which the writ petition stood and rested was fallacious. He contended that the Court had been given and conveyed an incorrect impression that the allotment to the private respondents was not preceded by any public offer or advertisement. He referred to the contents of the Operating Manual and the provisions enumerated therein to contend that the allotments made in favour of the fifth and sixth respondents was in terms of the provisions contained in Chapter-2 of the said Manual. He referred to the contents of the Operating Manual and the provisions enumerated therein to contend that the allotments made in favour of the fifth and sixth respondents was in terms of the provisions contained in Chapter-2 of the said Manual. He further submitted that this was not a case where an application from the fifth and sixth respondents was entertained and processed behind closed doors. It was his submission that the provisions of the policy had been duly made known to all interested persons and was in the public domain. According to Sri Nadkarni, it was open to any interested person, who desired to establish an industry or business entailing an investment of Rs. 100 crores or more to take advantage of the said policy and to apply for allotment. Sri Nadkarni, the learned Additional Solicitor General, further submitted that the issue of allotment as made in favour of the fifth and sixth respondents is liable to be viewed in light of the changed economic scenario where various States and their entities compete with each other in order to attract investment. He submitted that project proponents who seek to establish industries envisaging such huge capital expenditure cannot be expected to stand in queue. In respect of such projects applications are necessarily to be entertained by the Corporation which itself has been established with a view to achieve and augment the industrialization of the State and to generate employment opportunities. Sri Nadkarni then submitted that the Joint Managing Director had only raised certain queries during the course of deliberations which took place while evaluating the application made by the private respondents. It was his submission that these queries were duly addressed and taken note of and the allotment itself effected upon the culmination of a collective decision of the Corporation. Even the change of location, Sri Nadkarni submitted was effected after following due process. Sri Nadkarni also drew our attention to a list of allotments which had been made by the Corporation with reference to the provisions of the policy in terms of which the fifth and sixth respondents came to be allotted the plots in question. These allotments which stood detailed in Annexure CA-13 evidence 15 such allotments having been made during the period 2012-14 by the Corporation by entertaining applications which were received by it directly in terms of the provisions contained in Chapter-2 of the Operating Manual. These allotments which stood detailed in Annexure CA-13 evidence 15 such allotments having been made during the period 2012-14 by the Corporation by entertaining applications which were received by it directly in terms of the provisions contained in Chapter-2 of the Operating Manual. Of the aforementioned 15 allotments, 12 related to project which envisaged investment of Rs. 100 crores or more and thus fell in the category of exceptional cases provisioned for under clause (d) comprised in Chapter 2. Sri Nadkarni further highlighted the fact that after 2014, the allotments made in favour of the fifth respondents were the first in this category. It was therefore, contended that it would be incorrect for it to be assumed that the Corporation regularly entertains applications for allotment directly without the issuance of an advertisement. The submission essentially was that projects entailing an investment of Rs. 100 crores or more clearly fell in a different and distinct class and were therefore, treated as being of an exceptional category requiring separate treatment in terms of the policy framed by the Corporation. In order to further underline and highlight the bona fides of the Corporation in respect of the allotments in question, Sri Nadkarni submitted that 2752 acres of land was still available for allotment by the Corporation in the area where the fifth respondent proposed to establish its industry. Against the area still available with the Corporation, it was highlighted that only 89 acres had been allotted to the fifth respondent. It was further submitted that no prior application for allotment of the same extent of land had either been ignored nor were there any competing demands for allotment which were overlooked in order to confer any undue benefit or advantage upon the fifth and sixth respondents. Sri Nadkarni then submitted that the lack of bona fides of the petitioner is evident from the fact that although the present Managing Director joined only on 1 August, 2016, no challenge was laid by the petitioner to any prior allotment. Sri Nadkarni in fact raised a scathing attack on the bona fides of the PIL petitioner and asserted that the instant petition was clearly guided by ulterior motives. Sri Nadkarni in fact raised a scathing attack on the bona fides of the PIL petitioner and asserted that the instant petition was clearly guided by ulterior motives. Referring to the principles enunciated by the Supreme Court in Ashok Kumar Pandey v. State of U.P., (2004) 3 SCC 349 and in T.N. Godavarman Thirumulpad v. Union of India and others, (2006) 5 SCC 28 , Sri Nadkarni contended that the PIL petitioner had failed to undertake the requisite enquiry which must necessarily precede the preferment of a petition in public interest. He submitted that a public interest litigant is clearly obliged to verify the correctness of the nature of information which he places before the Court and that he is duty bound to ensure that the material and information placed for the consideration of the Court is reliable. In the facts of the present case, Sri Nadkarni submitted that the petition had made reckless allegations without bringing to the attention of the Court the existence of the policy framed by the Corporation in terms of which the allotments came to be made in favour of the fifth and sixth respondents. Taking his submissions further on this issue and which were adopted and reiterated by Sri Kavin Gulati, learned Senior Counsel appearing for the second respondent, it was submitted that a reading of the entire petition clearly established that it was based upon oblique motives. It was in this connection pointed out that the petition appeared to have been preferred at the instance and behest of one Arun Kumar Mishra in order to exert pressure upon the Corporation and the second respondent. Reference was made in this connection to various orders passed upon writ petitions preferred by Sri Arun Kumar Misra, an officer of the Corporation and the orders passed by the Lucknow Bench of the Court on the same as also to the orders passed by the Supreme Court in special leave petitions preferred by the Corporation as well as the State Government. It was asserted that the allegations levelled by the aforementioned officer of the Corporation in his writ petition preferred before the Lucknow Bench of the Court were identical to those made in the instant public interest litigation. It was asserted that the allegations levelled by the aforementioned officer of the Corporation in his writ petition preferred before the Lucknow Bench of the Court were identical to those made in the instant public interest litigation. Reference was specifically made to paragraph 13 D of Writ Petition No. 23459 (S/B) of 2016 wherein the said officer had while alleging various acts of misfeasance against the second respondent directly referred to the allotment made in favour of the fifth respondent. The attention of the Court was also invited to certain Annexures filed by the petitioner in these proceedings, all of which in the submission of the learned counsel for the respondents had been obtained from the office of the aforementioned officer of the Corporation. All this in the submission of the learned counsel for the respondents was clearly indicative of the institution of the PIL being a vehicle utilized by the said officer to malign the reputation of the second respondent and to advance the ulterior motives of the officer concerned. 9. In so far as the fifth and sixth respondents are concerned, they have also filed affidavits in these proceedings wherein they assert that the applications for allotments were made in light of the Infrastructure and Industrial Investment Policy framed by the State Government read with the policy framed by the Corporation itself. They assert that the policy of the Corporation was duly available on its website and the application itself came to be made by them pursuant to the above. In so far as the fifth respondent is concerned it submits that it was desirous of establishing a bottling plant for Pepsi entailing an investment of Rs. 336 crores. The fifth respondent further clarifies that although initially it was offered a plot on 29 August 2016 at village Salaon, District Raibareli since the Corporation could not hand over physical possession of the same, it had applied for allotment of an alternate site vide its application dated 5 September 2016. It further refers to another application made on 9 September 2016 in terms of which it requested for allotment of land at Sandila Industrial Area in the District of Hardoi. In this application, the fifth respondent disclosed the project investment in the project to be the tune of Rs. It further refers to another application made on 9 September 2016 in terms of which it requested for allotment of land at Sandila Industrial Area in the District of Hardoi. In this application, the fifth respondent disclosed the project investment in the project to be the tune of Rs. 437.96 crores, the increase being on account of added investment needed for the establishment of a solar power generation plant and added building construction, plant and machinery. It is its case that the project is likely to generate direct and indirect employment to as many as 1700 people. It is this application of the fifth respondent, which was ultimately granted by the Corporation on 28 September 2016. The fifth respondent has further in its affidavit disclosed that it has already issued work orders and letters of intent to the tune of Rs. 308.17 crores out of which it has already paid Rs. 124.15 crores and has further obtained credit facilities to the tune of Rs. 200 crores from the HDFC bank. Similarly the sixth respondent has referred to its application dated 14 December 2016 for setting up a grain based distillery and bottling plant at an estimated cost of Rs. 125 crores. It refers to the fact that not only would the said industry provide employment to 350-400 persons, it would also generate added revenue in the State in the shape of VAT and other levies and taxes. It is in the above backdrop that we now proceed to deal with the rival submissions. However before proceeding to do so it would be apposite to notice and enunciate the contours within the boundaries of which the challenge is liable to be tested. 10. On settled constitutional principles, the grant or conferment of largesse must conform to the following basic tenets : (a) An open invitation enabling all interested parties to be aware of the proposed disposal or distribution of resources; (b) A fair, transparent and unbiased procedure for selection of the recipient; and (c) A level playing field enabling all eligible entities to participate in the distribution process. 11. To put it pithily, the primary issue which falls for judicial scrutiny in all such cases is whether the process adopted by the State for grant, distribution or conferment of largesse was fair and in accord with the principles enshrined in Article 14 of the Constitution. 11. To put it pithily, the primary issue which falls for judicial scrutiny in all such cases is whether the process adopted by the State for grant, distribution or conferment of largesse was fair and in accord with the principles enshrined in Article 14 of the Constitution. This necessarily postulates an enquiry on the question whether there was notice to all interested parties enabling them to participate and whether the process of identification of the ultimate recipient as adopted was fair, transparent and not arbitrary. The process for selection must answer the characteristics of being unbiased, not designed to confer undue advantage upon any particular applicant and untainted by the vice of nepotism or favourtism. In other words, the process must not be discredited by the conferment of favour upon any individual, be even handed and not restricted to those who may have access to what is commonly described as “the corridors of power”. These are the basic attributes of a fair and transparent process of selection and identification. This aspect was dealt with in some detail by this Court in M/s Indus Technical Education Society in the following words : “From the above principles elucidated by the Supreme Court in its various judgements referred to above, it is apparent that the exercise of judicial review of an action of the State granting largess is primarily aimed at testing as to whether a fair, equitable and non discriminatory procedure preceded the grant or not. Favoritism and nepotism are anathema to a fair and non arbitrary method of allotment as mandated by Article 14. The policy to be adopted by the State authority must be one which is transparent and based upon an objective criteria. The action under review must be established to be one which has not been tainted by elements of favoritism or an effort to confer undue favour. Another important aspect which must necessarily be borne in mind is the necessity of an invitation and advertisement being made by the State before the grant of largess. An advertisement or invitation enables all persons falling within the same class to be able to participate and be considered for the grant of largess. In fact an invitation or advertisement prior to the grant or allotment ensures that persons who may be otherwise eligible are not excluded. An advertisement or invitation enables all persons falling within the same class to be able to participate and be considered for the grant of largess. In fact an invitation or advertisement prior to the grant or allotment ensures that persons who may be otherwise eligible are not excluded. Absence of adequate advertisement and a public invitation in fact, in our considered view, would be indicative of a discriminatory and arbitrary process adopted by the State in the grant of largess. The absence of an invitation of public offers itself casts an impervious shadow upon the entire process and taints it from inception. No policy of the State dealing with allotment of land which envisages the entertainment of applications behind closed doors can possibly be countenanced. Such policies raise the specter of the conferment of benefit to the chosen who frequent the corridors of power. It was a procedure akin to what has been described above, which did not find favor in the Coal Block Allocation matters.” 12. The second related aspect which must also bear notice is the policy within the broad framework of which the State undertakes the exercise of distribution or disposal of resources. While a particular policy may be aimed at obtaining the maximum revenue from the disposal of the resource, this is not a constitutional imperative. It is open to the State to formulate a policy which is not aimed at maximisation of revenue but one which aims at achievement of another goal or measure for the benefit of the public at large. In the latter category fall the specie of policy measures which aim at achieving industrialisation, creation of infrastructure, generation of job opportunities or the development of a backward region of a State or other like public purposes. In the changed economic scenario and the avowed emphasis on industrialisation and creation of infrastructure, it is open to a State entity to adopt measures to attract investment and invite entities in furtherance of the above policy objectives. In the very nature of such policy initiatives, the issue of revenue maximisation, to some extent, fades into the backdrop for the reason that the primary objective is the achievement of certain other and more imperative future and long term objectives. This aspect has been duly noticed in various judgments by the Supreme Court. In the very nature of such policy initiatives, the issue of revenue maximisation, to some extent, fades into the backdrop for the reason that the primary objective is the achievement of certain other and more imperative future and long term objectives. This aspect has been duly noticed in various judgments by the Supreme Court. However rather than multiplying precedents on the subject, we deem it appropriate to only refer to the following extracts from the judgment of the Supreme Court in Natural Resources Allocation, In re, Special Reference No. 1 of 2012, (2012) 10 SCC 1 , in support of our above observations : “116. The learned counsel for CPIL argued that revenue maximisation during the sale or alienation of a natural resource for commercial exploitation is the only way of achieving public good since the revenue collected can be channelised to welfare policies and controlling the burgeoning deficit. According to the learned counsel, since the best way to maximise revenue is through the route of auction, it becomes a constitutional principle even under Article 39(b). However, we are not persuaded to hold so. Auctions may be the best way of maximising revenue but revenue maximisation may not always be the best way to subserve public good. “Common good” is the sole guiding factor under Article 39(b) for distribution of natural resources. It is the touchstone of testing whether any policy subserves the “common good” and if it does, irrespective of the means adopted, it is clearly in accordance with the principle enshrined in Article 39(b). 119. The norm of “common good” has to be understood and appreciated in a holistic manner. It is obvious that the manner in which the common good is best subserved is not a matter that can be measured by any constitutional yardstick—it would depend on the economic and political philosophy of the Government. Revenue maximisation is not the only way in which the common good can be subserved. Where revenue maximisation is the object of a policy, being considered qua that resource at that point of time to be the best way to subserve the common good, auction would be one of the preferable methods, though not the only method. Where revenue maximisation is not the object of a policy of distribution, the question of auction would not arise. Revenue considerations may assume secondary consideration to developmental considerations. 122. Where revenue maximisation is not the object of a policy of distribution, the question of auction would not arise. Revenue considerations may assume secondary consideration to developmental considerations. 122. In Kasturi Lal Lakshmi Reddy v. State of J&K [ (1980) 4 SCC 1 ], while comparing the efficacy of auction in promoting a domestic industry, P.N. Bhagwati, J. observed: (SCC p. 20, para 22) “22. ... If the State were giving a tapping contract simpliciter there can be no doubt that the State would have to auction or invite tenders for securing the highest price, subject, of course, to any other relevant overriding considerations of public weal or interest, but in a case like this where the State is allocating resources such as water, power, raw materials, etc. for the purpose of encouraging setting up of industries within the State, we do not think the State is bound to advertise and tell the people that it wants a particular industry to be set up within the State and invite those interested to come up with proposals for the purpose. The State may choose to do so, if it thinks fit and in a given situation, it may even turn out to be advantageous for the State to do so, but if any private party comes before the State and offers to set up an industry, the State would not be committing breach of any constitutional or legal obligation if it negotiates with such party and agrees to provide resources and other facilities for the purpose of setting up the industry. The State is not obliged to tell such party: ‘’Please wait I will first advertise, see whether any other offers are forthcoming and then after considering all offers, decide whether I should let you set up the industry.’ ... The State must be free in such a case to negotiate with a private entrepreneur with a view to inducing him to set up an industry within the State and if the State enters into a contract with such entrepreneur for providing resources and other facilities for setting up an industry, the contract cannot be assailed as invalid so long as the State has acted bona fide, reasonably and in public interest. If the terms and conditions of the contract or the surrounding circumstances show that the State has acted mala fide or out of improper or corrupt motive or in order to promote the private interests of someone at the cost of the State, the Court will undoubtedly interfere and strike down State action as arbitrary, unreasonable or contrary to public interest. But so long as the State action is bona fide and reasonable, the Court will not interfere merely on the ground that no advertisement was given or publicity made or tenders invited.” 123. In Sachidanand Pandey [ (1987) 2 SCC 295 ] after noticing Kasturi Lal case [ (1980) 4 SCC 1 ] it was concluded as under: (Sachidanand Pandey case [ (1987) 2 SCC 295 ], SCC p. 330, para 40) “40. On a consideration of the relevant cases cited at the Bar the following propositions may be taken as well established: State-owned or public-owned property is not to be dealt with at the absolute discretion of the executive. Certain precepts 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 inviting tenders. Though that is the ordinary rule, it is not an invariable rule. There may be situations where there are compelling reasons necessitating departure from the rule but then the reasons for the departure must be rational and should not be suggestive of discrimination. Appearance of public justice is as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism.” 127. In 5 M&T Consultants v. S.Y. Nawab [2003) 8 SCC 100], this Court again reiterated that non-floating of tenders does not always lead to the conclusion that the exercise of the power is arbitrary: “17. A careful and dispassionate assessment and consideration of the materials placed on record does not leave any reasonable impression, on the peculiar facts and circumstances of this case, that anything obnoxious which require either public criticism or condemnation by Courts of law had taken place. A careful and dispassionate assessment and consideration of the materials placed on record does not leave any reasonable impression, on the peculiar facts and circumstances of this case, that anything obnoxious which require either public criticism or condemnation by Courts of law had taken place. It is by now well-settled that non-floating of tenders or absence of public auction or invitation alone is no sufficient reason to castigate the move or an action of a public authority as either arbitrary or unreasonable or amounted to mala fide or improper exercise or improper abuse of power by the authority concerned. Courts have always leaned in favour of sufficient latitude being left with the authorities to adopt its own techniques of management of projects with concomitant economic expediencies depending upon the exigencies of a situation guided by appropriate financial policy in the best interests of the authority motivated by public interest, as well as undertaking such ventures.” 128. In Villianur Iyarkkai Padukappu Maiyam v. Union of India [ (2009) 7 SCC 561 ], a three-Judge Bench of this Court was concerned with the development of the port of Pondicherry where a contractor had been selected without floating a tender or holding public auction. It was held as under: (SCC pp. 604-05, paras 164 & 171) “164. The plea raised by the learned counsel for the appellants that the Government of Pondicherry was arbitrary and unreasonable in switching the whole public tender process into a system of personal selection and, therefore, the appeals should be accepted, is devoid of merits. It is well-settled that non-floating of tenders or not holding of public auction would not in all cases be deemed to be the result of the exercise of the executive power in an arbitrary manner. *** 171. In a case like this where the State is allocating resources such as water, power, raw materials, etc. for the purpose of encouraging development of the port, this Court does not think that the State is bound to advertise and tell the people that it wants development of the port in a particular manner and invite those interested to come up with proposals for the purpose. for the purpose of encouraging development of the port, this Court does not think that the State is bound to advertise and tell the people that it wants development of the port in a particular manner and invite those interested to come up with proposals for the purpose. The State may choose to do so if it thinks fit and in a given situation it may turn out to be advantageous for the State to do so, but if any private party comes before the State and offers to develop the port, the State would not be committing breach of any constitutional obligation if it negotiates with such a party and agrees to provide resources and other facilities for the purpose of development of the port.” 129. Hence, it is manifest that there is no constitutional mandate in favour of auction under Article 14. The Government has repeatedly deviated from the course of auction and this Court has repeatedly upheld such actions. The judiciary tests such deviations on the limited scope of arbitrariness and fairness under Article 14 and its role is limited to that extent. Essentially, whenever the object of policy is anything but revenue maximisation, the executive is seen to adopt methods other than auction. 131. Similar deviation from auction cannot be ruled out when the object of a State policy is to promote domestic development of any industry, like in Kasturi Lal Case [ (1980) 4 SCC1], discussed above. However, these examples are purely illustrative in order to demonstrate that auction cannot be the sole criterion for alienation of all natural resources.” 13. However this is not to say that in respect of such initiatives, the State is empowered to completely ignore the doctrine of “fairness in action” and all its attendant concomitants. All State action as is mandated by our Constitution must necessarily conform to the mandate of Article 14. The second factor which must necessarily imbue all such action is the principle of “common good” which flows from Article 39 (b). Having noticed the broad parameters upon which the challenge laid in the instant writ petition is liable to be tested, we proceed to deal with the merits of the matter. 14. The second factor which must necessarily imbue all such action is the principle of “common good” which flows from Article 39 (b). Having noticed the broad parameters upon which the challenge laid in the instant writ petition is liable to be tested, we proceed to deal with the merits of the matter. 14. As noted above, the entire edifice of the writ petition is based upon the allegation that the allotments were made in favour of the fifth and sixth respondents without any advertisement or any invitation having been issued inviting offers for allotment from other interested parties. This contention however, stands made in ignorance of the policy of the Corporation which enabled it to entertain applications from project proponents who were desirous of setting up industries entailing an investment of Rs. 100 crores or more. This as noted above was clearly provisioned for in Chapter-2 of the Operating Manual, the relevant extract of which reads as follows: “CHAPTER-2 ALLOTMENT/DOCUMENTATION/POSSESSION GUIDELINES/PROCEDURE FOR ALLOTMENT OF INDUSTRIAL PLOTS/STRUCTURES Normally applications for industrial plots shall be received only against advertisements published after approval of the Head Office. However as an exception, in following cases applications can be received even without advertisement: (a) Applications by Joint/Assisted Sector organizations of Central Government/State Government (b) Applications referred under any program operated by institutions/undertakings promoted by Central/State Government (c) Applications by Joint/Assisted Sector units of financial institutions of Government.of U.P./UPSIDC. (d) Applications by units with proposed projects investment of Rs. 100 crores (e) Applications by 100% export oriented units. (f) Applications by NRI entrepreneurs/units proposed to be established with foreign capital investment. The applications fulfilling any of above requirements may be accepted without advertisement and shall be forwarded to Head Office by the Regional Manager with recommendations clearly mentioning the category. Allotment in such cases shall be approved by Managing Director on merits. Applications not falling in above categories and made suo moto shall be returned back to the applicant within 7 days advising him to apply when advertisements are published.” 15. The policy which stands enumerated in the Operating Manual and the contents of the processes enumerated therein have been duly approved by the Board of the Corporation in its 271st meeting. The policy of allotment including the provisions contained in Chapter-2 are also stated to have been duly uploaded on the website of the Corporation. The policy which stands enumerated in the Operating Manual and the contents of the processes enumerated therein have been duly approved by the Board of the Corporation in its 271st meeting. The policy of allotment including the provisions contained in Chapter-2 are also stated to have been duly uploaded on the website of the Corporation. Not only this, the Corporation has averred that not just the contents of the policy but also the format of the application form was available on its website thus entitling any interested party to apply. These assertions have not been disputed by the petitioner either by way of his affidavits or in the course of oral submissions advanced on his behalf. In fact Sri Oza accepted that there was no challenge to the policy at all. The placement of the policy on the website of the Corporation as well as its insertion in the Operating Manual which was duly circulated, in our considered view, clearly satisfies the requirement of a fair, transparent and adequate offer to the public. It cannot therefore, be said that a person desirous of obtaining an allotment in an industrial area falling under the administration of the Corporation was unaware of the facility extended by it in respect of projects entailing investments of Rs. 100 crores or more. Additionally, we note that there is no challenge to the policy as adopted and implemented by the Corporation. From the material placed on the record before us, it is therefore, apparent that both the fifth and sixth respondents did apply for allotment of site in accordance with the policy framed by the Corporation. This policy initiated was clearly made know to all by way of a recognised mode of publication and therefore, the allotments cannot be faulted on this score. It also becomes relevant to note that it was not the case of the PIL petitioner that any other interested party stood handicapped from applying for allotment of a site on account of inadequate publicity of the policy framed by the Corporation. In fact as was contended by Sri Nadkarni, there existed no competing demands for allotment or prior applications which may have been overlooked by the Corporation while making an allotment in favour of the fifth and sixth respondents. In fact as was contended by Sri Nadkarni, there existed no competing demands for allotment or prior applications which may have been overlooked by the Corporation while making an allotment in favour of the fifth and sixth respondents. We are also constrained to note that in the counter-affidavit filed on behalf of the Corporation, a complete list of allotments made by it in terms of the policy right from 2012 has been placed on the record. Of the said allotments, as many as 12 out of the total of 15 were made with reference to clause (d) comprised in Chapter-2 of the Operating Manual and which relates to projects envisaging investment of Rs. 100 crores or more. The list of allotments reads as follows : S. No. Date Plot No. Applicant Name Area Industrial Applicable Category of Chapter-2 (Page 13 of Manual) Plot Area in Acres. 1. 4.7.2013 39 plots CREATIVE THERMOLITE POWER Bargarh-2 (d) 19 2. 15.5.2013 20 plots Amrapali Power And Cements Private Limited Bhuragarh (d) 17 3. 15.5.2013 8 plots Amrapali Power And Cements Private Limited Bhuragarh (d) 14 4. 8.5.2013 C-4, 6&7 M/S AOV Exports P. Ltd. Babrala (d) 13 5. 5.2.2013 BL-2 CRPF Trishundi (b) 100 6. 5.2.2013 BL-5 NATRIP Trishundi (b) 121 7. 14.1.2013 BULK LAND BANASKANTHA DIST COOP MILK PRODUCERS UNION LTD, P JAINPUR (Extention) Distt. Kanpur Dehat (d) 40 8. 2.7.2014 BULK LAND VARDAAN INDUSTRIES Pvt. Ltd. Kannauj (d) 29 9. 2.26.2014 A-6 GENESIS AGROFOODS PRIVATE LIMITED Khemsepur (d) 51 10. 8.8.2014 BULK LAND-2 PLATINUM BIO GREEN ENERGY Ltd. Kannauj (d) 25 11. 11.3.2015 A-1 M/s PRADESHIK COOPERATIVE DAIRY FEDERATION LTD. Kannauj (b) 8 12. 23.1.2014 B-9 M/s EKARA AGRO FOODS Pvt. Ltd. Sandila Phase-1 (d) 15 13. 26.12.2012 B-2 and others M/s LEATHER CLUSTER DEVELOPMENT Ltd. Sandila Phase-1 (d) 163 14. 26.12.2012 B-1 M/s D.D. MAREEN EXPORTS Pvt. Ltd Sandila Phase-1 (d) 25 15. 31.7.2013 H-1 B PART MS BANASKANTHA JILA SAHKARI DUGDH UTPADAN SANGH Karkhiaon (d) 30 16. The allotment in favour of the fifth and sixth respondents was therefore, not a measure or procedure adopted by the Corporation for the first time. Significantly, the petitioner does not challenge any allotment made in terms of the provisions of Clause (d) other than those made in favour of the fifth and sixth respondents. The allotment in favour of the fifth and sixth respondents was therefore, not a measure or procedure adopted by the Corporation for the first time. Significantly, the petitioner does not challenge any allotment made in terms of the provisions of Clause (d) other than those made in favour of the fifth and sixth respondents. The gap in time between the last allotment made by the Corporation in exercise of powers conferred by clause (d) and those made in favour of the fifth and sixth respondents is also of some significance. As Annexure CA-13 would show the last such allotment was made by the Corporation on 11 March 2015. It would therefore, be incorrect to either contend or suggest that the powers conferred upon the Corporation by clause (d) was either being resorted to confer undue benefit upon a chosen few or was being abused to circumvent the normal procedure mandated under the policy of the Corporation. 17. We also take note of the submission of Sri Nadkarni that the Corporation still holds 2752 acres of land in the area where an allotment has been made in favour of the fifth respondent. The fifth respondent, as is evident from the order of allotment had been allocated only 89 acres approximately. This is therefore, not a case where the entire or a major part of the land bank of the Corporation has been made over to the fifth respondent. All the above facts clearly evidence and underline the bona fides of the Corporation which itself stands established with the avowed objective of bringing about industrialisation in the State. The allegations of undue advantage or favour having been conferred by the second respondent are also not liable to be countenanced. 18. The second respondent is stated to have taken over office on 1 August 2016. As many as 15 allotments had been made by the Corporation in terms of the provisions of Clause (d) of its policy prior to his assuming the office of the Managing Director. As noted above, post 2014, the allotments made in favour of the fifth and sixth respondents were the first. Insofar as the so called objections raised by the Joint Managing Director are concerned, a perusal of the minutes of the meetings in which she was present, only indicate certain queries which were raised and clarifications sought. As noted above, post 2014, the allotments made in favour of the fifth and sixth respondents were the first. Insofar as the so called objections raised by the Joint Managing Director are concerned, a perusal of the minutes of the meetings in which she was present, only indicate certain queries which were raised and clarifications sought. The issues which stood raised in the meeting held on 27 August, 2016 were duly attended to and replied by the Regional Manager as is evident from the noting of 29 August 2016 which stands appended as Annexure CA-17 to the affidavit of the Corporation. It was only thereafter that a final decision for allotment of the land in favour of the fifth respondent was taken in the meeting of the Committee held on 29 August 2016. It becomes pertinent to note here that the decision taken on 29 August 2016 was a collective decision and not a decision of the second respondent taken individually. 19. We also take note of the fact that the rates at which allotments were made in favour of the fifth and sixth respondents were in accord with the calculations and final recommendations formulated by an Empowered Committee and a Monitoring Committee of the Government of U.P. which stood enumerated in the office order dated 23 May 2016. It is therefore, apparent and evident that the rates for allotment had already been mandated and fixed leaving no discretion in the hands of the Corporation. We may at this stage, also note a supplementary submission of Sri Oza, who contended that the rates which stood fixed under the office order dated 23 May 2016 were only relevant for Phases 1 and 2 of Sandila Industrial area and it was his contention that no rates had been fixed by the Empowered Committee for the land which stood allotted ultimately in favour of the fifth and sixth respondents. This aspect also does not carry the case of the petitioner any further when one bears in mind the provisions contained in clause 34 of the allotment letter which reads as follows: 34- vkoaVh ds i{k esa Hkw[k.M orZeku nj : 1030@& izfr oxZehVj ,oa fu;ekuqlkj izkfLFkfr 'kqYd ij bl 'krZ ds lkFk vkoafVr fd;k tk;sxk fd orZeku Hkw&nj esa funs'kd e.My ,oa 'kklu }kjk fu/kkZfjr mPpLrjh; lfefr ls vuqeksnuksijkUr ;fn mijksDr Hkw&njksa esa dksbZ vUrj vkrk gS rks ml vUrj dh /kujkf'k dks fuxe }kjk ekWxi= fuxZr djus ds 15 fnu ds vUnj vkoaVh dks tek djuk gksxkA ;fn vkoaVh }kjk mDr /kujkf'k tek ugha dh tkrh gS rks fuxe Hkw[k.M dk vkoaVu fujLr djus ds fy;s LorU= gksxk ftlds fy;s vkoaVh fdlh Hkh izdkj dh U;kf;d vFkok xSj U;kf;d okn nk;j ugha djsxk^^ 20. The said clause in unequivocal terms holds out that although the land was being allotted at the rate of Rs. 1030/- per square meter, in case the same is ultimately varied or enhanced by the Empowered Committee, the allottee would be liable to pay the additional cost within 15 days from the date of demand being raised by the Corporation upon the allottee. This also therefore, clearly safeguards the interests of the Corporation. From the above conspectus of facts, it is more than apparent that the allotments made in favour of the fifth and sixth respondents were in accord with the policy framed by the Corporation in terms of which it was entitled to entertain applications from entrepreneurs and interested parties, who sought to establish projects envisaging an investment of Rs. 100 crores or more. This policy measure stood duly published and extracted in the Operating Manual and was also uploaded on the website of the Corporation. The policy was therefore, available to be taken benefit of by any interested party desirous of establishing an industry entailing an investment of Rs. 100 crores or more. The applications submitted by and on behalf of the fifth and sixth respondents as noted above, clearly envisaged an investment of more than Rs. 100 crores and were thus eligible to be entertained and processed in terms of the provisions of clause (d) comprised in Chapter-2 of the Operating Manual. 100 crores or more. The applications submitted by and on behalf of the fifth and sixth respondents as noted above, clearly envisaged an investment of more than Rs. 100 crores and were thus eligible to be entertained and processed in terms of the provisions of clause (d) comprised in Chapter-2 of the Operating Manual. The applications so received were duly evaluated by the committee of the Corporation and the allotments themselves came to be made after due deliberation as is evident from the minutes of the various meetings which preceded the allotment and all of which have been brought on record by the Corporation. The policy of the Corporation has not been assailed in the writ petition. Having scrutinized it independently we do not find it to be in breach of the principles of fair play and Article 14 of the Constitution. This is also not a case where pre-existing applications for allotment were overlooked or the fifth and sixth respondents conferred undue favor. The action of the Corporation was therefore fair, reasonable and in furtherance of the “common good”. 21. We may while parting also note a submission advanced on behalf of the petitioner towards the end of the hearing when it was alleged that most of the officers, who participated in the deliberations which culminated in the finalisation of the allotments in favour of the fifth or sixth respondents were junior officers and persons who were only holding officiating charge of the positions in question. This submission had been duly refuted by the Corporation by filing a supplementary-affidavit on 8 March 2017 and in paragraph 5 whereof full details have been given in respect of the designation of the various members, who comprised the committee which had evaluated the applications of the fifth and sixth respondents. 22. Having dealt with the merits of the challenge, we are compelled to advert to the submissions touching upon the bona fides of the PIL petitioner. From a holistic reading of the writ petition it appears that the working of the second respondent was sought to be targeted and various allegations of misfeasance leveled. Serious aspersions stood cast based upon identical allegations leveled by an officer of the Corporation and adopted by the PIL petitioner. However since we have dealt with the issue on merits, we refrain and desist from ruling upon this issue. Serious aspersions stood cast based upon identical allegations leveled by an officer of the Corporation and adopted by the PIL petitioner. However since we have dealt with the issue on merits, we refrain and desist from ruling upon this issue. Be that as it may, a note of caution does need to be entered. Notwithstanding a PIL litigant being freed and unshackled from the normal rigors of procedure and he essentially standing in the position of an informant, it needs to be emphasized that a petition in public interest none the less must be presented upon facts which have been duly verified and after the PIL litigant having undertaken the requisite enquiry with regard to the veracity of the allegations levelled. The presentation of a petition in public interest must necessarily be preceded by due thought, circumspection, examination and analysis. If these aspects are not borne in mind, the Court would be unnecessarily burdened with matters which would unjustifiably clog its docket and compelling, serious claims side lined and pushed to the fringe of the justice delivery system. This aspect was highlighted in Ashok Kumar Pandey in the following terms : “14. The Court has to be satisfied about (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike balance between two conflicting interests; (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature. The Court has to act ruthlessly while dealing with imposters and busy bodies or meddlesome interlopers impersonating as public-spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect. 16. The Court has to act ruthlessly while dealing with imposters and busy bodies or meddlesome interlopers impersonating as public-spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect. 16. As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to note that Courts are flooded with large number of so called public interest litigations where even a minuscule percentage can legitimately be called as public interest litigations. Though the parameters of public interest litigation have been indicated by this Court in large number of cases, yet unmindful of the real intentions and objectives, Courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. Though in Dr. Duodenary Sahu and others v. Jitendra Kumar Mishra and others ( AIR 1999 SC 114 ), this Court held that in service matters PILs should not be entertained, the inflow of so-called PILs involving service matters continues unabated in the Courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision. The other interesting aspect is that in the PILs, official documents are being annexed without even indicating as to how the petitioner came to possess them. In one case, it was noticed that an interesting answer was given as to its possession. It was stated that a packet was lying on the road and when out of curiosity the petitioner opened it, he found copies of the official documents. Whenever such frivolous pleas are taken to explain possession, the Court should do well not only to dismiss the petitions but also to impose exemplary costs. It would be desirable for the Courts to filter out the frivolous petitions and dismiss them with costs as afore-stated so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the Courts.” 23. Again in T.N. Godhavarman the Supreme Court observed : “23. It would be desirable for the Courts to filter out the frivolous petitions and dismiss them with costs as afore-stated so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the Courts.” 23. Again in T.N. Godhavarman the Supreme Court observed : “23. Some unions have also tried to jump into the fray by filing applications seeking impleadment in these proceedings so as to contend that the allotment is of a forest land. We see no reason to allow the impleadment of parties in these proceedings. Be that as it may, we have to decide in the light of facts aforenoted, whether the land leased to Maruti is forest land or not. But before we examine the question of the nature of the land being forest or not, it is necessary to consider the bona fides of Deepak Agarwal who has approached this Court in public interest. Howsoever genuine a cause brought before a Court by a public interest litigant may be, the Court has to decline its examination at the behest of a person who, in fact, is not a public interest litigant and whose bona fides and credentials are in doubt. In a given exceptional case where bona fides of a public interest litigant are in doubt, the Court may still examine the issue having regard to the serious nature of the public cause and likely public injury by appointing an Amicus Curiae to assist the Court but under no circumstances with the assistance of a doubtful public interest litigant. No trust can be placed by Court on a mala fide applicant in public interest litigation. These are basic issues which are required to be satisfied by every public interest litigation.” 24. The present PIL petitioner made no effort to apprise the Court of the policy of the Corporation, he apparently made no effort to enquire into the past allotments made by the Corporation under this very policy initiative. The fact that the allotment rates had been fixed by high powered committees was also not disclosed. All this we note in light of the PIL petitioner otherwise having access to official documents and being privy to the internal decision making process of the Corporation. The fact that the allotment rates had been fixed by high powered committees was also not disclosed. All this we note in light of the PIL petitioner otherwise having access to official documents and being privy to the internal decision making process of the Corporation. All that we therefore do find necessary to observe is that the petitioner, like all other PIL litigants, must in future exercise due caution, undertake the requisite enquiry and examination of allegations levelled. 25. Accordingly and for all the reasons noted above, we find no merit in the instant petition which shall stand dismissed. All interim orders consequently stand discharged.