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2019 DIGILAW 794 (GAU)

Yongnyah Village v. State of Nagaland

2019-06-26

A.K.GOSWAMI, MANISH CHOUDHURY

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JUDGMENT : ARUP KUMAR GOSWAMI, J. 1. Heard Mr. S. Dutta, learned senior counsel for the appellant. Also heard Ms. M Kechi, learned State counsel appearing for all the respondents. 2. This intra-Court appeal is directed against the order dated 29.4.2019 whereby W.P.(C) No. 191(K)/2018 filed by the present appellant was dismissed. 3. This is the second round of litigation on an issue as to whether the new Polytechnic Institute under the Central Scheme Project should be set up at Yongnyah Village or Hukphang Village, both within the district of Longleng, Nagaland. It appears that originally a decision was taken to set up the Polytechnic Institute at Yongnyah Village. There was some opposition to the approved site and, as a result thereof, an Independent Committee was constituted to examine the matter of selection of site for the Institute. The Independent Committee in pursuance of the Notification dated 15.7.2016 conducted physical inspection/verification of four sites, namely, Yongnyah Village, Orangkong Village, Hukphang Village and Bhumnyu Village. Upon such site inspection, a report was submitted with the opinion that the site at Hukphang or Orangkong may be considered for establishing the Polytechnic at Longleng district. 4. A writ petition being WP(C) No. 218 (K)/2016 came to be instituted against the decision of the State Government conveyed by communication dated 17.6.2016 issued by the Under Secretary to the Government of Nagaland deciding to set up the Polytechnic Institute at Yongnyah village. By an order dated 11.9.2017, the aforesaid writ petition was dismissed holding that it was the prerogative of the Government to decide on the location or site of the Polytechnic. It was also observed that no direction can be given by the Court unless, while implementing the policy of the Government, there is violation or infringement of any constitutional or statutory provision. 5. Challenging the aforesaid order dated 11.9.2017 passed in W.P.(C) No. 218(K)/2016, a writ appeal being W.A. No. 297/2017 was preferred. The writ appeal was also dismissed by an order dated 23.11.2017. The Court, while dismissing the writ appeal, noted that the Independent Committee nowhere stated that the already approved site at Yongnyah was unsuitable for the Polytechnic Institute. The Court also, on perusal of the records, came to the conclusion that it was not a case where the State Government did not consider the report of the Committee. The Court, while dismissing the writ appeal, noted that the Independent Committee nowhere stated that the already approved site at Yongnyah was unsuitable for the Polytechnic Institute. The Court also, on perusal of the records, came to the conclusion that it was not a case where the State Government did not consider the report of the Committee. The Court reiterated that the decision to select a site for setting up an Institute is within the domain of the State Government and the Court should be reluctant in interfering with such decision. 6. On a query of the Court, we have been informed that no tangible progress had been made with regard to establishment of the Polytechnic Institute even though a considerable period of time had elapsed since the passing of the aforesaid order dated 23.11.2017. The second round of litigation commenced with filing of W.P.(C) No. 191 (K)/2018 against the decision of the State Government dated 5.10.2018, whereby in supersession of the earlier letter dated 17.6.2016, approval was granted for selection of Hukpang as the site for setting up the Polytechnic under Longleng district. The learned Single Judge by the impugned order dated 29.4.2019, as noted earlier, had dismissed the writ petition. 7. Mr. S. Dutta, learned senior counsel for the appellant has submitted that the affidavit-in-opposition in the case was filed by the State respondents on 23.4.2019 and the writ petition came to be dismissed six days later without granting any opportunity to the petitioner to deal with the affidavit-in-opposition though such a prayer was made. He has further submitted that in the fact situation, the learned Single Judge was in error in concluding that no legal right of the petitioner has been infringed, in as much as, it is not a case simpliciter where the petitioner has challenged the decision of the Government to set up a polytechnic, but it is a case where with the change in Government, the earlier decision was overturned and a new site was approved. He has submitted that there can be no justification to tinker with the earlier decision taken by the Government with regard to selection of site and the entire decision for change of site is taken on political considerations and the same does not subserve public interest. He has submitted that there can be no justification to tinker with the earlier decision taken by the Government with regard to selection of site and the entire decision for change of site is taken on political considerations and the same does not subserve public interest. He has submitted that the genesis of the decision lies in the representation submitted by the villagers of Hukphang village and, therefore, it is not an independent exercise of decision making. Mr. Dutta has also contended that the Independent Committee exceeded its brief in opining which place is to be selected as it had no business to make any recommendation. In support of his submissions, Mr. Dutta has relied on the decisions of the Apex Court in Mangalam Organics Ltd. Vs. Union of India, (2007) 7 SCC 221; U.P. State Road Transport Corporation Vs. Suresh Chand Sharma, (2010) 6 SCC 555 ; Shimnit Utsch India Private Limited & Anr. Vs. West Bengal Transport Infrastructure Development Corporation Limited & Ors., (2010) 6 SCC 303 and State of Tamil Nadu & Ors. Vs. K. Shyam Sunder & Ors., (2011) 8 SCC 737 . 8. By producing the relevant records, Ms. Kechi, learned State counsel has submitted that there was a stalemate, as a result of which, the project was in limbo and an amount of Rs. 2 Crores sanctioned for the Polytechnic would have lapsed. Countering the submission of Mr. Dutta, she submits that though in the earlier round of litigation this Court had approved the decision of the Government to set up the Polytechnic Institute at Yongnyah village, it cannot be countenanced that for good and sufficient reason, the Government is divested of the discretion to change the location and in the instant case a conscious decision was taken on ground realities to change the site to Hukphang village. She submits that though the foundation stone was laid in Yongnyah village, as no money has been expended for the project, there will be no loss to Government exchequer with the change of site. It is submitted by Ms. Kechi that no interference is called for with the order of the learned Single Judge. 9. We have considered the submissions of the learned counsel for the parties and have perused the materials on record. We have also perused the records produced by Ms. Kechi. 10. It is submitted by Ms. Kechi that no interference is called for with the order of the learned Single Judge. 9. We have considered the submissions of the learned counsel for the parties and have perused the materials on record. We have also perused the records produced by Ms. Kechi. 10. The learned Single Judge has opined that the Division Bench in the earlier round of litigation in WA No. 297/2017 had not recorded any finding that Yongnyah village is most suitable for establishment of the Polytechnic Institute and, therefore, no finality was attached by the Division Bench of this Court to the Government's earlier decision for establishment of the Polytechnic Institute at Yongnyah and, therefore, it cannot be construed that the State Government cannot change or review the decision with regard to site for constructing the Polytechnic. Having observed thus, the learned Single Judge also observed that the petitioner cannot be said to be an aggrieved person and, therefore, there being no violation of any fundamental, statutory or legal rights, the petitioner village has no locus standi to file the writ petition. 11. Even assuming that the writ petitioner could have maintained the writ petition, the question that has fallen for consideration is whether the decision of the Government for change of site can receive judicial imprimatur. The Independent Committee was set up for submission of physical inspection/verification report. A perusal of the Notification dated 15.7.2016 goes to show that the Independent Committee was directed to examine the matter of selection of site and, therefore, it cannot be construed that the Independent Committee could not have rendered its opinion which amongst the four sites/locations, according to it, was more suitable for setting up of the Polytechnic Institute. The Committee was of the opinion that for selecting a site for establishment of an Institute of such importance, due consideration should be given for the convenience of all stakeholders such as students, teachers, staff, parents and other logistical aspects and that the site should have the scope for its optimum growth and success. It was in that context, the Committee was of the opinion that one of the two sites, namely, Hukphang or Orangkong may be considered for establishing Polytechnic at Longleng district. The site at Hukpang village is on National Highway about 3-4 Km from Longleng District Hq. It was in that context, the Committee was of the opinion that one of the two sites, namely, Hukphang or Orangkong may be considered for establishing Polytechnic at Longleng district. The site at Hukpang village is on National Highway about 3-4 Km from Longleng District Hq. and the site at Yongnyah village is about 25 Km from Longleng District Hq. and it was noted that the site at Yongnyah appeared to be remote and isolated for establishing an Institute. In respect of Hukpang village, it was noted that a new approach road needs to be constructed. As noted earlier, the Government on consideration of the report of the Independent Committee, had stuck to its original decision. 12. A perusal of the records would go to show that the Government needed to resolve the issue at the earliest as the department was not in a position to utilise the amount of Rs. 2 Crores which had been sanctioned and, therefore, the Minister-in-Charge was requested to decide the matter. The Minister after perusal of the AICTE norms and the Committee report observed that Hukpang has nearby facilities of medical, banking and motorable road and, therefore, it is the best location for setting up of the Polytechnic and, accordingly, approved the location at Hukpang. 13. We have perused the decisions cited by Mr. Dutta and we are of the considered opinion that in the fact situation, the ratio laid down in the aforesaid cases does not help the case of the appellant. In the case of Shimnit (supra), it was held that Government policy can be changed with changing circumstances and only on the ground of change, such policy will not be vitiated as Government has a discretion to adopt a different policy. In Mangalam Organics (supra), the Hon'ble Supreme Court held that where the statute vests a discretionary power in an administrative authority, the Court would not interfere with the exercise of such discretion unless it is made with oblique end or extraneous considerations. In Suresh Chand Sharma (supra), the Hon'ble Supreme Court emphasised that giving of reasons is an essential element of administration of justice. In K. Shyam Sunder (supra), the Hon'ble Supreme Court has observed that the State should not change its stand merely because another political party has come to power. 14. In Suresh Chand Sharma (supra), the Hon'ble Supreme Court emphasised that giving of reasons is an essential element of administration of justice. In K. Shyam Sunder (supra), the Hon'ble Supreme Court has observed that the State should not change its stand merely because another political party has come to power. 14. In a matter of the present nature, it cannot be laid down as a proposition that the Government having selected a site is not empowered to change the decision. Decision to set up a Polytechnic Institute in a particular site is basically an administrative decision. No doubt, the decision to set up the Institute at Yongnyah was upheld in the earlier round of litigation, but that was on the ground that it was the prerogative of the Government to decide on the location. As rightly held by the learned Single Judge, comparative merits of the locations at Yongnyah and Hukphang had not even remotely been considered. Therefore, it cannot be said that the Government is denuded of its power to change the site if good and sufficient reasons warrant such a course of action. Though the Committee Report does not say that the site at Yongnyah village has nearby facilities of medical and banking, the observation of the Minister to that effect has to be understood in the background of the fact that the site at Hukpang village is about 3-4 Ks from the District Hq. Therefore, it cannot be construed that the impugned decision has been taken on wholly irrelevant and extraneous considerations. 15. Taking the aforesaid view, we find no good ground to interfere with the order of the learned Single Judge. 16. Accordingly, the appeal is dismissed.