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2021 DIGILAW 438 (JK)

Imran Ali v. Union of India

2021-08-26

ALI MOHAMMAD MAGREY

body2021
ORDER : 1. The case of the Petitioner is that pursuant to advertisement notification dated 17th of September, 2018, as issued by the Respondent-Corporation, for commissioning of LPG Distributorship at Shargole, Kargil, under Open Merit category, the Petitioner submitted his application form, complete in all respects. This application form of the Petitioner is stated to have been considered by the Respondent-Corporation, whereafter, the Petitioner was declared as the only eligible candidate for the aforesaid location, however, no formal allotment was made by the Respondent Corporation on the ground that there was some defect in the lease deed of the Petitioner in respect of the land to be used for housing the godown of the LPG Distributorship insofar as the tenure of lease was concerned. Instead, the Respondent-Corporation is stated to have issued the impugned communication dated 2nd of January, 2019, thereby rejecting the candidature of the Petitioner, besides forfeiting the amount of Rs.40,000/- in tune with Clause 19 of Unified Guidelines for selection of Regular Distributorship Selection. This communication is assailed by the Petitioner through the medium of the Petition in hand on the grounds detailed therein. 2. Ms. Moksha Kazmi, the learned Senior Counsel, appearing for the Petitioner, submitted that the Petitioner was asked to arrange alternative land for housing the godown of the LPG Distributorship, whereafter, the Petitioner, immediately after being put on notice by the Respondent-Corporation, got the rectification deed executed and registered before the competent registering authority, whereby the defect pointed out by the Respondent-Corporation was removed. It is further pleaded that despite the Petitioner having rectified the defect, as pointed out by the Respondent-Corporation, his candidature was rejected in terms of the Order impugned illegally and arbitrarily. 3. Objections stand filed on behalf of the Respondents, resisting and controverting the averments made by the Petitioner in his Petition. It is submitted that since the lease deed submitted by the Petitioner commenced from 1st of September, 2018 for a period of 15 years, thereby falling short by more than 15 days from the date of advertisement, i.e., 17th of September, 2018, and, as such, the request of the Petitioner cannot be considered as per the policy governing the subject which clearly emphasizes that all documents submitted have to be on or before the last date of submission of application, viz. 16th of October, 2018. 4. 16th of October, 2018. 4. Heard the learned Counsel for the parties, perused the pleadings on record and considered the matter. 5. At the very outset, what requires to be stated, herein this Petition, is that the decision of the Respondents in rejecting the claim of the Petitioner has its genesis in the failure of the Petitioner to comply with the mandate of the policy governing the field. This decision appears to be a policy decision taken by the Respondent-Corporation. It is settled legal position that modern trend points to judicial restraint in administrative action/ policy decision and that the Court does not sit as a ‘Court of Appeal’, but merely reviews the manner in which the decision was made. It has also been declared that Court does not have the expertise to correct the administrative decision and that if a review of the administrative decision is permitted, it will be substituting its own decision, without the necessary expertise which itself may be fallible. Furthermore, fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere and quashing administrative decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. 6. The law is that public authorities must be left with the same liberty as they have in framing the policies. It is not possible for the Courts to question and adjudicate every decision taken by an authority because many of the Government Undertakings, which in due course have acquired the monopolist position in matters of sale and purchase of products and with so many ventures in hand, they can come out with a plea that it is not always possible to act like a quasi-judicial authority while taking administrative/ policy decision. Under some special circumstances, a discretion has to be conceded to the authorities by giving them liberty to assess the overall situation for purpose of taking a policy decision. If the decisions have been taken in bonafide manner, although not strictly following the norms laid down by the Courts, such decisions are upheld on the principle laid down by Justice Holmes that Courts, while judging the constitutional validity of executive decisions, must grant certain measure of freedom of ‘play in the joints’ to the executive. 7. If the decisions have been taken in bonafide manner, although not strictly following the norms laid down by the Courts, such decisions are upheld on the principle laid down by Justice Holmes that Courts, while judging the constitutional validity of executive decisions, must grant certain measure of freedom of ‘play in the joints’ to the executive. 7. Viewed in the above context, coupled with the fact that the decision taken by the Respondent-Corporation in rejecting the claim of the Petitioner for LPG Distributorship in question is a policy decision, which does not warrant any interference from this Court, I do not find any merit in this Petition, which is, accordingly, dismissed, along with any connected CM(s) therewith. Interim direction(s), if any, subsisting as on date, shall stand vacated.