Legality Of The Policy, Not Its Wisdom Or Soundness Is Subject Of Judicial Review U/A 226: Calcutta High Court

The Calcutta High Court on Wednesday has observed that policy decisions of the State are not to be disturbed unless they are found to be grossly arbitrary or irrational. 

While examining the scope of judicial review of an administrative action, Justice Shampa Sarkar observed, 

"The scope of judicial review when examining a policy of the government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or is manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review."

Reliance was also placed on the Supreme Court decision in Tata Cellular v. Union of India wherein the Apex Court had held that the terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract while upholding the need to exercise judicial restraint when it comes to administrative actions. 

The instant writ petition had been filed for a direction to quash the notice dated April 6, 2022 with regards to handing over the possession of the ferryghat to the Pradhan of the Mahanandatola Gram Panchayat, upon expiry of the lease of the petitioner. The petitioner was the operator of Kosi Passengers Ferry Ghat. Lease period of the petitioner had been ended on March 31, 2022.

The petitioner had contended that until the ferry ghat is settled by way of an open tender, the petitioner must be allowed to operate.

The Court noted that there exists no rules or circulars which permit continuation after expiry of the lease. Furthermore, the Court underscored that the Court while exercising its power of judicial review under Article 226 of the Constitution of India, cannot direct the authorities to allow the petitioner to operate until the open tender is finalised.

It was further opined that when the panchayat authorities themselves, have decided that the ferry ghat should be settled by public auction, such a policy decision cannot be interfered with under Article 226 of the Constitution.

"The auction notice has been issued as a policy decision and the court must refrain from interfering with the policies of the Government. There are no allegations of unreasonableness, arbitrariness and favouritism. The petitioner was himself awarded the settlement through a public auction which was held when the pandemic was in the rise", the Court elucidated further. 

It was further highlighted that the idea of open auction is to ensure maximization of revenue and the panchayat samity cannot be faulted for having taken a policy decision to go for open auction when the pandemic situation has improved considerably and normalcy has resumed in every aspect of life.

Accordingly, the Court disposed of the writ petition by observing, 

"Under such circumstances, as the panchayat authorities have decided to go for a public auction, the competent authority under the law, shall go for a public auction, at the earliest, and all eligible bidders including the petitioner shall be entitled to participate. The prayer for extension of the lease of the petitioner during the stop gap period cannot be granted by the court."

Case Title: Azizur Rahaman v. The State of West Bengal & ors

Case Citation: 2022 LiveLaw (Cal) 122 

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