ivil Appeal No 2036 of 1987
From the Judgment and Order dated 19111986 of the Bombay High Court in WP No 710of 1984
Aspi Chinai RF Nariman Miss Darshna Bhogilal KK Lahiri R Karanjawala Ejaz Maqbool and Mrs Manik Karanja wala for the Appellant
KK Singhvi Brij Bhushan and Anil Kumar Gupta for the Respondent in CMP No 19447 of 1988
G Ramaswamy Additional Solicitor General UJ Mukhi ja BS Basania Mrs AK Verma Arun Banga and DN Misra for the Respondent
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
This is an appeal by special leave from the judgment and order dated 19th November 1986 of the learned Single Judge of the Bombay High Court
In this appeal this Court has been asked to examine the fron tiers of judicial review of the action of a statutory au thority ie the Board of Trustees of the Port of Bombay in evicting its tenant and granting the land in question to another tenant
However in order to appreciate the contro versy it is necessary to have a conspectus of the facts involved
756 The respondent Board of Trustees of the Port of Bombay is a statutory authority
Vast areas of South Bombay which are completely tenanted are owned by the respondent
Being a statutory authority the respondent has been exempted from the operation of the relevant Rent Act
The respondent is a statutory corporation constituted under the Major Port Trust Act 1963 as amended by the Major Port Trust Amendment Act 1974
Between about 1906 and 1932 one Jhunjhunwala was the lessee of plot No 6 which adjoins plot 5B which is the suit plot and a building was existing on plot No 6 which was tenanted to Ms Bombay Bharat  Swadeshi Rice Mills and the said Mills were desirous of operating a rice mill on plot No 6 but could not get the licence from the Municipal ity for the operation of the said rice mill unless satisfac tory arrangement was made for the removal and storage of rice husk in a separate chamberstructure
Since about 1932 the appellant had been the lessee of the respondent in respect of part of the original plot No 4 now plot 5B which adjoins plot No 6 of the suit plot measuring 1134 sq rots
In or about 1933 34 with a view to acquire the suit plot and using the same for the rice milldust room Ms Bombay Bharat  Swadeshi Rice Mills took over the appellant
The dust room structure was constructed on the suit plot
The rice mill on plot No 6 and the dust room on the suit plot had a common wall and were inter connected by ducts
It was stated that the respondent s inspectors had regularly visited the premises in question but had never objected to the user of the rice milldust room
In Decem ber 57 the Town Planning Scheme No 1 in Bombay City came into force
The original plot No 4 was reconstituted into final plot No 5 but continued to belong to the respondent
The Scheme also stipulated that all rights of lesseetenants in the original plots stood transferred to the final plots
It may be noted that in December 57 original plot No 4 comprised of 1134 sq
let to the appellant 390 sq
let to Ms Dhanji Mavji 453 sq
let to two asso ciate firms Ms Gordhandas Ranchoddas and Ms Chunilal Gupta and 195 sq mts
let to Ms Vassanji Hirji
Hence of the final plot No 5 the appellant and their associates it was asserted held 569 sq mts
 Dhanji Mavji held 390 Vassanji Hirji held 195 sq rots
and the balance 155 sq
was with the respondentothers
Total area of final plot 5 was 1309 sq mts
From 1957 72 the respondent it is asserted continued the tenancies of the appellant and its associate firms
In or about 1963 however the respondent applied for and got final plot No 5 sub divided into final plot 5A 659 sq mts 757 and final plot 5B 650 sq mts
The suit plot and Ms Dhanji Mavji s plot fell entirely in final plot 5B and as a result of the sub division Dhanji Mavji became the tenantoccupant of a major portion of plot 5B
It is assert ed that appellant s associate firm and Chunilal Gupta fell in plot No 5A and became the tenantsoccupants of a major portion of plot No 5A
In 197 1 the Municipality renewed the mill licence covering both the structures
It is the case of the appellant that in 1970 71 the respondent arbitrarily agreed to let the entire plot 5B including the portion which had been let to and in the possession of the appellant since 1933 to Ms Dhanji Mavji and thereby agreed to give him 6506 sq
mrs against his existing 390 sq mts
Also the appellant offered to develop final plot 5B jointly with Dhanji Mavji in 1972 76
The appellant however asserted that it had offered to pay the revised rent that might be fixed by the respondent
The appellant objected to the offer made to Dhanji Mavji exclu sively and pointed out that the established practice of the respondent was to continue the existing tenants occupants on the final plots
The respondent however asserted that as Dhanji Mavji had been in possession of the major portion of plot No 5B 390 sq
vis a vis 1134 sq mts they agreed to let the entire plot to Dhanji Mavji and there fore could not entertain the appellant s request
In the premises by notices issued in 197 1 73 the respondent purported to terminate the tenancy of the appellant
In 1973 74 the Municipal Corporation auctioned the right title and interest of Jhunjhunwala and the respondent in plot No 6 for nonpayment of property taxes
An associate firm of the appellant Ms Natwar Parekh  Sons purchased plot No 6 and became the owner thereof
The case of the appellant was that the respondent got the Corporation to wrongfully exclude the respondent s interest from the con veyance
The said Natwar Parekh challenged such exclusion by filing writ petition No 5274 in the High Court
On 2671976 the writ petition was allowed and Natwar Parekh are now the owners of plot No 6
This according to the appellant caused resentment to the respondent and it offered Plot No 5A to the existing tenants ie the peti tioner s associates who held 453 sq
and Vassanji Hirji who held 195 sq
The petitioner s associates who held 70 of the plot 5A pointed out that the said Vassanji Hirji was not interested and that the entire plot should accordingly be given to them
The respondents declined and instead commenced eviction proceedings against all the three holders
In or about October 1977 the respondent issued one month s notice to the appellant to terminate the tenancy
In December 1977 the respondent filed suits Nos 447  60377 against the appellant in the Court of Small Causes Bombay
The 758 appellant filed its written statement and pleaded that the proceedings had been instituted mala fide and just to bene fit Dhanji Mavji and to harass the appellant s associates who had acquired the respondent s title to plot No 6
Secondly it was asserted that the premises had been ac quired and used for rice mill for 40 years and accordingly it could not be terminated by one month notice
The lease was for manufacturing purposes
Thirdly it was asserted that the notice of termination in any event had been waived by demanding and recovering rent enhanced rent
It is asserted that at the hearing the witnesses of the respondent had admitted that the plot would be given to Dhanji Mavji if the appellant was evicted therefrom
It also agreed that the respondent was under no statutory obligation to give the entire plot to Dhanji Mavji
On or about 31st March 1981 the Trial Court dismissed the suit holding that the appellant was admittedly using the plot for a rice mill for over 50 years to the knowledge of the respondent and it would be legitimate to infer that the letting was for a manufacturing purpose
Hence the notice of termination was bad
The Trial Court did not deal with the question of mala fide
On or about 13th January 1984 the appellate court reversed that decision and also held that the issue of mala fide or arbitrariness was not relevant on the legality of the eviction proceedings
Ag grieved thereby the appellant filed a writ petition No 71084 under Article 227 of the Constitution
The High Court dismissed the said writ petition by the judgment under appeal and upheld the order of eviction
The High Court accepted the finding of the appellate court that the notice of ejectment was valid notice and there was no waiver of notice
In our opinion the High Court was right on this aspect and in any event under Article 227 of the Constitu tion the High Court could not have gone into this question
We in an appeal under Article 136 of the Constitution cannot re appraise that question
The question that survived after the finding of the appellate court and which was urged mainly before the High Court and also in this appeal was whether the action of the respondent in evicting the appellant and granting the prem ises in question to Ms Dhanji Mavji was proper and right
It was contended on behalf of the appellant that the action of the respondent in terminating the appellant s contractual tenancy had a public law character attached to it and was accordingly subject to judicial review
It was asserted that every action of the respondent which was State  within Article 12 of the Constitution whether it be in the field of contract or any other field was subject to Article 14 of the Constitution and must be reasonable and taken only 759 upon lawful and relevant grounds of public interest
In that light it was urged that if the eviction of the appellant was not necessary in the public interest and if it had been taken pursuant to any norm or policy which does not permit eviction of the appellant then the action is arbitrary and discriminatory and not in accordance with any policy which the respondent was enjoined to follow
In the aforesaid background it was contended that the eviction of the appellant was not necessary in public inter est
It appears that the eviction of the appellant was only in pursuance of a policy of the Port Trust to let out a reconstituted plot to the person who occupied the major portion and who could use it for development
It was urged that the decision of the Port Trust to allot the entire plot to Ms Dhanji Mavji to the exclusion of the appellant although the appellant was thereof for the past 40 years was an arbitrary and discriminatory departure from the established policy of the Port Trust which was to offer the plot to the existing tenants where two or more tenants were in occupation of one plot as joint tenants
It was contend ed that the impugned termination was ultra vires and arbi trary
It was contended that the exclusive allotment of the entire plot 5B to Ms Dhanji Mavji and the consequent termi nation of the appellant s tenancy was not necessary to enable proper development of the plot as required by the Town Planning Scheme
There was no policy requiring the entire finalreconstituted plot to be allotted exclusively to the person occupying the major portion thereof or requir ing the other existing occupants to be evicted
Nor it was submitted was the allotment of the entire plot pursuant to any such alleged policy
On the other hand the appellant contended that the respondent s established policy was to offerallot a final reconstituted plot for development to the existing occupants thereof as joint tenants
It was contended that this rational policy which according to the appellant would have fulfilled the public interest of development in accordance with the regulations of the Town Planning Scheme and at the same time would not have required or necessitated the eviction of the existing occupants
Contrary to the established rational policy of accommo dating tenants by offeringallotting a new plot jointly to the existing occupantstenants the respondent arbitrarily it was contended and discriminatingly did not offer the new plot 5B to Ms Dhanji Mavji and the appellant both of whom were existing tenantsoccupants of the plot as joint ten ants but instead wrongfully decided to give the entire plot to Ms Dhanji Mavji to the exclusion of the appellant
Our attention was drawn to Section 4 of the Bombay Rents Hotel  Lodging House Rates Control Act 1947 which enjoins that 760 the Act would not apply to the premises belonging to the Govt
or to the local authorities
By the provisions of the said Section 4 the Port Authorities were exempted from the operation of the Rent Act
This privilege was given to the Port Trust Authorities it was submitted on the assumption that it would act in public interest and would not behave like ordinary landlords
The special privileges powers and benefits were statutorily conferred on the Bombay Port Trust by Section 4 of the aforesaid Act
It had those rights due to its statutory or public character as a local authority
Our attention was also drawn to the decision in Rampra tap Jaidayal vs Dominion of India at 934 where the Chief Justice Chagla observed as follows It is not too much to assume as the Legisla ture did in this case assume that the very Government whose object was to protect the tenants and prevent rent being increased and prevent people being ejected would not itself when it was the landlord do those very things which it sought to prohibit its people from doing and therefore the underlying assumption of this exemption is that Government would not increase rents and would not eject tenants unless it was absolutely necessary in public interest and unless a particular building was required for a public purpose This Court in Baburao Shantaram More vs The Bombay Housing Board  Anr 1954 V SCR 572 had to consider Section 4 of the Bombay Rents Hotel  Lodging House Rates Control Act 1947 and so far as material for our present purposes explained the basis of exemption under Section 4 as that the Govt
or local authority or the Board would not be actuated by any profit making motive so as to unduly enhance the rents or eject the tenants from their respective proper ties as private landlords are or are likely to be
In other words this Court recognised that the basis of differentia tion in favour of the public authorities like the respond ent was on the ground that they would not act for their own purpose as private landlords do but must act for public purpose Our attention was also drawn by Mr Chinai learned counsel for the appellant to the observations on Adminis trative Law by Wade 5th Edn
at page 355
It was stated therein as follows Statutory power conferred for public pur poses is conferred as it were upon trust not absolutely that is to say it can validly be used only in the right and proper way which Parliament when conferring it is presumed to have intended
 761 It therefore follows that the public authorities which enjoy this benefit without being hidebound by the require ments of the Rent Act must act for public benefit
Hence to that extent this is liable to be gone into and can be the subject matter of adjudication
Learned Addl
Solicitor General Mr Ramaswami contended that the onus was entirely on the appellant and the burden lay on the defendant to establish that the Bombay Port Trust had terminated the tenancy or taken the proceedings in eviction not in public interest but for a collateral purpose or mala fide or that it had acted in a manner contrary to the provisions of article 14 of the Constitution
He is right so contending
It was further urged by Mr Ramaswamy that public law duties are owed to society at large and the nature of the body performing the functions is not determinative of public law or private law character of the action taken
He con tended that since the provisions of the Bombay Rent Act did not apply to the premises of the Bombay Port Trust in the notice of termination no reason was required to be given either in the notice itself terminating the tenancy or in the plaint for evicting the appellant
He further contended that originally the Bombay Port Trust was constituted as a body corporate under the provisions of the Bombay Port Trust Act 1889 and is now constituted under the provisions of the Major Port Trusts Acts 1988
In both these Statutes the object for constituting the Bombay Port Trust was not to provide accommodation to persons and therefore the object was totally different from the object for which the Bombay Rent Act and similar enactments have been enacted
It was therefore urged that since there was no obligation or duty cast upon the Bombay Port Trust to provide accommodation there could be no question of acting in Government charac ter
It was urged that the respondent did not enjoy any special privilegespowers of benefits vis a vis such activi ties by virtue of its being a local Body or Government character
In the premises it was contended that such a body stands on the same footing as any other citizen and will in respect of such activity not be subjected to public law duty
We are unable to accept the submissions
Being a public body even in respect of its dealing with its tenant it must act in public interest and an infraction of that duty is amenable to examination either in civil suit or in writ jurisdiction
Our attention was drawn to the observations of this Court in Radhakrishna Agarwal  Ors
vs State of Bihar  Ors
  Reliance was also placed on the observations of this Court in Life 762 Insurance Corpn
of India vs Escorts Ltd  Ors   in support of the contention that the public corporations  dealing with tenants is a contractual dealing and it is not a matter for public law domain and is not subject to judicial review
However it is not the correct position
The Escorts  decision reiterated that every action of the State or an instrumentality of the State must be informed by reason
Indubitably the respondent is an organ of the State under article 12 of the Constitution
In appropri ate cases as was observed in the last mentioned decision actions uninformed by reason may be questioned as arbitrary in proceedings under article 226 or article 32 of the Constitu tion
But it has to be remembered that article 14 cannot be construed as a charter for judicial review of State action to call upon the State to account for its actions in its manifold activities by stating reasons for such actions
The contractual privileges are made immune from the protection of the Rent Act for the respondent because of the public position occupied by the respondent authority
Hence its actions are amenable to judicial review only to the extent that the State must act validly for a discernible reason not whimsically for any ulterior purpose
Where any special right or privilege is granted to any public or statutory body on the presumption that it must act in cer tain manner such bodies must make good such presumption while acting by virtue of such privileges
Judicial review to oversee if such bodies are so acting is permissible
The field of letting and eviction of tenants is normally governed by the Rent Act
The Port Trust is statutorily exempted from the operation of Rent Act on the basis of its publicGovernment character
The legislative assumption or expectation as noted in the observations of Chagla CJ in Rampratap Jaidayal s case supra cannot make such conduct a matter of contract pure and simple
These corporations must act in accordance with certain constitutional conscience and whether they have so acted must be discernible from the conduct of such corporations
In this connection reference may be made on the observations of this Court in SP Rekhi vs Union of India   reiterated in MC Mehta  Anr
vs Union of India  Ors
 1987 1 SCC 395 wherein at p 148 this Court observed It is dangerous to exonerate corporations from the need to have constitutional con science and so that interpretation language permitting which makes governmental agencies whatever their mien amenable to constitutional limitations must be adopted by the court as against the alternative of permitting them to flourish as an imperium in imperio
 763 Therefore Mr Chinai was right in contending that every action activity of the Bombay Port Trust which constituted State within article 12 of the Constitution in respect of any right conferred or privilege granted by any Statute is subject to article 14 and must be reasonable and taken only upon lawful and relevant grounds of public interest
Reli ance may be placed on the observations of this Court in EP Royappa vs State of Tamil Nadu   Maneka Gandhi vs Union of
India 1978 2 SCR 621 RD Shetty vs The International Airport Authority of India  Ors   Kasturi Lal Lakshmi Reddy vs State of J  K  Anr  and Ajay Hasia vs Khalid Mujib Sehravardi  Ors etc
  Where there is arbitrariness in State action article 14 springs in and judi cial review strikes such an action down
Every action of the Executive Authority must be subject to rule of law and must be informed by reason
So whatever be the activity of the public authority it should meet the test of article 14
The observations in paras 101  102 of the Escorts  case supra read properly do not detract from the aforesaid principles
The High Court had relied on the observations of this Court in Kasturi Lal Lakshrni Reddy vs State of Jammu  Kashmir  Anr supra that the State was not totally freed of the duty to act fairly and rationally merely because it could do so under a contract
The High Court stated that though it might be accepted that a public body like the respondent should not act unreasonably or unfairly but it did not follow that every time they decided to take action against the contractual tenants they had to decide the said action in terms of fairness equity and good faith
In support of this proposition reliance was placed on the observations of this Court in LIC vs Escorts supra
In this connection Mr Chinai appearing for the appellant reiterated before us as he did before the High Court that the basis of the legitimate assumption or expectation of which the statutory exemption had been granted by the Legis lature to the Bombay Port Trust provided a guideline or touch stone by which the conduct of the public authority which had been granted exemption should be judged
And according to him the necessity of eviction in the instant case must have been only in public interest
Reliance was placed on several decisions referred to hereinbefore
We are inclined to accept the submission that every activity of a public authority especially in the background of the assumption on which such authority enjoys immunity from the rigours of the Rent Act must be informed by reason and guided by the public interest
All exercise of discre tion or power by public authorities as the respondent in respect of dealing with tenants in respect of which they have been treated separately and distinctly from other landlords on the assump 764 tion that they would not act as private landlords must be judged by that standard
If a governmental policy or action even in contractual matters fails to satisfy the test of reasonableness it would be unconstitutional
See the obser vations of this Court in Kasturi Lal Lakshrni Reddy supra and RD Shettv vs The International Airport Authoritv of India  Ors  at 1034
Learned Additional Solicitor General reiterated on behalf of the respondent that no question of mala fide had been alleged or proved in these proceedings
Factually he is right
But it has to be borne in mind that governmental policy would be invalid as lacking in public interest unreasonable or contrary to the professed standards and this is different from the fact that it was not done bona fide
It is true as learned Addl
Solicitor General contended that there is always a presumption that a governmental action is reasonable and in public interest
It is for the party challenging its validity to show that the action is unrea sonable arbitrary or contrary to the professed norms or not informed by public interest and the burden is a heavy one
In this background the contention of the appellant has been that its eviction was not necessary in public interest and further that the eviction was only in pursuance of an alleged policy on the part of the Port Trust to let out the reconstituted plot to the person who occupied the major portion which according to the appellant was not in consonance with the obligation of the Trust to take action only in public interest
It was contended that eviction for development with least dislocation should have been the aim and that would have served the public purpose better
On behalf of the appellant it was contended that before the Trial Court it was established that both the appellant and Ms Dhanji Mavji had been tenants of the Port Trust on the original plot No 4 since 1932 and in fact the appellant was older tenant
Our attention was drawn to para 16 of the appellant s written statement Vol
2 Paper Book page 35
In this context it was submitted that the decision of the Port Trust was not based on public purposeinterest and as such was ultra vires of the powers of the Port Trust
It was contended that such a plea was justiciable in all civil suits
On behalf of the Port Trust authorities however the submission was that there was no obligation under the Bombay Port Trust Act to provide accommodation
So there cannot be any governmental character
This we have already dealt with
Learned Add
Solicitor General submitted that in evi dence it has been mentioned by Katara PW 1 at page 43 Vol
II that the plot had been allotted to Dhanji Mavji since it was the policy of the Bombay Port Trust to allot a re constituted plot to a person occupying 765 a major portion of such plot
There was no challenge to this evidence in cross examination
On the other hand he con tended that there was no evidence on the alleged policy of the Port Trust of giving plots on joint tenancy to all occupants
According to him in the letters addressed by the Port Trust at pp 82 123 128 of Vol 1 and in the letters by and on behalf of the appellant andor their alleged associate concerns at pp
14 1 to 147 they have specifically admitted that there was a policy of the Port Trust to allot plots to the occupants of the major portions thereof and in fact a grievance has been made by them that in accordance with the said policy of the Bombay Port Trust Plot No 5A was not being allotted to the associates of the appellant
In that view of the matter even under the scope of judicial review it was contended whether it should have been given on joint tenancies or not is not a matter which could be gone into by the Court
Reliance was placed on the observa tions of Lord Justice Diplock in Council of Civil Service Unions vs Minister for the Civil Service at 950 where the learned Lord Justice classified 8 grounds subject to control of judicial review namely illegali ty irrationality and procedural impropriety
Learned Addl
Solicitor General is right in our opinion in that we cannot really substitute a decision reached by a fair proce dure keeping the policy of the respondent in mind by a different decision only on the ground that the decision which appeals to the court is a better one
Reliance was placed on the observations of Lord Chancellor Lord Hailsham in Chief Constable of the North Wales Police vs Evans  In our opinion it is necessary to remem ber that judicial review in the words of Lord Brightman in that case is not concerned with the decision but with the decision making process
As observed by Prof Dias in Juri sprudence  5th Edn
at p 91 unless the restriction on the power of the court is observed the court would under the guise of preventing the abuse of power be itself guilty of usurping power which does not belong to it
It is therefore necessary to bear in mind the ways and means by which the court can control or supervise the judicial action of any authority which is subject to judicial control
In this connection it is necessary to refer to the observations of Lord Justice Templeman in re Preston vs IRC and the observations of Lord Justice May in Regina vs Chief Constable of the Merseyside Police It is not within the purview of a court to substitute a decision taken by a constituted authority simply because the decision sought to be substituted is a better one
Learned Addl
Solicitor General in our opinion is therefore right in contending that the appellant should not be allowed to contend that the decision of the Bombay Port Trust to allot the plot to the major holder is not one of the feasible means of achieving the objectives of development
It was not open to the appellant to contend 766 that the Bombay Port Trust could have framed a better policy in a way in which both the goals development and non evic tion of existing tenants could have been achieved
Furthermore we have to bear in mind that joint allot ment for the purpose of development pre supposes coopera tion
In this connection it is necessary to remember that Mr Singhvi appearing for the intervener in CMP No 1944788 indicated that the joint development was not possi ble because they were not willing to take it jointly
He also pointed out that the appellant was aware that the decision to allot this plot in his client s favour had been taken as early as 1973 and that it was within the knowledge of the present appellant that they had also put up construc tions thereon at substantial cost
He urged that though it is true that the lease in favour of the petitioner was terminated and the suit filed only in 1977 the fact is that the appellant took no step earlier to have the allotment in favour of his clients cancelled
This he has urged is also a ground for non interference at this stage
We are inclined to agree
Our attention was drawn to the fact that Dhanji Mavji had held 80 of the re constituted plot
The plot 5B had been developed inasmuch as a building of ground plus 5 upper storeys had been erected as was the maximum possible not withstanding the fact that the appellant had not yet surren dered their portion
As against this on plot 5A where the Bombay Port Trust offered a joint tenancy to the three occupants since there was no occupant holding a major portion thereof there had been no development whatsoever and in fact there has been litigation going on to remove all the 3 occupants
In that view of the matter the Bombay Port Trust perhaps was justified in coming to the conclusion that the only possible way to develop the properties of the Bombay Port Trust in compliance with the Town Planning Scheme by allotting plots to holders of major portions thereon
Such a decision cannot be faulted
The Town Planning Scheme came into force in 1957
Plot 5 was divided into Plot 5A and 5B in 1963
The Town Planning Act had been enacted to meet the requirements for planning development and use of land
Having regard to Sections 27 213 217 218 221 222 227 13 14 22 59 65 88 89  159 it appears that one of the purposes was the extinguishment of the tenancies of the Port Trust and as such tenants of plot 5A and 5B were liable to eviction
The Port Trust continued them as monthly tenants for many years before formulating a policy to develop the plots by offering them to major holders
In pursuance to that Scheme regulations have been flamed under Section 169 of the Town Planning Act
Our attention was placed on some of these regulations
It is contended that it was viewed that 767 plot of land of less than 500 sq
yards out of the Town Planning Scheme cannot be allotted
In that view of the matter it is a possible view and we need not go beyond this
In that context even though we reiterate that the Port Trust must act reasonably and in adherence to a policy which serves the public purpose on the assumption of which exemp tion was granted to it from the Rent Act while dealing with the tenants or occupants it cannot be said that the Port Trust has acted improperly
In that light the decision of the High Court must be affirmed though on a different empha sis
In the view that we have taken it is not necessary for us to go into the question whether under article 227 of the Constitution it was open to the High Court to go into the question of constitutional validity for which reliance was placed on the observations of this Court in Venkatlal G Pittie  Anr
vs Bright Bros P Ltd  at 569 and Khalil Ahmed Bashir Ahmed vs Tufelhussein Samasbhai Sarangpurwala  Reliance was also placed by Mr Chinai on the observations of the House of Lords in England in Wandsworth London Borough Council vs Winder  at 505 507
In that case the local authority was under the agreement itself required to fix rent under the statutory provision
It committed a breach thereof
Hence it was held there that that was a breach of a con tractual obligation enforceable under the Private Law and therefore justiciable
As we look upon the facts of this case there was an implied obligation in respect of dealings with the tenantsoccupants of the Port Trust authority to act in public interestpurpose That requirement is fulfilled if it is demonstrated that the Port Trust Authorities have acted in pursuance of a policy which is referable to public pur pose
Once that norm is established whether that policy is the best policy or whether another policy was possible is not relevant for consideration
It is therefore not neces sary for our present purposes to dwell on the question whether the obligation of the Port Trust Authorities to act in pursuance of a public purpose was of public law purpose or a private law purpose
Under the Constitutional scheme of this country the Port Trust Authorities were required by relevant law to act in pursuance of public purpose
We are satisfied that they have proceeded to so act
We must record that learned Addl
Solicitor General made a statement that irrespective of the result of this appeal the Port Trust Authorities of Bombay will consider reasonably granting of an alternative site to the appellant if such an application is made to them
In the view that we have taken this appeal must there fore fail and is accordingly dismissed
The CMP No 1944788 is disposed of 768 by directing that the applicants are permitted to intervene and their submissions have been considered
In the facts and the circumstances of the case the parties will pay and bear their own costs
All interim orders are vacated
RANGANATHAN J I respectfully agree with the conclusion of my learned brother Sabyasachi Mukharji J
However I would like to add a word of reservation
The principal argument which Shri Chinai addressed to us at great length on behalf of appellant was that the relationship between the appellant and the Port Trust was not purely contractual and in the realm of private law
He urged that the Port Trust having been granted an exemption from the provisions of the rent control acts on certain public grounds is not at liberty to take action to evict the petitioner without being accountable therefore and that its action is in the realm of public law and hence liable to judicial review
He submitted that the decision of this Court in the Escorts case  is not inconsistent with this contention
The learned Additional Solicitor General contested the above proposition on principle and refuted the sugges tion that the Port Trust was under any obligation to show that its action was bona fide and not arbitrary or unrea sonable but could be justified on grounds of public inter est
He submitted that on the facts of the present case the state of the pleadings at the various stages and its own findings on the facts the High Court was not called upon to go into the larger issue at all and that its observations in this regard were purely casual
He submitted however that without prejudice to these contentions he would be willing to satisfy us on the facts of the present case that the action of the Port Trust was bona fide and based on policy and reason
He addressed us on this aspect and I agree with respect with the conclusion of my learned brother Sabyasachi Mukharji J that on the facts of the present case the action of the Port Trust was not improper and that there are no grounds to interfere with the same
In view of the above conclusion on the merits and in view of my opinion that we have not heard full arguments on both sides on the general propositions contended for by Shri Chinai as to the parameters and scope of judicial review in such matters which are issues of far reaching importance I would like to refrain from expressing any final and conclud ed opinion on these aspects though prima facie I am also inclined to think as held by my learned brother that there is considerable force in them
RSS Appeal dismissed


Summary:
Accused Nos 1 to 6 constituting an unlawful assembly the common intention of which Was to kill Baharan Mian came to his house armed with deadly weapons
Baharan Mian appre hending trouble ran inside Co arm himself but his wife prevented him from coming out again
At that time Baharan Mian s two infant daughters Sahana Khatoon aged about seven years and Chand Tara aged about seven months were playing in the dalan  of his house
Failing in their object to kill Baharan Mlan accused No 1 gave farsa blows on the head abdomen and left thumb of Sahana Khatoon causing serious injuries and accused No 2 gave one farsa blow on the head of infant Chand Tara
As a result of these injuries Sahana Khatoon died the same day while Chand Tara died after 28 days
Accused Nos1 and 2 were charged under sections 302 452 and 148 IPC whereas accused Nos
3 to 6 were sought to be held vicariously liable under section 302149 IPC Accused Nos 3 and 4 were further charged under sections 447 and 148 IPC and accused Nos 5  6 were charged under sections 447 and 147 IPC The Trial Court convicted accused Nos 1 and 2 on all the three counts and awarded the sentence of death to both of them for the commission of the offence punishable under section 302 IPC Accused Nos 3 and 4 were convicted under sections 302149 447 and 148 IPC and for the offence under section 302149 each of them was directed to suffer imprison 499 ment for life
Accused Nos 5 and 6 were convicted under sections 302149 447 and 147 IPC
For the offence under sections 302149 IPC they were sentenced to undergo imprisonment for life
The High Court dismissed the appeal of accused Nos 1 and 2 and while accepting the reference confirmed the sentence of death awarded to them for the murder of the two infant girls
The conviction of the remaining four accused under section 302149 was however altered to sections 326149 and the sentence of imprisonment for life given to each of them was substituted by a sentence of rigorous imprisonment for seven years
Their convictions and sen tences on the other counts were however maintained Before this Court it was contended on behalf of the appellants that 1 the evidence adduced by the prosecution was not reliable 2 Even on the facts found proved by the courts below accused Nos
1 to 6 could not be held guilty of murder with the aid of section 149 IPC as the kill ings of the two girls was outside the common object of the unlawful assembly 3 the facts of the case did not warrant a death penalty in the case of accused Nos 1 and 2 more so because the procedural requirement of section 2352 of the Cr
PC was not followed in letter and spirit and 4 section 302 IPC and section 3543 Cr
PC insofar as they permit the imposition of the death penalty were viola tive of Articles 14 19 and 21 of the Constitution of India
While partly allowing the appeals by converting the sentence of death in the case of accused nos
1 and 2 to imprisonment for life under section 302 IPC and setting aside the conviction of accused nos
3 to 6 under section 326149 IPC the Court HELD 1 There is no substance in the contention that the prosecution evidence is unreliable and should not be acted upon for confirming the conviction of the accused persons
508B C 2 If the prosecution did not examine some persons who were admittedly present at the scene of occurrence on learning that they were won over it cannot be said that the prosecution was unfair to the accused persons
The non examination of these persons cannot affect the probative value of the evidence of other prosecution witnesses
508F 3 Section 149
IPC creates a specific offence
Since this section imposes a constructive penal liability it must be strictly construed
509G 500 4 It is not the intention of the legislature in enact ing section 149 to render every member of an unlawful assem bly liable to punishment for every offence committed by one or more of its members
In order to invoke section 149 it must be shown that the incriminating act was done to accom plish the common object of the unlawful assembly
Even if an act incidental to the common object is committed to accom plish the common object of the unlawful assembly it must be within the knowledge of other members as one likely to be committed in prosecution of the common object
If the mem bers of the assembly knew or were aware of the likelihood of a particular offence being committed in
prosecution of the common object they would be liable for the same under sec tion 149
IPC 510F H 5 What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was one which the members knew to be likely to be committed
There must be a nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object every member of the assembly will become liable for the same
509H 510A B 6 In the instant case the common object of the unlaw ful assembly as alleged in the charge was to kill Baharan Mian
When accused Nos 1 and 2 realised that Baharan Mian was beyond their reach
frustrated at their failure to accomplish their mission wielded their weapons on the innocent girls which was no part of the common object of the unlawful assembly
For accomplishing their common object it was not necessary to kill the two girls who were not a hinderance to accused Nos 1 and 2 accomplishing their common object
Accused Nos
3 to 6 cannot therefore be convicted for the injuries caused to the two minor girls by accused Nos 1 and 2 with the aid of section 149
511A B 7 Section 302 IPC casts a heavy duty on the Court to choose between death and imprisonment for life
When the Court is called upon to choose between the convict s cry I want to live  and the prosecutor s demand he deserves to die  it goes without saying that the Court must show a high degree of concern and sensitiveness in the choice of sen tence
511D E 8 In our justice delivery system several difficult decisions are left to the presiding officer sometimes without providing the scales or the weights for the same
In cases of murder however since the choice 501 is between capital punishment and life imprisonment the legislature has provided a guideline in the form of sub section 3 of section 354 of the Code of Criminal Proce dure 1973
511E F 9 When the law casts a duty on the Judge to state reasons it follows that he is under a legal obligation to explain his choice of the sentence
It may seem trite to say so but the existence of the special reason clause  in the above provision implies that the Court can in fit cases impose the extreme penalty of death which negatives the contention that there never can be a valid reason to visit an offender with the death penalty no matter how cruel gruesome or shocking the crime may be
512A C 10 Where a sentence of severity is imposed it is imperative that the Judge should indicate the basis upon which he considers a sentence of that magnitude justified
Unless there are special reasons special to the facts of the particular case which can be cataloged as justifying a severe punishment the Judge would not award the death sentence
If a Judge finds that he is unable to explain with reasonable accuracy the basis for selecting the higher of the two sentences his choice should fail on the lower sentence
512D E 11 The choice of the sentence has to be made after following the procedure set out in sub section 2 of sec tion 235 of the Code
Since the provision is intended to give the accused an opportunity to place before the Court all the relevant material having a bearing on the question of sentence there can be no doubt that the provision is salutary and must be strictly followed
513D H 514A 12 The requirement of hearing the accused is intended to satisfy the rule of natural justice
In the case of life or death the presiding officer must show a high degree of concern for the statutory right of the accused and should not treat it as a mere formality to be crossed before making the choice of the sentence
If the choice is made without giving the accused an effective and real opportunity to place his antecedents social and economic background mitigating and extenuating circumstances etc
before the Court the Court s decision on the sentence would be vulner able
514C 13 A sentencing decision taken without following the requirements of sub section 2 of section 235 of the Code in letter and spirit may have to be replaced by an appropri ate order
In the instant case the Trial Court actually treated it as a mere formality as is evident from 502 the fact that it recorded the finding of guilt on 31st March 1987 and on the same day before the accused could absorb and overcome the shock of conviction they were asked if they had anything to say on the question of sentence
Immediately thereafter the decision imposing the death penalty on the two accused was pronounced
514B E 14 As a general rule the Trial Courts should after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender
514F G 15 In the instant case the Trial Court did not attach sufficient importance to the mandatory requirement of sub section 2 of section 235 of the Code
The High Court also had before it only the scanty material placed before the Sessions Judge when it confirmed the death penalty
Absence of particulars of ancedents of accused their socio economic conditions the impact of their crime on the community etc makes the choice of punishment difficult
514G H 16 It is necessary that the maximum sentence pre scribed by law should be reserved for the rarest of rare  cases which are of an exceptional nature
Sentences of severity are imposed t9 reflect the seriousness of the crime to promote respect for the law to provide just punishment for the offence to afford adequate deterrent to criminal conduct and to protect the community from further similar conduct
515G 17 In the instant case unfortunately the material for choice of sentence is scanty
The motive for the crime is obscure the one stated
namely the quarrel between two infants of both sides does not seem to be correct
The killings were not for gain
The change shows that the target was Baharan Mian the father and not the two infants
The killing of the two infants was not in the contemplation of any of the accused
Both the girls were the victims of the offenders  ire resulting from frustration at the escape of their target
There is nothing so uncommon about the crime as to make the case an exceptional one
The mere fact that infants are killed without more is not sufficient to bring the case within the category of the rarest of rare  cases
516C E Bachan Singh vs State of Punjab  and Machhi Singh vs State of Punjab  referred to