TMI Blog2001 (12) TMI 808X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be irreparable and irretrievable damage can an injunction be issued after hearing all the parties. Even then the Petitioner should be put on appropriate terms such as providing an indemnity or an adequate undertaking to make good the loss or damage in the event the PIL filed is dismissed. Thus the disinvestment by the Government in BALCO was not invalid. - TRANSFERRED CASE (CIVIL) NO. 8 OF 2001 - - - Dated:- 10-12-2001 - B.N. KIRPAL, SHIVARAJ V. PATIL AND P. VENKATARAMA REDDI, JJ. Soli J. Sorabjee, Harish N. Salve, Dipankar P. Gupta, G.L. Sanghi, C.A. Sundaram, P. Chidambaram, Anoop G. Chaudhary, Ranjit Kumar, Dr. A.M. Singhvi, Jaideep Gupta, Sanjay Sen, Rana S. Biswas, Ms. Sheetal Sharma, Sitesh Mukherjee, Ms. Indra Sawhney, S.S. Ray, Ms. Rakhi Ray, Ms. P.S. Shroff, Ms. Ritu Bhalla, Sidharth Datta, Manish Singhvi, Ankur Talwar, Maninder Singh, Ms. Pratibha M. Singh, Ms. Kavita Wadia, Siddharth Goswami, Siddharth Chowdhury, B.V. Balram Das, Rajiv K. Garg, Annam D.N. Rao, Ravindra Shrivastava Chhattisgarh, Prakash Shrivastava, Piyush Dharmadhikari, Ms. Suparna Shrivastava, Harsh Verma, R.M. Sharma, Sanjay Parikh, R.R. Chandrachud, Arun Beriwal, Sudhir Walia, Mahind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d a Public Sector Disinvestment Commission initially for a period of three years. The Resolution stated that this Commission was established in pursuance of the Common Minimum Programme of the United Front Government at the Centre. The Commission was an independent, non-statutory advisory body and was headed by Shri G.V. Ramakrishna who was to be its Full-time Chairman. The Commission had four part-time Members. Paras 3, 4 and 5 of the said Resolution are as follows: "3. The broad terms of reference of the Commission are as follows: I.To draw a comprehensive overall long term disinvestment programme within 5-10 years for the PSUs referred to it by the Core Group. II.To determine the extent of disinvestment (total/partial indicating percentage) in each of the PSU. III.To prioritise the PSUs referred to it by the Core Group in terms of the overall disinvestment programme. IV.To recommend the preferred mode(s) of disinvestment (domestic capital markets/international capital markets/auction/private sale to identified investors/any other) for each of the identified PSUs. Also to suggest an appropriate mix of the various alternatives taking into account the market conditions. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t any other activities relating to disinvestment as may be assigned to it by the Government. ( iii )In making its recommendations, the Commission will also take into consideration the interests of workers, employees and other stake-holders, in the public sector unit(s). ( iv )The final decision on the recommendations of the Disinvestment Commission will vest with the Government." 6. According to the Union of India, it laid down the broad procedures to be followed for processing the recommendations of the Disinvestment Commission. It was, inter alia, decided that: i. the Ministry of Finance (now Department of Disinvestment) would process the recommendations of the Disinvestment Commission, by inviting comments from the concerned administrative machinery; ii. submit the recommendation to the Core Group of Secretaries for Disinvestment for consideration; iii. the recommendations of the Core Group of Secretaries would then be taken to the Cabinet for decision; iv. it was also decided that the Core Group of Secretaries would be headed by the Cabinet Secretary and its permanent members would be Finance Secretary, Revenue Secretary, Expenditure Secretary, Secretary D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding below the level of investment being offered by the strategic buyer and its divesting some portion of equity to other entities. This letter noted that in these circumstances, it may be difficult to get in a multilateral financial institution to act fast in taking up shares of BALCO. The Chairman of the Commission then recommended that "in keeping with the spirit of the recommendations of the Fifth Report, you may now kindly consider offering 51 per cent or more to the strategic buyer along with transfer of management. These sale will enable a smooth transaction with the participation of more bidders and better price for the shares. This will also be in keeping with the current policy as announced by the FM in his recent budget speech". 9. The Cabinet Committee on Economic Affairs had, in the meantime, in September 1997 granted approval for appointment of a technical and financial advisor, selected through a competitive process, for managing the strategic sale and restructuring of BALCO. Global advertisement was then issued inviting from interested parties Expression of Interest for selection as a Global Advisor. The advertisement was published in four financial papers in In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration Plc. v. VAW Aluminium AG, Germany vi. ALCOA, USA vii. Sibirsky, Russia viii. MALCO" 15. Jardine Fleming, Global Advisor made an analysis of the various bids on the basis of the financial and technical capability, familiarity with India and overall credibility. Thereupon two companies, namely, Indian Minerals Corporation Plc. And Tranex Holding Inc. were rejected. The Inter-Ministerial Group (IMG) set up by the Union of India, accepted the expression of interest of six out of eight parties and it also decided that the bids of Sterlite and MALCO be treated as one. Thus there remained five prospective bidders but two, namely, VAW Aluminium AG, Germany and Sibirsky, Russia dropped out and the remaining three, namely, ALCOA, USA, Hindalco and Sterlite conducted due diligence (inspection) on BALCO between September to December, 2000. 16. The IMG considered the drafts of the Shareholders Agreement and the Share Purchase Agreement and had discussions with three prospective bidders and ultimately the said drafts were finalised on 11-1-2001. 17. For the purpose of carrying out the asset valuation of BALCO, the Global Advisor short listed four parties from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the company as a whole, 51 per cent of which amounts to Rs. 514.4 crores which was fixed as the reserve price. According to the respondents, the Evaluation Committee felt that Asset Valuation Report appeared to have overvalued the fixed assets of the company at Rs. 1072.2 crores. The Committee further observed that the fixed asset valuation method was only a good indicator of the value that could be realised if the business was to be liquidated, rather than for valuing the business as a going concern. Furthermore, the asset valuation method did not take into account the liabilities and contingent liability that go with the business. 19. When the financial bids were opened, it was found that the bid of Sterlite Industries was the highest at Rs. 551.5 crores, the bid of Hindalco was Rs. 275 crores while ALCOA had opted out. The report of the Evaluation Committee for acceptance of the bid which was higher than the reserve price was considered by the IMG which recommended the acceptance of the bid of Sterlite Industries to the core group of Secretaries. This core group in turn made its recommendation to the Cabinet Committee on Disinvestment which on 21-2-2001 approved/ accepted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the end." 21. Clause 7.2 which contains the Representations, Warranties and Covenants of Sterlite Industries is as follows : "The SP represents and warrants to and covenants with each of the Government and the Company that : ( a )it has been duly incorporated or created and is validly subsisting and in good standing under the laws of the jurisdiction indicated in the preamble to this Agreement; ( b )it has the corporate power and authority to enter into and perform its obligations under this Agreement; ( c )this Agreement has been duly authorised, executed and delivered by it and constitutes a valid and binding obligation enforceable against it in accordance with its terms; ( d )it is not a party to, bound or affected by or subject to any indenture, mortgage, lease agreement, instrument, charter or by law provision, statute, regulation, judgment, decree or law which would be violated, contravened, breached by or under which default would occur or under which any payment or repayment would be accelerated as a result of the execution and delivery of this Agreement or the consummation of any of the transactions provided for in this Agreement; ( e )notwithstanding anyt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansferred to this Court being Transfer Case No. 8 of 2001 which pertains to the writ petition filed by BALCO Employees Union; Transfer Case No. 9 of 2001 pertains to the writ petition filed by Dr. B.L. Wadhera in the Delhi High Court and Transfer Case No. 10 of 2001 is the writ petition filed by Mr. Samund Singh Kanwar in the High Court of Chhattisgarh. 23. On behalf of the BALCO Employees Union, Shri Dipankar P. Gupta, learned senior counsel submitted that the workmen have been adversely affected by the decision of the Government of India to disinvest 51% of the shares in BALCO in favour of a private party. He contended that before disinvestment, the entire paid-up capital of BALCO was owned and controlled by the Government of India and its administrative control co-vested in the Ministry of Mines, BALCO was, therefore, a State within the meaning of Article 12 of the Constitution. Reliance for this was placed on Ajay Hasia v. Khalid Mujib Sehravardi [1981] 1 SCC 722; Central Inland Water Transport Corpn. Ltd. v. Brojo Nath Ganguly [1986] 3 SCC 156. He also contended that by reason of disinvestment the workmen have lost their rights and protection under Articles 14 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... senior counsel, appearing for some of the Unions who were intervenors in the writ petition filed by BALCO Employees Union. He submitted that the workers should have been heard at different stages during the process of disinvestment, the manner in which views may be invited and evaluated by the Government; the method of evaluation; the factors to be taken into consideration and the choice of the strategic partner; the terms and conditions under which the strategic partner will take over the employment of the workers and the terms and conditions of the Share Holders Agreement are the stages in which the workers should have been heard and consulted. It was submitted that the decision of the Delhi High Court of 3rd August, 1999 does not come in the way of these contentions being raised inasmuch as the petition at that time was regarded as premature and the order which was passed actually preserves the workers rights to raise the contention in future. 25. Reiterating these contentions Shri Ravindra Shrivastava, learned Advocate General, State of Chhattisgarh submitted that the State does not challenge the policy of disinvestment per se on principle as a measure of socio-economi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , charge any price. The rate of return on central enterprises came to minus 4% while the cost at which the Government borrows money is at the rate of 10 to 11%. In the States out of 946 State level enterprises, about 241 were not working at all; about 551 were making losses and 100 were reported not to be submitting their accounts at all. Secondly, neither the Centre nor the States have resources to sustain enterprises that are not able to stand on their own in the new environment of intense competition. Thirdly, despite repeated efforts it was not possible to change the work culture of governmental enterprises. As a result, even the strongest among them have been sinking into increasing difficulties as the environment is more and more competitive and technological change has become faster. 28. In support, the Solicitor General submitted that the challenge to the decision to disinvest on the ground that it impairs public interest, or that it was without any need to disinvest; or that it was inconsistent with the decision of the Disinvestment Commission was untenable. 29. It was submitted by the learned Attorney General that the wisdom and advisability of economic policies o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws : "If a citizen is no more than a wayfarer or officious intervener without any interest or concern beyond what belongs to any one of the 660 million people of this country, the door of the court will not be ajar for him. But, if he belongs to an organisation which has special interest in the subject-matter, if he has some concern deeper than that of a busybody, he cannot be told off at the gates, although whether the issue raised by him is justiciable may still remain to be considered. I, therefore, take the view that the present petition would clearly have been permissible under article 226." (p. 589) 31. In State of M.P. v. Nandlal Jaiswal [1986] 4 SCC 566 the change of the policy decision taken by the State of Madhya Pradesh to grant licence for construction of distilleries for manufacture and supply of country liquor to existing contractors was challenged. Dealing with the power of the Court in considering the validity of policy decision relating to economic matters, it was observed as follows : "But, while considering the applicability of article 14 in such a case, we must bear in mind that, having regard to the nature of the trade or business, the Court would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. We must not forget that in complex economic matters every decision is necessarily empiric and it is based on experimentation or what one may call trial and error method and, therefore, its validity cannot be tested on any rigid a priori considerations or on the application of any strait-jacket formula. The Court must while adjudging the constitutional validity of an executive decision relating to economic matters grant a certain measure of freedom or play in the joints to the executive. "The problems of Government" as pointed out by the Supreme Court of the United States in Metropolis Theatre Co. v. State of Chicago, are practical ones and may justify, if they do not require, rough accommodations, illogical, it may be, and unscientific. But even such criticism should not be hastily expressed. What is best is not discernible, the wisdom of any choice may be disputed or condemned. Mere errors of government are not subject to our judicial review. It is only its palpably arbitrary exercises which can be declared void. The Government, as was said in Permian Basin Area Rate cases, is entitled to make pragmatic adjustments which may be called for by particulars circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Reserve Bank of India [1992] 2 SCC 343 in which Kasliwal, J. observed at page 375 as follows : "31. The function of the Court is to see that lawful authority is not abused but not to appropriate to itself the task entrusted to that authority. It is well settled that a public body invested with statutory powers must take care not to exceed or abuse its power. It must keep within the limits of the authority committed to it. It must act in good faith and it must act reasonably. Courts are not to interfere with economic policy which is the function of experts. It is not the function of the courts to sit in judgment over matters of economic policy and it must necessarily be left to the expert bodies. In such matters even experts can seriously and doubtlessly differ. Courts cannot be expected to decide them without even the aid of experts." 33. In Premium Granites v. State of T.N. [1994] 2 SCC 691 while considering the Court s powers in interfering with the policy decision, it was observed as under: "54. It is not the domain of the Court to embark upon unchartered ocean of public policy in an exercise to consider as to whether the particular public policy is wise or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity to ensure that the decision regarding privatisation is in public interest ? All these questions have to be answered by a vigilant Parliament. Courts have their limitations - because these issues rest with the policy-makers for the nation. No direction can be given or is expected from the courts unless while implementing such policies, there is violation or infringement of any of the constitutional or statutory provision. The new Telecom policy was placed before Parliament and it shall be deemed that Parliament has approved the same. This Court cannot review and examine as to whether the said policy should have been adopted. Of course, whether there is any legal or constitutional bar in adopting such policy can certainly be examined by the Court." While considering the validity of the industrial policy of the State of Madhya Pradesh relating to the agreements entered into for supply of sal seeds for extracting oil in M.P. Oil Extraction v. State of M.P. [1997] 7 SCC 592, the Court at page 610 held as follows: "41. After giving our careful consideration to the facts and circumstances of the case and to the submissions made by the learned counsel for the parties, it appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate hospital was only possible if such treatment was not available in any government hospital. Dealing with the validity of the new policy, the Court observed at page 129 as follows: "25. Now we revert to the last submission, whether the new State policy is justified in not reimbursing an employee, his full medical expenses incurred on such treatment, if incurred in any hospital in India not being a Government hospital in Punjab. Question is whether the new policy which is restricted by the financial constraints of the State to the rates in AIIMS would be in violation of Article 21 of the Constitution of India. So far as questioning the validity of governmental policy is concerned in our view it is not normally within the domain of any court, to weigh the pros and cons of the policy or to scrutinize it and test the degree of its beneficial or equitable disposition for the purpose of varying, modifying or annulling it, based on howsoever sound and good reasoning, except where it is arbitrary or violative of any constitutional, statutory or any other provision of law. When Government forms its policy, it is based on a number of circumstances on facts, law including constraints ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct or not and what is the type of project to be undertaken and how it has to be executed, are part of policy-making process and the Courts are ill-equipped to adjudicate on a policy decision so undertaken. The Court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people s fundamental rights are not transgressed upon except to the extent permissible under the Constitution..." 39. It is evident from the above that it is neither within the domain of the Court nor the scope of the judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are our Courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. Process of disinvestment is a policy decision involving complex economic factors. The Courts have consistently refrained from interfering with economic decisions as it has been recognised that economic expediencies lack adjudicative disposition and unless the economic decision, based on economic expediencies, is demonstra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of a post pursuant to a policy decision does not attract the provisions of Article 311 of the Constitution as held in State of Haryana v. Shri Des Raj Sangar [1976] 2 SCC 844, on the same parity of reasoning, the policy of disinvestment cannot be faulted if as a result thereof the employees lose their rights or protection under Articles 14 and 16 of the Constitution. In other words, the existence of rights of protection under Articles 14 and 16 of the Constitution cannot possibly have the effect of vetoing the Government s right to disinvest. Nor can the employees claim a right of continuous consultation at different stages of the disinvestment process. If the disinvestment process is gone through without contravening any law, then the normal consequences as a result of disinvestment must follow. 41. The Government could have run the industry departmentally or in any other form. When it chooses to run an industry by forming a company and it becomes its shareholder then under the provisions of the Companies Act as a shareholder, it would have a right to transfer its shares. When persons seek and get employment with such a company registered under the Companies Act, it m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government or other authorities performing any public duty are amenable to correction in proceedings under article 226. By reason of the disinvestment, employees do not lose their right to seek redressal through courts for any wrongs done to them. The employees have no vested right in the employer company continuing to be a government company or "other authority" for the purpose of Article 12 of the Constitution of India. Apart from the fact that the very status claimed by the employees in this case is a fortuitous occurrence with the employees having commenced work under a private employer and while on the verge of losing employment, being rescued by the State taking over the company, the employees cannot claim any right to decide as to who should own the shares of the company. The State which invested of its own volition, can equally well disinvest. So long as the State holds the controlling interest or the whole of the shareholding, employees may claim the status of employees of a government company or other authority under Article 12 of the Constitution. The status so conferred on the employees does not prevent the Government from disinvesting inor does it make the cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner that challenge to the policy of disinvestment in Respondent No. 5 company is not pressed. It is further stated that whenever the final decision is to be taken by the Respondents affecting the interests of the workers, the same be intimated with two weeks advance notice to the Petitioners by the Respondents. As far as the protection of the interests of the workers is concerned, the relief being premature cannot be entertained and the petition to this extent would be liable to be rejected. Mr. Rawal, learned Additional Solicitor General states that if any decision relating to the interests of the employees/workers is taken by the Respondents, two weeks prior notice of the same will be given to the Petitioners. In view of the above, the petition is disposed of with liberty to the Petitioners to approach the Court in the event of any decision adverse to the interest of the employees/workers being taken. Petition disposed of accordingly." 45. According to the company, after the aforesaid order of 3-8-1999 was passed, the entire rationale and process of disinvestment was explained to the workers through BALCO Samachar News letter. A meeting was held in May, 2000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmore, the service conditions are governed by the certified orders of the company and any change in the conditions thereto can only be made in accordance with law. The demands made by the employees of BALCO were considered by the IMG in its meeting held on 25-1-2001 and the issues emanating therefrom were placed by the Department of Disinvestment before the Cabinet Committee on Disinvestment which held its meeting on 1-2-2001. A note containing the comments of the Ministry of Mines which was endorsed by the IMG of the Cabinet Committee on Disinvestment was forwarded by the Minister of Mines, Government of India to Shri Tara Chand Viyogi, President, M.P. Rashtriya Mazdoor Congress. The said note, apart for setting out reasons for disinvestment of BALCO, also refers how the interest of the employees of BALCO has been protected in the process of disinvestment. This note states : "Regarding employees, adequate provisions have been made in Share-holders Agreement (SHA) as follows : "Recital H Subject to Clause 7.2, the Parties envision that all employees of the Company on the date hereof shall continue in the employment of the Company. Clause 7.2 (e) It shall not retrench any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r are concerned, there is a provision in the documents pertaining to the proposed strategic sale, for giving upto 5 per cent of the equity to employees, and for a lock-in period of three years. Regarding guaranteeing that there will be no closure of any establishment of the company for a minimum period of 10 years, it is to be noted that the Closure of any undertaking of an Industrial Establishment of the kind of BALCO is governed by Section 25(O) of Chapter V-B of the Industrial Disputes Act, by virtue of which BALCO management before or after disinvestment is not free to close down any part of the BALCO at their sweet will. The closure is governed by the law of the land and under the existing provisions of Industrial Disputes Act, "genuineness and adequacy of the reasons stated by the employee" and "the interests of the general public and all other relevant factors" has to be examined by the appropriate government, and, for doing so the government give a reasonable opportunity of hearing to the employer and workmen and the persons interested in such closure. It means that unless and until the appropriate Government grants permission, the BALCO management will not be competent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted before taking a policy decision. In exercise of executive powers, policy decisions have to be taken from time to time. It will be impossible and impracticable to give a formal hearing to those who may be affected whenever a policy decision is taken. One of the objects of giving a hearing in application of the principles of natural justice is to see that an illegal action or decision does not take place. Any wrong order may adversely affect a person and it is essentially for this reason that a reasonable opportunity may have to be granted before passing of an administrative order. In case of the policy decision, however, it is impracticable, and at times against the public interest, to do so, but this does not mean that a policy decision which is contrary to law cannot be challenged. Not giving the workmen an opportunity of being heard cannot per se be a ground of vitiating the decision. If the decision is otherwise illegal as being contrary to law or any constitutional provisions, the person affected like the workmen, can impugn the same, but not giving a pre-decisional hearing cannot be a ground for quashing the decision. 49. Our attention was invited to the decision in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent should be in public interest, it is not shown how prior consultation with employees of a PSE before disinvestment is a facet of such public interest." (p. 478) 51. As a result of disinvestment of 51 per cent of the shares of the company, the management and control, no doubt, has gone into private hands. Nevertheless, it cannot, in law, be said that the employer of the workmen has changed. The employees continue to be under the company and change of management does not in law amount to a change in employment. 52. Apart from the fact that it will not be open to a Court to consider whether there has been a gross failure to evolve a comprehensive package towards implementation of the policy on disinvestment, as was contended by the Advocate-General of Chhattisgarh, it is not possible to accept the said contention as being, in fact, correct. In the process of disinvestment, it is evident that the Central Government was aware of the interests of the workers and employees as a class. It was precisely for this reason that safeguards were inserted in the Shareholders Agreement. These terms, which have been referred to were incorporated in the agreement after the demands of the B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Chairman could not be a substitute for the recommendations of the expert body of the Commission and the Government of India should not have acted solely on the basis of the letter. It was submitted that there was, thus, gross departure from the recommendations made by the Commission and the same was without any valid reason of consideration of overwhelming public interest which has resulted in vitiating the decision-making process. 55. The Disinvestment Commission was established by the Government s Resolution on 23-8-1996. The Commission was to have a full-time Chairman and four part-time Members. The Commission was to make recommendations and be responsible for the implementation of the policies of the Government of India with respect to disinvestment. The terms of reference and the functions of the Commission were provided for in paras 3, 4 and 5 of the said Resolution. However, by another Resolution dated 12-1-1998, paras 3 to 5 were deleted. It was now specifically stated that the Disinvestment Commission shall be the advisory body and will carry out such activities relating to disinvestment as may be assigned to it by the Government. It was clearly stipulated therein th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d a valuer, Shri P.V. Rao. Simultaneously, with the process of valuation, steps were taken for selecting the strategic partner by calling for expression of interest after advertisements in leading Journals and newspapers. Nevertheless contention is sought to be raised that the method of valuation was faulty, some assets were not taken into consideration and that Rs. 551.5 crores offered by Sterlite did not represent the correct value of 51 per cent shares of the company along with its controlling interest. It is not for this Court to consider whether the price which was fixed by the Evaluation Committee at Rs. 551.5 crores was correct or not. What has to be seen in exercise of judicial review of administrative action is to examine whether proper procedure has been followed and whether the reserve price which was fixed is arbitrarily low and on the face of it, unacceptable. 57. Assets including shares can be sold in a number of ways, i.e. , they can be sold by public auction, tenders or sealed offers or by negotiations. The exercise which was undertaken to appoint valuers and to get a value of this controlling interest of 51 per cent of the shares was presumably to arrive at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd ultimately by the Cabinet Committee on Disinvestment. The system which was evolved was completely transparent. It was made known. Transparency does not mean the conducting of the Government business while sitting on the cross roads in public. Transparency would require that the manner in which decision is taken is made known. Persons who are to decide are not arbitrarily selected or appointed. 59. Here we have the selection of the global Adviser and the strategic partner through the process of issuance of global advertisement. It is the global Adviser who selected the valuer who was already on the list of valuers maintained by the Government. Whatever material was received was examined by High Power Committee known as the IMG and the ultimate decision was taken by the Cabinet Committee on Disinvestment. To say that there has been lack of transparency, under these circumstances, is uncharitable and without any basis. 60. It was contended on behalf of the State of Chhattisgarh that the land on which industry has been set up was originally tribal land. The said land could have been acquired and used by public sector undertaking but the tribal land could not be transferred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution provides that any substantial question of law as to the interpretation of the provisions of the Constitution can only be decided by a Bench of five judges. In Samatha s case ( supra ), it is a Bench of three Hon ble judges who by majority of 2:1 interpreted the Fifth Schedule of the Constitution. However, what is important to note here is, as already observed herein above, that the provisions of the Madhya Pradesh Land Revenue Code, 1959 and section 165, in particular, are not in pari materia with the aforesaid section 3 of the Andhra Pradesh Regulation. 64. Section 165 of the M.P. Revenue Code, 1959 deals with transfer of rights of Bhumiswami. Prior to its amendment on 29-11-1976, sub-section (6) of section 165 reads as follows :- "Notwithstanding anything contained in sub-section (1), the right of a Bhumiswami belonging to a tribe which has been declared to be an aboriginal tribe by the State Government by a notification in that behalf for the whole or a part of the area to which this Code applies shall not be transferred to a person not belonging to such tribe without the permission of a Revenue Officer not below the rank of a Collector, given for reasons to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whom it was originally transferred. The giving of land to BALCO on lease was in compliance with the provisions of section 165(6) of the revenue Code. Moreover, change of management or in the shareholding does not imply that there has now been any transfer of land from one company to another. If the original grant of lease of land and permission to transfer in favour of BALCO between the years 1968 and 1972 was valid, then, it cannot now be contended that there has been another transfer of land with the Government having been reduced its stake to 49 per cent. Even if BALCO had been a non-public sector undertaking the transfer of land to it was not in violation of the M.P. Land Revenue Code. The decision of this Court in Samatha s case ( supra ) is inapplicable in the present case as the statutory provision here does not contain any absolute prohibition of the type contained in section 3(1) of the Andhra Pradesh Regulation, which was the basis of the decision in Samatha s case ( supra ). Transferred Case No. 9 of 2001. Shri B.L. Wadhera has, in recent years, become a persistent Public Interest Litigant who has to his credit fairly large number of Writ Petitions filed in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essary to avoid exploitation (inter-country adoption, the education of the children of the prostitutes). l Where judicial intervention is necessary for the protection of the sanctity of democratic institutions (independence of the judiciary, existence of grievances redressal forums). l Where administrative decisions related to development are harmful to the environment and jeopardize people s to natural resources such as air or water." There is, in recent years, a feeling which is not without any foundation that Public Interest Litigation is now tending to become publicity interest litigation or private interest litigation and has a tendency to be counter-productive. 69. PIL is not a pill or a panacea for all wrongs. It was essentially meant to protect basic human rights of the weak and the disadvantaged and was a procedure which was innovated where a public spirited person files a petition in effect on behalf of such persons who on account of poverty, helplessness or economic and social disabilities could not approach the Court for relief. There have been, in recent times, increasingly instances of abuse of PIL. Therefore, there is a need to re-emphasize the parameters w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution. It is a fascinating exercise for the court to deal with public interest litigation because it is a new jurisprudence which the court is evolving a jurisprudence which demands judicial statesmanship and high creative ability. The frontiers of public law are expanding far and wide and new concepts and doctrines which will change the complexion of the law and which were so far as embedded in the womb of the future, are beginning to be born. 25. Before we part with this general discussion in regard to locus standi , there is one point we would like to emphasise and it is, that cases may arise where there is undoubtedly public injury by the act or omission of the State or a public authority but such act or omission also causes a specific legal injury to an individual or to a specific class or group of individuals. In such cases, a member of the public having sufficient interest can certainly maintain an action challenging the legality of such act or omission, but if the person or specific class or group of persons who are primarily injured as a result of such act or omission, do not wish to claim any relief and accept such act or omission willingly and without protest, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, and get into the courts by filing vexatious and frivolous petitions and thus criminally waste the valuable time of the courts and as a result of which the queue standing outside the doors of the Court never moves which piquant situation creates a frustration in the minds of the genuine litigants and resultantly they lose faith in the administration of our judicial system." 73. While dealing with a case where PIL had been filed in relation to an award of contract, the factors which the Courts have to consider have been dealt with in the following observations in Raunaq International Ltd. v. I.V.R. Construction Ltd. [1999] 1 SCC 492. "17. Normally before such a project is undertaken, a detailed consideration of the need, viability, financing and cost-effectiveness of the proposed project and offers received takes place at various levels in the Government. If there is a good reason why the project should not be undertaken, then the time to object is at the time when the same is under consideration and before a final decision is taken to undertake the project. If breach of law in the execution of the project is apprehended, then it is at the stage when the viability of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obligation as the sentinel to defend the values of the Constitution and the rights of Indians. The courts must, therefore, act within their judicially permissible limitations to uphold the rule of law and harness their power in public interest. It is precisely for this reason that it has been consistently held by this Court that in matters of policy the court will not interfere. When there is a valid law requiring the Government to act in a particular manner the court ought not to, without striking down the law, give any direction which is not in accordance with law. In other words, the court itself is not above the law. 234. In respect of public projects and policies which are initiated by the Government the courts should not become an approval authority. Normally such decisions are taken by the Government after due care and consideration. In a democracy welfare of the people at large, and not merely of a small section of the society, has to be the concern of a responsible Government. If a considered policy decision has been taken, which is not in conflict with any law or is not mala fide , it will not be in public interest to require the court to go into and investigate those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lenge to the said show-cause notices in this petition. The petitioners have adequate remedy open to it under the acts under which the notices had been issued and, in appropriate case, can approach the High Court under article 226 of the Constitution. This writ petition is thus not entertained as alternative remedy is available to the petitioner. Conclusion In a democracy, it is the prerogative of each elected Government to follow its own policy. Often a change in Government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the Court. 78. Wisdom and advisability of economic policies are ordinarily not amenable to judicial review unless it can be demonstrated that the policy is contrary to any statutory provision or the Constitution. In other words, it is not for the Courts to consider relative merits of different economic policies and consider whether a wiser or better one can be evolved. For testing the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on economic matters, the Courts should be very circumspect in conducting any enquiry or investigation and must be most reluctant to impugn the judgment of the experts who may have arrived at a conclusion unless the Court is satisfied that there is illegality in the decision itself. 83. Lastly, no ex-parte relief by way of injunction or stay especially with respect to public projects and schemes or economic policies or schemes should be granted. It is only when the Court is satisfied for good and valid reasons, that there will be irreparable and irretrievable damage can an injunction be issued after hearing all the parties. Even then the Petitioner should be put on appropriate terms such as providing an indemnity or an adequate undertaking to make good the loss or damage in the event the PIL filed is dismissed. 84. It is in public interest that there should be early disposal of cases. Public Interest Litigation should, therefore, be disposed of at the earliest as any delay will be contrary to public interest and thus become counter-productive. For the aforesaid reasons stated in this judgment, we hold that the disinvestment by the Government in BALCO was not invalid. Tra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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