The Madras High Court has held that if a decision taken by an erstwhile Government is good to the public and the society at large, the successive Government can very well continue the project, if it is yet to be completed or half way through, for which further financial support is required.
Justice R Suresh Kumar said,
"If the erstwhile or the previous Government has taken a decision for any project to be undertaken for the welfare of the people, for which heavy amount of Government exchequer has been already spent, while taking a review in respect of those decision, the successive Government must borne in mind that, such kind of huge spending from exchequer shall not be allowed to go a waste."
The observation was made in a petition challenging the communication issued by the Registrar of Cooperative Societies stopping the construction of the Yercaud State Level Co-operative Training Institute, sanctioned by the previous AIADMK government. The second challenge was made against a GO issued by present DMK government whereby the administrative and financial sanction already allowed for the institute was canceled.
The petitioner contended that the decision to abruptly stop the construction was not taken by the government and was taken only at the Departmental level. He also stated that the earlier decision to construct the Institute was taken by the Government and thus, could not be stopped by the Registrar.
The main concern of the court was whether the above decision to stop construction was a policy decision or one taken at the Department level. For this, the court sought details with respect to the decision. The respondents informed the court that the decision to stop the construction work at the Yercaud Institute was taken at a Review Meeting of the Department concerned conducted by the Chief Minister on 03.07.2021. It was based upon the above decision that the Registrar had made the communication dated 28.07.2021.
Policy Decision and Judicial Review
The court held that it was clear that the decision to stop construction was taken by the Government and the subsequent communication of the Registrar as a result of the Government decision. Thus, this decision could not be challenged in a judicial review.
The court relied on the decision of the Supreme court in Union of India and others v. Kannadapara Sanghatanegala Okkuta & Kannadigara (2002) and the decision of the Madras High Court in Dr. G. Krishnamurthy v. Chief Secretary to the Government of Tamil Nadu and others (2015) and R.Veeramani v. The State of Tamil Nadu & others (2013) wherein it has been clearly established that policy decision with respect to the construction of certain buildings etc cannot be challenged in judicial review.
"….The scope of judicial review on policy matters are very limited. Moreover, whether a particular type of training Institute is required for the state or not is necessarily a policy decision to be taken, of course on the basis of the expert views given in this regard, by the State Government. Like that, such kind of training institute should be at the State level or National level also again be the policy decision to be taken by the State Government."
"If at all, a policy decision already been taken by the State Government to establish a State level Training Institute at Yercaud, of course the successive Government has taken a further policy decision for specific reasons that, such kind of State Level Institute is not required in the State because already two such State Level Institutes are located and are well doing, moreover spending of a sum of Rs.61.80 crores, to establish one more State Level Training Institute is a wasteful expenditure, those reasons cannot be pierced by this Court by way of judicial review to give the answer that, the subsequent policy decision is not correct and the earlier one is correct."
The Court stated if an elected Government has taken a policy decision, under which, a project is conceived and put into action, when a subsequent Government is elected by a democratic exercise, it is for the successive Government to review such policy decision, based on the policy under which they have given the election manifesto to the people who vote them to power and accordingly, the earlier decision taken by the erstwhile Government can very well be reviewed by the subsequent Government, ofcourse within the parameters or four corners of the Constitution.
However, it added that when such a review is undertaken by the successive Government, it must borne in mind that, whether the earlier decision taken by the erstwhile Government, for which, if the money of the exchequer had been spent, whether to be allowed to go a waste or to be utilised for a better alternative utility of the public.
During the course of the hearing, the court also put forward certain suggestions to the Government:
- Whenever a decision taken by the earlier Government is good for the public and the society at large, the successive governments can continue the project if it is completed or halfway through and for which financial support is required.
- If for any project of the previous Government, a heavy amount from the Government exchequer has already been spent, the successive government shall not allow that fund to go to waste.
- Merely because the previous government was from a different political dispensation, all policy decisions of the previous government may not be reviewed. Only such decisions, which are not good for the welfare of the people at large may be reviewed and alternative best administrative solution can be given.
In the present case, the Court said that the State Administration has taken a decision to establish a National Level Institute at Kodaikanal, for which certain reasons have been given, ofcourse the said decision is not questioned by the petitioner in these writ petitions. Even the said decision cannot be stated to be a flawed one by the Court, unless and until the explicit arbitrariness touching the Constitutional parameters in this regard as enunciated under various decisions of the Apex Court are available for Judicial Review.
The Court also pointed out that, in certain areas, all successive Governments for several decades in this State have consistently taken some policy decision which support the earlier Government's decision irrespective of the political dispensation.
Referring to Tamil Nadu government's prohibition policy under which liquor distribution is done through TASMAC, said,
"Such a prohibition policy decision is certainly injurious and detrimental to the people at large in this State and also against the growth of the State...Even these kind of policy decisions, though detrimental to the interest of the people cannot be questioned through a judicial review. Courts have laid off their hands at times when these policy decisions were questioned."
Finally, the Court concluded that judicial review would not go against policy decision, unless there is a colourable exercise with rampant arbitrariness. The aforesaid decision taken to cancel the establishment of the State Level Institute at Yercaud cannot be brought under the said category as referred to above. Therefore such a policy decision cannot be questioned before this Court by way of judicial review.
Case Title: G. Sendrayan v. The Registrar of Co-operative Societies and others
Case No: W.P No. 23369 and 25287 of 2021
Counsel for Petitioner: Mr. P.H Aravind Pandian, Senior Counsel for Mr L.P Shanmugasundaram
Counsel for Respondents: Mr. R. Shanmugasundaram, Advocate General assisted by Mr. A. Selvendran, Special Government Pleader
Citation: 2022 LiveLaw (Mad) 214