Himachal Pradesh High Court
Date Of Decision: 22.11.2024 vs Himachal Pradesh Housing & Urban ... on 22 November, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:12418 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.3077 of 2023 Date of Decision: 22.11.2024 _______________________________________________________ Madan Lal Choudhary & others .......Petitioners Versus Himachal Pradesh Housing & Urban Development Authority & others ... Respondents _______________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 Yes For the Petitioners: Mr. Anshul Bansal, Senior Advocate with Mr. Anshul Attri, Advocate.
For the Respondents: Mr. Jeevesh Sharma, Advocate vice Mr. R.L.Sharma, Advocate, for respondent Nos. 1 to 3.
Mr. K.D.Sood, Senior Advocate with Mr. Het Ram Thakur, Advocate, for respondent No.4.
Mr. Sudhir Thakur, Senior Advocate with Mr. Somesh Sharma, Advocate, for respondent No.5.
_______________________________________________________ Sandeep Sharma, Judge(oral):
By way of instant petition filed under Article 226 of the Constitution of India, petitioners have prayed for following main reliefs:-
"(i) That the Lease Deed dated 29th November 2022(Annexure P-2) may kindly be declared as void-ab-initio and resultantly be quashed and set aside;1
Whether the reporters of the local papers may be allowed to see the judgment? 2
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(ii) That respondent No.4 may kindly be directed to restore the additional land measuring 899.97 sq. mtrs, neat Plot No.46, Sector 1-A, Parwanoo, District Solan (H.P.) to its original position at his risk and cost;
(iii) That the entire vacant land between the road of Sector 1-A at Parwanoo and old NH-22(Kalka-Shimla Highway, now State Highway) may kindly be ordered to be declared as a green land/open space vested in and maintained by the Municipal Corporation, Parwanoo in terms of Section 23(2) of the Himachal Pradesh Housing and Urban Development Authority Act, 2004".
2. Precisely, the grouse of the petitioners as has been highlighted in the petition and further canvassed by Mr. Anshul Bansal, learned Senior Advocate, duly assisted by Mr. Anshul Attri, Advocate, representing the petitioners, is that respondent-HIMUDA in violation of the provisions of Himachal Pradesh Housing & Urban Development Authority Act, 2004 and Rules, Regulations and Bye- Laws framed there under as well as Revised Development Plan, unlawfully and illegally sold the land to respondent No.4 under New Policy for allotment of land/additional land in Colonies of HIMUDA (Annexure R-1).
3. Pursuant to the notices issued in the instant proceedings, respondents have filed reply, thereby attempt has been made to justify the action of the respondent-HIMUDA inasmuch as allotment of land belonging to HIMUDA in favour of respondent No.4. Careful perusal of communication dated 04.04.2022 (Annexure R-3), 3 2024:HHC:12418 clearly reveals that in terms of revised policy, as detailed hereinabove, respondent-HIMUDA, besides making allotment of surplus land in favour of respondent No.4, also made similar allotments in favour of several persons, as detailed in afore communication. Since during the proceedings of the case, this Court was unable to lay its hand to the public notice, if any, issued by HIMUDA prior to selling/leasing out surplus/additional land, if any, in Sector 1-A, Parwanoo, it specifically called upon Mr. Jeevesh Sharma, learned counsel representing respondent-HIMUDA vide order dated 12.11.2024 to have instructions to the effect that "
Whether any public notice was issued for allotment of unused/surplus land, if any, in residential Sector 1A, Parwanoo, before making allotment in favour of private respondent No.4."
Pursuant to aforesaid direction, above named counsel has placed on record communication dated 22.11.2024, issued under the signatures of Administrative Officer, HIMUDA, Shimla, which reads as under:-
" In compliance to the Hon'ble High Court order dated 12.11.2024 in the Court case titled CWP No.3077 of 2023, court case titled Madan Lal Choudhary and others vs. HIMUDA and others, it is intimated that no public notice was issued for allotment of unused/surplus land in Section
-1A at Parwanoo before making allotment, because it was not a developed unit, whereas this is a patch of land which was no use to HIMUDA and the said land was allotted to the 4 2024:HHC:12418 lessee on As is where is Basis, on the report of Executive Engineer HIMUDA Division Parwanoo, as well as on the recommendation of Additional Land Committee of HIMUDA. Beside further approval of the then Chairman of HIMUDA was also taken prior making allotment. Further it is also intimated that no advertisement/public notice has been issued for this type of patch of land or for additional land and the same has been allotted on the request of the applicant/ allottee and for this a committee has already been formed in HIMUDA by the Govt. for such cases. After receiving request from such allottee/applicant, the field report is sought from the concerned Executive Engineer and on receipt of the same all such type of cases are referred to Additional Land Allotment Committee which inspects the site and after inspection it recommends the cases of the applicants/allottees as per site condition for allotment. The same procedure was also adopted in the instant case and as per additional land policy of HIMUDA there exist a provision to allot the additional land/patch of land to the allottee/private land owners.
Therefore, you are requested to apprised the Hon'ble High Court of HP and intimate the outcome of the case to this office, please."
4. Careful perusal of aforesaid communication clearly reveals that prior to making application, if any, at the behest of private respondent, no public notice was ever issued for allotment of unused/ surplus land in Sector-1A, Parwanoo. Though, aforesaid communication reveals that approval of the then Chairman of HIMUDA was taken prior to making allotment in favour of respondent No.4 as well as other similarly situate person, but definitely there is no record suggestive of the fact that prior to considering the 5 2024:HHC:12418 application, if any, made by private respondent and other persons for allotment of surplus/unused land, public notice was issued. Such a notice would have informed the general public of the Board's decision to lease out surplus or additional land. While justifying its action of not issuing advertisement/public notice, attempt has been made by respondent-HIMUDA to carve out a case that no advertisement/ public notice was required for leasing/selling out patch of land, which was otherwise of no use to HIMUDA. Aforesaid explanation rendered on record is totally absurd, especially when learned counsel representing the respondent-HIMUDA was unable to refute that while leasing out additional/surplus land in favour of respondent No.4, it was able to fetch more than 90.00 lac rupees, meaning thereby land was not useless. No person would have give such a huge amount for a useless land, rather documents adduced on record by the petitioners itself suggest that land, which ultimately came to be allotted in favour of respondent No.4 situate nearby residential area, but adjacent to National Highway. It has been further stated that allotment was made on the basis of recommendation made by the Allotment Committee consisting of Executive Engineer and other officers of HIMUDA Division, Parwanoo.
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5. Since, it is apparent from the record that respondent- HIMUDA before making allotment of additional/surplus land in favour of respondent No.4 had not issued any public notice, thereby inviting applications from the general public, this Court need not to go into other aspects of the mater, rather allotment made merely on the basis of similar application filed by private respondent, deserves to be quashed. Needless to say, by now it is well settled that property belonging to State cannot be transferred/alienated on the basis of 'First Come First Served', rather to eliminate the arbitrariness and nepotism, State is always duty-bound to adopt the method of auction by giving wide publicity, so that all eligible persons can participate in the process. In this regard, reliance is placed upon the judgment passed by Hon'ble Apex Court in Centre for Public Interest Litigation and others versus Union of India and others, (2012) 3 Supreme Court Cases 1, wherein it has been held as under:-
"81. In Fomento Resorts and Hotels Ltd. case [(2009) 3 SCC 571 : (2009) 1 SCC (Civ) 877] , the Court referred to the article of Prof. Joseph L. Sax and made the following observations: (SCC pp. 614-15, paras 53-55) "53. The public trust doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. This doctrine puts an implicit embargo on the right of the State to transfer public properties to private party if such transfer affects public interest, mandates affirmative State action for effective 7 2024:HHC:12418 management of natural resources and empowers the citizens to question ineffective management thereof.
54. The heart of the public trust doctrine is that it imposes limits and obligations upon government agencies and their administrators on behalf of all the people and especially future generations. For example, renewable and non- renewable resources, associated uses, ecological values or objects in which the public has a special interest (i.e. public lands, waters, etc.) are held subject to the duty of the State not to impair such resources, uses or values, even if private interests are involved. The same obligations apply to managers of forests, monuments, parks, the public domain and other public assets. Professor Joseph L. Sax in his classic article, 'The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention' (1970) [Ed.:
68 Mich L Rev 471 (1970)] , indicates that the public trust doctrine, of all concepts known to law, constitutes the best practical and philosophical premise and legal tool for protecting public rights and for protecting and managing resources, ecological values or objects held in trust.
55. The public trust doctrine is a tool for exerting long-
established public rights over short-term public rights and private gain. Today every person exercising his or her right to use the air, water, or land and associated natural ecosystems has the obligation to secure for the rest of us the right to live or otherwise use that same resource or property for the long-term and enjoyment by future generations. To say it another way, a landowner or lessee and a water right holder has an obligation to use such resources in a manner as not to impair or diminish the people's rights and the people's long-term interest in that property or resource, including down slope lands, waters and resources."
94. There is a fundamental flaw in the first-come-first-served policy inasmuch as it involves an element of pure chance or 8 2024:HHC:12418 accident. In matters involving award of contracts or grant of licence or permission to use public property, the invocation of first-come-first-served policy has inherently dangerous implications. Any person who has access to the power corridor at the highest or the lowest level may be able to obtain information from the government files or the files of the agency/instrumentality of the State that a particular public property or asset is likely to be disposed of or a contract is likely to be awarded or a licence or permission is likely to be given, he would immediately make an application and would become entitled to stand first in the queue at the cost of all others who may have a better claim.
95. This Court has repeatedly held that wherever a contract is to be awarded or a licence is to be given, the public authority must adopt a transparent and fair method for making selections so that all eligible persons get a fair opportunity of competition. To put it differently, the State and its agencies/instrumentalities must always adopt a rational method for disposal of public property and no attempt should be made to scuttle the claim of worthy applicants. When it comes to alienation of scarce natural resources like spectrum, etc. it is the burden of the State to ensure that a non-discriminatory method is adopted for distribution and alienation, which would necessarily result in protection of national/public interest.
96. In our view, a duly publicised auction conducted fairly and impartially is perhaps the best method for discharging this burden and the methods like first-come-first-served when used for alienation of natural resources/public property are likely to be misused by unscrupulous people who are only interested in garnering maximum financial benefit and have no respect for the constitutional ethos and values. In other words, while transferring or alienating the natural resources, the State is duty-bound to adopt the 9 2024:HHC:12418 method of auction by giving wide publicity so that all eligible persons can participate in the process.
6. While elaborating the concept of "Public Trust Doctrine", Hon'ble Apex Court in afore judgment categorically said that afore doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public, rather than to permit their use for private ownership or commercial purposes. Aforesaid doctrine of public trust puts an implicit embargo on the right of the State to transfer public properties to private party, especially if such transfer affects public interest.
7. Reliance is also placed upon another judgment passed by Hon'ble Apex Court in Akhil Bhartiya Upbhokta Congress versus State of Madhya Pradesh and others, (2011)5 Supreme Court Cases 29, wherein Hon'ble Apex Court held that State can never allot land to the institutions/organizations engaged in educational, cultural, social or philanthropic activities except by way of auction. Hon'ble Apex Court in afore judgment has categorically said that in such like cases, there is necessity to fix a reserve price and thereafter same can be put to auction, so that maximum price/ amount is fetched. Most importantly, in afore case, Hon'ble Apex Court ruled that State or its agencies cannot give largesse to any person according to the sweet will and whims of the political entities and/or officers of the State, rather every action/ 10 2024:HHC:12418 decision of the State and/or its agencies/instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well defined policy, which shall be known to the public.
8. At this stage, it would be profitable to reproduce paras No. 64 to 68 of afore judgment herein below:-
"64. In New India Public School v. HUDA [(1996) 5 SCC 510] , this Court approved the judgment of the Division Bench of the Punjab and Haryana High Court in Seven Seas Educational Society v. HUDA [AIR 1996 P&H 228 : (1996) 113 PLR 17] , whereby allotment of land in favour of the appellants was quashed and observed: (New India Public School case [(1996) 5 SCC 510] , SCC p. 515, para 4) "4. A reading thereof, in particular Section 15(3) read with Regulation 3(c) does indicate that there are several modes of disposal of the property acquired by HUDA for public purpose. One of the modes of transfer of property as indicated in sub-section (3) of Section 15 read with sub- regulation (c) of Regulation 5 is public auction, allotment or otherwise. When public authority discharges its public duty the word 'otherwise' would be construed to be consistent with the public purpose and clear and unequivocal guidelines or rules are necessary and not at the whim and fancy of the public authorities or under their garb or cloak for any extraneous consideration. It would depend upon the nature of the scheme and object of public purpose sought to be achieved. In all cases relevant criterion should be predetermined by specific rules or regulations and published for the public. Therefore, the public authorities are required to make necessary specific regulations or valid guidelines to exercise their discretionary powers; otherwise, the salutary procedure would be by public auction. The Division Bench, 11 2024:HHC:12418 therefore, has rightly pointed out that in the absence of such statutory regulations exercise of discretionary power to allot sites to private institutions or persons was not correct in law."
65. What needs to be emphasised is that the State and/or its agencies/instrumentalities cannot give largesse to any person according to the sweet will and whims of the political entities and/or officers of the State. Every action/decision of the State and/or its agencies/instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well-defined policy, which shall be made known to the public by publication in the Official Gazette and other recognised modes of publicity and such policy must be implemented/executed by adopting a non- discriminatory and non-arbitrary method irrespective of the class or category of persons proposed to be benefited by the policy. The distribution of largesse like allotment of land, grant of quota, permit licence, etc. by the State and its agencies/instrumentalities should always be done in a fair and equitable manner and the element of favouritism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular functionary or officer of the State.
66. We may add that there cannot be any policy, much less, a rational policy of allotting land on the basis of applications made by individuals, bodies, organisations or institutions dehors an invitation or advertisement by the State or its agency/instrumentality. By entertaining applications made by individuals, organisations or institutions for allotment of land or for grant of any other type of largesse the State cannot exclude other eligible persons from lodging competing claim. Any allotment of land or grant of other form of largesse by the State or its agencies/instrumentalities by treating the exercise as a private venture is liable to be treated as arbitrary, discriminatory and an act of favouritism and/or 12 2024:HHC:12418 nepotism violating the soul of the equality clause embodied in Article 14 of the Constitution.
67. This, however, does not mean that the State can never allot land to the institutions/organisations engaged in educational, cultural, social or philanthropic activities or are rendering service to the society except by way of auction. Nevertheless, it is necessary to observe that once a piece of land is earmarked or identified for allotment to institutions/organisations engaged in any such activity, the actual exercise of allotment must be done in a manner consistent with the doctrine of equality. The competent authority should, as a matter of course, issue an advertisement incorporating therein the conditions of eligibility so as to enable all similarly situated eligible persons, institutions/organisations to participate in the process of allotment, whether by way of auction or otherwise. In a given case the Government may allot land at a fixed price but in that case also allotment must be preceded by a wholesome exercise consistent with Article 14 of the Constitution.
68. The allotment of land by the State or its agencies/instrumentalities to a body/ organization/ institution which carry the tag of caste, community or religion is not only contrary to the idea of secular democratic republic but is also fraught with grave danger of dividing the society on caste or communal lines. The allotment of land to such bodies/ organisations/ institutions on political considerations or by way of favouritism and/or nepotism or with a view to nurture the vote bank for future is constitutionally impermissible."
9. In the case at hand, it is quite apparent, rather stands admitted by the respondent-HIMUDA that before leasing out so called additional/surplus land in favour of private respondent and other similarly situate persons, no public notice was issued, rather 13 2024:HHC:12418 straightway on the application made by private respondent and other similarly situate persons, respondent-HIMUDA on the basis of recommendation made by Allotment Committee, proceeded to lease out the valuable property of the State to private respondent or similarly situate persons on throw way prices. Since, it is not in dispute that for so called useless land respondent-HIMUDA could fetch more than 90.00 lac rupees, this Court has reason to believe and presume that had HIMUDA made general advertisement, inviting application for allotment of additional surplus land, it would have fetched much more than Rs.90.00/-lac. Inaction, if any, on the part of respondent-HIMUDA in issuing advertisement for leasing/selling out property in question, State exchequer has been put to loss and as such, allotment made in favour of private respondent, which otherwise appears to have been made ignoring the interest of State, deserves to be quashed and set-aside.
10. At this stage, Mr. Jeevesh Sharma, learned counsel for the respondent-HIMUDA, while making reference to new policy for allotment of land/additional land in the colonies of HIMUDA (available at page No.224), which itself appears to be formulated with a view to give undue benefit to some persons, attempted to argue that as per policy, allotment of vacant land/ unusable patch of land can be made to private land owners, whose land is 14 2024:HHC:12418 abutting/touching HIMUDA's boundary. Mr. Sharma, submitted that since it is not in dispute that respondent No.4 has been already allotted plot in the residential area in Sector 1, no illegality can be said to have been committed by the HIMUDA, while making allotment of unused/ surplus land on the application of respondent No.4. Though, this Court is of the definite view that aforesaid policy for allotment of land/additional land in the colonies of HIMUDA, is totally in violation of the law laid down by the Hon'ble Apex Court, as taken note hereinabove, but even if same is taken into consideration, same may not be of any help for the respondent-HIMUDA for the reason that as per Clause 5 of afore policy procedure has been made for allotment of vacant unusable patch of land to private land owners, whose land is abutting/touching HIMUDA's boundary, but in the case at hand though, respondent No.4 has been allotted residential plot in Sector -1, but it is not in dispute that land now which has been leased/sold out to him as additional land is far away from the residential plot allotted to him. Mr. Sharma, was unable to dispute that land, which has been leased / sold out to the petitioners as unused land is not abutting to the land, which stands allotted in favour of the petitioner, rather same is in a different sector, if it is so, aforesaid provision, if any, in the revised policy cannot be made applicable in the case at hand.
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11. Consequently, in view of aforesaid observations made hereinabove, this Court finds merit in the present petition and accordingly same is allowed and Lease Deed dated 29th November 2022 (Annexure P-2), thereby leasing out the land in favour of private respondent No.4, is quashed and set aside and additional land measuring 899.97 sq. meters near Plot No.46, Sector 1-A, Parwanoo, District Solan, Himachal Pradesh, is ordered to be restored to its original position. Since there is nothing on record that there was connivance, if any, of petitioners and respondent No.4, rather respondent No.4 on the basis of policy framed by respondent- HIMUDA submitted application, which ultimately came to be allowed, amount, if any, deposited by respondent No.4 shall also be refunded to him by the respondent-HIMUDA. Pending applications, if any, also stand disposed of.
(Sandeep Sharma), Judge November 22, 2024 (shankar)