Allahabad High Court
Raghubir Singh vs State Of U.P. & Another on 19 March, 2015
Author: Dilip Gupta
Bench: Dilip Gupta, Vinod Kumar Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 29 Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 56499 of 2014 Petitioner :- Raghubir Singh Respondent :- State Of U.P. & Another Counsel for Petitioner :- H.C.P. Yadav,Rajiv Shukla Counsel for Respondent :- C.S.C., Ravi Kant, Shivam Yadav, Anil Divan, Ranvir Singh, Priya Shahdeo, Madhurima Kapoor, Durgesh Singh, Hon'ble Dilip Gupta,J.
Hon'ble Vinod Kumar Misra,J.
This Public Interest Litigation has been instituted by a person who claims that though he is actually residing at Kavi Nagar in district Ghaziabad but he is actually a native of village Parthala Khanjanpur, Tehsil Sadar in district Guatam Budh Nagar. The relief that has been claimed in this petition is for quashing the Scheme popularly called the 'Scheme 2014-15 (SPORTS CITY)1 issued by New Okhla Industrial Development Authority2 on 7 June 2014 for development of a SPORTS CITY in Sector 150. The second relief that has been claimed is for a direction upon NOIDA to amend its Scheme by inviting tenders after sub-dividing the entire area.
It needs to be noted that the petitioner had earlier filed a Public Interest Litigation bearing No.46506 of 2014 which was dismissed on 10 October 2014 with liberty to the petitioner to file a fresh petition after making appropriate disclosure as the petitioner had not made due disclosure as required by sub-rule (3A) of Rule 1 of Chapter XXII of the Allahabad High Court Rules, 19523 which were amended in view of the judgment of the Supreme Court in State of Uttaranchal Vs. Balwant Singh Chaufal & Ors.,4.
Learned Standing Counsel has made submission on behalf of State of U.P. which has been impleaded as respondent No.1. Sri Ravi Kant, learned Senior Counsel assisted by Sri Shivam Yadav has made submissions on behalf of respondent No.2-NOIDA while Sri Anil Divan, learned Senior Counsel assisted by Sri Ranvir Singh, Ms. Priya Shahdeo, Ms. Madhurima Kapoor and Sri Durgesh Singh has made submissions on behalf of respondent No.3-M/s. Lotus Green Constructions Pvt. Ltd. (Consortium).
A preliminary objection has been raised by Sri Anil Divan, learned Senior Counsel appearing for respondent No.3. as also by Sri Ravi Kant, learned Senior Counsel appearing for respondent No.2 that this petition should be dismissed as an important mandatory disclosure that the result of litigation will not lead to any undue loss to any person, body of persons or the State has still not been made in this PIL. In support of their contention, learned Senior Counsel have placed reliance on a decision rendered by the Lucknow Bench of this Court in Miscellaneous Bench No.4859 of 2010 (PIL)5.
Learned counsel for the petitioner submitted that a reading of the averments made in paragraph-2 of the writ petition and paragraph 5(c) of the rejoinder affidavit would make it clear that the necessary disclosures as contemplated by sub-rule (3-A) of Rule 1 of Chapter XXII of the Rules have been made. In fact learned counsel also submitted that a mere disclosure in the petition that the petitioner was a native of a village in district Gautam Budh Nagar where the project was being undertaken is sufficient for maintaining the PIL in view of the decision of the Supreme Court in Fertilizer Corporation Kamgar Union (Regd.), Sindri & Ors., Vs. Union of India & Ors.,6.
The preliminary objection raised by the respondents that this public interest litigation should be dismissed for the sole reason that the mandatory requirement as contemplated by sub-rule (3A) of Rule 1 of Chapter XXII of the Rules has not been made needs to be first considered.
To appreciate this preliminary objection, it would be appropriate to reproduce sub-rule (3A) of Rule 1 of Chapter XXII of the Rules which is as follows:-
"(3-A). In addition to satisfying the requirements of the other rules in this Chapter, the petitioner seeking to file a Public Interest Litigation, should precisely and specifically state, in the affidavit to be sworn by him giving his credentials, the public cause he is seeking to espouse; that he has no personal or private interest in the matter; that there is no authoritative pronouncement by the Supreme Court or High Court on the question raised; and that the result of the Litigation will not lead to any undue gain to himself or anyone associated with him, or any undue loss to any person, body of persons or the State."
What has been stated by the petitioner in paragraph 2 of the writ petition regarding due disclosure is as follows:-
"2. That so far as the bonafide intention of the petitioner is concerned it is humbly submitted before this Hon'ble Court that the petitioner is native of village Parthala Khanjanpur, Tehsil Sadar, district Gautam Budh Nagar and petitioner is presently residing at Kavi Nagar, Ghaziabad and so far as the bonafide intention is concerned it has well being accepted/verified by the National Green Tribunals in which the petitioner has filed a complaint pertaining to the same project which affected the ecological balance/environmental problems of the city which was bearing Original Application No.128 of 2014 and which was disposed of by the order dated August 11/2014, by the Principal Bench of the National Green Tribunal, New Delhi and the petitioner is highlighting the complete arbitrariness and the loss to the public exchequer by certain actions of the New Okhla Industrial Development Authority (NOIDA) which has been arrayed herein as Respondent No.2."
It has also been stated in paragraph 5(c) of the rejoinder affidavit filed by the petitioner to the counter affidavit of private respondent No.3 that:-
"5(c). That in response to para 5(c) of the counter affidavit it is humbly submitted that the petitioner has duly complied with the Sub-rule (3-A) of rule 1 of Chapter XXII of Allahabad High Court Rules 1952. The action of the petitioner cannot be in any way termed as abuse of P.I.L. jurisdiction as the petitioner vide the present petition is raising pertinent and substantial questions of law which concern the use of public resource by a public authority and it is further reiterated by the deponent that he or none of his family members or his relatives have none of any commercial interests nor has any direct or indirect gain of any type is accrued to the petitioner. Petitioner has love and affection to his native village and also because of public interest that petitioner has filed this writ petition."
Learned Senior Counsel appearing for the respondents, however, maintained that the petitioner has not made the due disclosure that the result of litigation will not lead to undue loss to any person, body of persons or the State, which is a mandatory requirement.
What has been stated by the petitioner in paragraph-2 of the writ petition for instituting this PIL is that though the petitioner is actually residing at Kavi Nagar, in district Ghaziabad but he is a native of a village in district Gautam Budh Nagar and that his bonafide intention in pursuing the public cause has been accepted by the National Green Tribunal in the complaint filed by the petitioner relating to the said project wherein it was emphasized by the petitioner that the project, if implemented, would disturb the ecological balance and cause environmental problems. It has also been stated in this petition that the petitioner only intends to highlight the arbitrariness of NOIDA in formulating the terms of the tender and the loss to the public exchequer that would be caused. In the rejoinder affidavit the petitioner has stated that action of the petitioner cannot in any way be termed as an abuse of the PIL jurisdiction as the petitioner has raised pertinent and substantial questions of law which concern the use of public resources by a public authority. It has also been stated that neither the petitioner nor his family members or his relatives have any commercial interest or gains of any type.
Sub-rule (3-A) which was introduced in Rule 1 of Chapter XXII of the Rules with effect from 1 May 2010 provides that a person seeking to file a Public Interest Litigation, should precisely and specifically state in the affidavit to be sworn by him giving (i) his credentials; (ii) the public cause he is seeking to his espouse; (iii) that he has no personal or private interest in the matter; (iv) that there is no authoritative pronouncement by the Supreme Court or the High Court on the question raised; and (v) that the result of the Litigation will not lead to any undue gain to himself or anyone associated with him or the result of litigation will not lead to any undue loss to any person, body of persons or the State.
Even if what has been stated in this petition is accepted, there is no averment in the writ petition or in the rejoinder affidavit filed by the petitioner that "the result of litigation will not lead to any undue loss to any person, body of persons or the State".
In Pankaj Srivastava (supra) a challenge was made to the constitutional validity of that portion of sub-rule (3A) of Rule 1 of Chapter XXII which requires the petitioner to state 'that the result of litigation will not lead to any undue loss to any person, body of persons or the State'. In paragraph 8 of the judgment, the Division Bench emphasized that though a Public Interest Litigation became an instrument of securing social and economic justice, it was also capable of being misused and abused for securing oblique private aims guided by extraneous reasons. It would be appropriate to reproduce paragraph-8 of the judgment which is as follows:-
"8. The experience which was, however, gained over several decades of the working of public interest litigation, was that just as this became a powerful instrument of securing social and economic justice; it was capable of being misused and abused for securing oblique private aims guided by extraneous reasons. Public interest litigation, as contemporary experience would show, has been misused by publicity seekers and by business competitors who seek to challenge important public projects in the garb of presenting petitions in the public interest. The object of such petitions is not to protect genuine public interest but to promote the private interest of various commercial interests. In a large number of cases, this results in delays and cost overruns. In other words, while public interest litigation has to be regarded as an instrument of protecting just public causes, it has to be protected equally against an abuse. The abuse of public interest litigation also results in a situation where the High Courts, which are faced with a flood of genuine litigation apart from public interest litigation, are deprived of the time and resources for dealing with ordinary civil and criminal cases. When a case, ostensibly in the public interest, is filed with an oblique motive and finally comes up for hearing, the Court may ultimately find the process of justice being derailed. In the meantime, incalculable harm may have been caused in terms of the time and resources which the justice delivery system has had to devote to such cases; by the delayed justice in genuine cases which should have been attended to but were not; and to public projects which are held up on account of such petitions. Holding up of important public projects is likely to have serious consequences for the rule of law as well as for sustained growth and development of a society, such as ours. The credibility of the justicing system may be imperiled when litigants at the receiving end of the spectrum are visited with the consequence of delay and abuse of the process of the Court."
(emphasis supplied) The Division Bench also noticed that the Supreme Court had emphasized that Public Interest Litigation has to be used with great care and circumspection and the Court has to ensure that behind the veil of public interest, an ugly private malice of vested interest does not lurk. The Division Bench then noticed the operative directions that had been issued by the Supreme Court in Balwant Singh Chaufal (supra), which are as follows:-
""(1) The Courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations.
(2)Instead of every individual Judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the rules prepared by the High Court is sent to the Secretary General of this Court immediately thereafter.
(3) The Courts should prima facie verify the credentials of the petitioner before entertaining a PIL.
(4) The Courts should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL.
(5) The Courts should be fully satisfied that substantial public interest is involved before entertaining the petition.
(6) The Court should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions.
(7) The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation.
(8) The Courts should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations."
Paragraphs 14 and 15 of the judgment of the Division Bench which deal with the statements which are required to be made under sub-rule (3-A) of Rule 1 of Chapter XXII of the Rules and the statement of which the vires which had been challenged, are as follows:-
"14. Sub-rule (3-A), which has been framed by this Court, requires a person espousing a public cause, to file an affidavit stating precisely, his credentials and the public cause which is sought to be espoused. This is intended to disclose to the Court, the full track record and bona fides of the petitioner. The petitioner has to similarly disclose that he or she has no personal or private interest in the matter and that there is no authoritative pronouncement by the Supreme Court or High Courts on the question raised. The last part of sub-rule (3-A) requires a disclosure that the result of the litigation will not lead to any undue gain to the petitioner or anyone associated with him, or any undue loss to any person, body of persons or the State. The words which have been used in sub-rule (3-A) are "undue gain" and "undue loss". The expression 'undue' is an expression which has a well settled legal connotation. 'Undue' is distinct from the expression 'due'. The expression 'due' means, inter alia, "just, proper, regular, and reasonable."7 The expression 'undue' is defined as something which is "excessive or unwarranted."8
15.Significantly, sub-rule (3-A) requires the petitioner to state that the result of the litigation will not result in any undue loss to any person, body of persons or the State. What is meant by undue, is that the litigation will not result in a loss which would be unwarranted in the sense of its being contrary to the rule of law. Undoubtedly, a litigation against the State, where a person moving the Court is held to be entitled to relief, may result in the Court granting relief against the State and in favour of the petitioner. The consequence of the relief which is granted, may impose a financial exaction or burden on the state. But, this is not what is intended to be covered by sub-rule 3-A of Rule 1, as amended. What sub-rule 3-A does is that it seeks to discourage the filing of cases causing undue loss to any person, body of persons or the state. The state in a democracy represents the collective will of the people. An undue loss is a loss which is sustained though the action was lawful, justified and in accordance with the rule of law. For instance, when a public project which complies with all legal norms is held up because of a frivolous petition, or a petition filed at the behest of a competitor, the loss to the public interest is undue because it was unwarranted. The expression 'undue' is not vague but has a meaning attributed to it. An undue loss is a loss which has been caused to a person, body of persons or state as a result of the pursuit of a litigation with an oblique motive or for extraneous considerations as distinct from a cause which is lawful. If a petition, which is filed ostensibly in public interest, is found not to be a genuine public interest litigation, the loss that may be caused to a person or to a body of persons or the state is undue because, as is well known, even the pendency of a litigation may be utilised to cause serious damage to the execution of a public project, a detriment to reputation or an irremediable injury. It was this abuse of the process that was sought to be obviated by requiring a disclosure on affidavit. That is why the expression that has been used is not 'loss' but 'undue loss'.
(emphasis supplied) Thus, what has been emphasized by the Division Bench in Pankaj Srivastava (supra) is that when a public project which complies with all legal norms is held up because of a frivolous petition, or a petition is filed at the behest of a competitor, the loss to the public interest is undue because it was unwarranted. 'Undue Loss' has been explained to be a loss which has been caused to a person, body of persons or State as a result of the pursuit of a litigation with an oblique motive or for extraneous considerations as distinct from a cause which is lawful and that if a petition, which is filed ostensibly in the public interest, is found not to be a genuine public interest litigation, the loss that may be caused to a person or to a body of persons or the State is undue because even the pendency of a litigation may be utilised to cause serious damage to the execution of a public project. It was this abuse of the process that was sought to be obviated by requiring a disclosure on affidavit.
The Division Bench, accordingly, rejected the contention of the petitioner that the imposition of such a requirement relating to "or any under loss to any person, body of persons or the State" resulted in a denial of access to justice and that if the cause which a person seeks to espouse is genuine and bona fide, there would be no difficulty in stating on affidavit, that the litigation would not result in any undue loss.
Fertilizer Corporation Kamgar Union (supra), on which reliance has been placed by learned counsel for the petitioner to contend that it is enough to state that the petitioner is a resident of the village concerned for entertaining a PIL, cannot be accepted in view of the subsequent decision of the Supreme Court in Balwant Singh Chaufal (Supra) on the basis of which the High Court Rules have been amended by adding Rule 3A to Rule 1 of Chapter XXII.
A reading of paragraph-2 of the writ petition and paragraph 5(c) of the rejoinder affidavit clearly indicates that there is no averment by the petitioner that 'the result of litigation will not lead to any undue loss to any person, body of persons or the State'. In the absence of such a disclosure, this Public Interest Litigation deserves to be dismissed for non-disclosure of a mandatory requirement contemplated by Rule 3A of Rule 1 of Chapter XXII of the Rules.
Learned counsel for the petitioner, however, submitted that the observations made by the National Green Tribunal, Principal Bench, New Delhi in the order dated 11 August 2014 while disposing of Original Application No.128 of 2014 filed by the petitioner that the Tribunal would not have any jurisdiction to examine the invitation or awarding of the tender for execution of a work would make this PIL maintainable and it is not open to the respondents to raise any objection about the maintainability of this PIL. Elaborating his submissions, learned counsel pointed out that the tender notice that was issued by NOIDA tends to confer undue benefit on certain individuals or companies at the expense of more deserving persons. Learned counsel for the petitioner submitted that a composite development of about 300 acres of plot by one developer would require stringent financial and technical eligibility and certain clauses of the tender permit the successful bider to sub-divide and sub-lease plots which would result in financial benefits to the successful bidder at the cost of NOIDA.
Learned Senior Counsel for respondents, however, submitted that the present petition is not a genuine PIL and the petitioner appears to have been set up by rival businessmen, which is apparent from the nature of the reliefs that have been claimed in this petition and that a person should approach the Court in a PIL with bonafide and not oblique consideration as was observed by the Supreme Court in Balwant Singh Chaufal (supra) and Duttaraj Nathuji Thaware Vs. State of Maharashtra & Ors.,9.
The first prayer that has been made in this petition is for quashing the tender notice. The second prayer is for amending the tender notice by sub-dividing the entire area so that many competent builders instead of a single bidder can undertake the project.
In order to appreciate these contentions of learned counsel for the parties, it would be appropriate to first examine the Scheme floated by NOIDA for development to be carried out by the the successful bidder for sports and institutional facilities in the SPORTS CITY. The relevant details of the plot and the terms of the tender as have been stated in the Scheme are as follows:-
Sl. No. Plot No. Sector Area of the plot (approx. in Sqm.) Reserve price (in Rs./Sq.m.) Processing fee (in Rs.) Earnest Money (in Rs.)
1.
SC-02 150 12,00,000 18,865/-
10,00,000/-
20,00,00,000/-
Sl. No.Plot No.Sector Area of the plot (approx. in Sqm.) Reserve price (in Rs./sq.m.) Processing fee (in Rs.) Earnest money (in Rs.)
1.SC-02150 12,00,000 18,865/-
10,00,000/-
20,00,00,000/-
DEVELOPMENT OF SPORTS CITY: The development of SPORTS CITY to be carried out by the successful Applicant shall be planned for the sports & institutional facilities as per the specifications laid out by NOIDA along with other activities to support the development of the SPORTS CITY as a whole.
LAND USE OF SPORTS CITY The permissible broad break up of the total area under SPORTS CITY for different land uses shall as under:-
A. Recreational (Sports, Institutional & Other Facilities and open areas) not less than 70% B. Commercial not more than 0.5% Residential including Group Housing (1650 persons per hect) 29.5%.
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ESSENTIAL QUALIFICATIONS:-
TECHNICAL ELIGIBILITY CRITERIA:-
Details of minimum two completed projects related to real estate development and construction activities (excluding merely trading in real estate) like land development/housing/colonizing jobs of bonafide allotted land/commercial/IT/ITES projects development executed along with approximate cost and date of completion during the last 5 years to be submitted. The total compounding certificates/completion certificates should be a minimum of 10.00 lac sq. ft. In aggregate of construction by the Tenderer/Consortium Lead Member, its Relevant Members and their subsidiaries and holding company (ies), as per Annexure 1(C). FINANCIAL ELIGIBILITY CRITERIA:
Parameters
(i) Minimum Net Worth as on 31-3-2014 duly certified by the tenderer's statutory auditors/Chartered Accountant Rs. 125 Crores
(ii) Minimum Solvency as per Certificate not more than 6 months old, from a Nationalised/Scheduled Bank Rs.30 Crores
(iii) Minimum Total Turnover from real estate activities for the last 3 accounting years duly audited by the tenderer's statutory auditors/Chartered Accountant i.e. 2010-11, 2011-12 and 2012-13 as per Annexure-1(b) of this brochure.
Rs.250 Crores
(iv) Earnest Money Rs.20 Crores
(v) Processing Fee (Non adjustable/non refundable) Rs.10 Lakhs POSSESSION
1. Approximately 12,00,000 Sq. mtrs. of land is proposed to be made available to the lessee for the development of the SPORTS CITY on the basis of actual acquisition and physical possession for plot no. SC-02, Sector-150. NOIDA has earmarked 12,00,000 Sq. mtrs. approx. of land for the SPORTS CITY out of which approximately 3,00,000/- Sq. Mtrs. of land has already been acquired and is in possession of NOIDA. The allotment of balance land will be done as soon as the same is acquired and physical possession taken, for which "Reservation Letter" will be issued along with the Allotment Letter for the already acquired land.
2. Possession of allotted land will be handed over to the Lessee after execution and registration of lease deed.
3. Execution and registration of lease deed can be done only after a minimum payment of 20% of premium payment of one year lease rent in advance.
IMPLEMENTATION & COMPLETION OF PROJECT Implementation
1. The Lessee shall be required to complete the construction of minimum 15% of the permissible area earmarked for sports, institutional & other facilities within a period of 3 years from the date of execution of Lease Deed and shall complete the project in phases within 5 years. However, the residential and commercial development/construction may be completed in phases within 7 years. Further more, the lessee has to develop residential and commercial component in the project in proportion to area earmarked for recreational uses. However, extension in exceptional circumstances can be granted by NOIDA, on payment of extension charges applicable as per prevailing policy at the time of granting such extension. Delays due to encroachment, force majure, legal issues like stay orders etc. shall be considered for extension.
2. The construction on the land shall have to be done as per the controls prescribed under these Terms and Conditions and the building regulations and directions of the NOIDA.
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GENERAL TERMS AND CONDITIONS .........................
The lessee shall be entitled to sub-lease the sports, other facilities and institutional activity, with prior approval of NOIDA/Lessor.
Commercial and residential area can be sub-leased without any approvals on tripartite agreement basis.
The transfer of whole plot and sub-lease of built up space shall be governed by the transfer policy prevailing at the time of such transfer or sub-lease of built up space.
Without obtaining the completion certificate the lessee shall have the right to sub-divide the allotted plot into suitable smaller plot as per the planning norms of the NOIDA only for the area available for residential & commercial use and to transfer the same to the interested parties, if any, with the prior approval of the NOIDA on payment of transfer charges at the rate prevailing on the date of transfer. However, the area of each of such sub-divided plot should not be less than 8,000 Sq.mtrs.
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The lessee/allottee who develop the project through its subsidiary company shall be entitled for sub leasing the portion of allotted/leased land/built-up area in favour of the subsidiary companies and the first transfer by such subsidiary company, of the said allotted/leased land/built-up area which is being developed or proposed to be developed by the subsidiary shall be without any transfer charges. However, for subsequent transfer/sub-lease, transfer charges as per prevailing policy (at the time of transfer) of the Lessor/NOIDA Authority shall be payable.
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Facility Minimum amount to be spent (in crores) Golf Course (9 Hole) 40.00 Multipurpose Playfield 10.00 Tennis Centre 35.00 Swimming Centre 50.00 Pro-shops/food and beverage 30.00 IT Centre/Administration/Media Centre 65.00 Indoor Multipurpose Sports Hall including
- Gymnastics
- Badminton
- Table Tennis
- Squash
- Basket Ball
- Volley Ball
- Rock climbing 30.00 Cricket Academy 50.00 Internal Roads & Parks 25.00 Hospital/Senior Living/Medicine Centre 60.00 Circulation Spaces, Carpeting, Utilities etc. 15.00 A perusal of the Scheme shows that an approximate area of 12,00,000 Sq. Mts. of land in Sector 150 was earmarked for Sports and Institutional facilities in the SPORTS CITY to be carried out by the successful bidder which include recreational, commercial and residential facilities. The financial eligibility criteria was that the bidder should have minimum net-worth as on 31 March 2014 of Rs.125 Crores. A minimum solvency certificate of Rs.30 Crores and a minimum total turnover from Real Estate activities for the last three accounting years should be Rs.250/- Crores. Execution and registration of the lease deed would be done only after a minimum payment of 20% of premium payment of one year lease rent in advance. The lessee would have to complete the construction of minimum 15% of the permissible area within a period of 3 years and complete the project in phases within 5 years. The residential and commercial development/construction, however, could be completed in phases within 7 years. Under the general terms and conditions, the lessee could sub-lease the sports and other facilities and institutional activities with prior approval of NOIDA. The lessee was also given the right to sub-divide the allotted plot into suitable smaller plots as per the planning norms of NOIDA only for the area available for residential & commercial use. It was also provided that the area of each sub-divided plot should not be less than 8,000 Sq.mtrs.
In this context, it would also be appropriate to refer to the averments made in the counter affidavit filed by NOIDA and the private respondent-M/S. Lotus Green Constructions Pvt. Ltd. It has been pointed out by NOIDA that many private builders who did not possess the required criteria for selection under the bid process had filed writ petitions to stall the bid process. It has also been stated that the second prayer made by the petitioner suggests that this PIL has been filed at the instance of a builder who wants an amendment in the Scheme that instead of a composite area of 12,00,000 Sq. Mtrs., tenders be issued for smaller areas. According to NOIDA small builders could also unite and form a consortium to file their bids, as in the case of M/s. Lotus Green Construction Pvt. Ltd., which has been awarded the tender. In the counter affidavit filed by private respondent No.3, it has been stated that NOIDA had issued the acceptance letter dated 7 July 2014 to it and thereafter on 10 September 2014 NOIDA also issued allotment-cum-acceptance letter in its favour for development of SPORTS CITY in Sector-150. The private respondent also paid Rs.465.60/- Crores towards 20% of the total lease premium pursuant to which lease deeds have been executed in favour of the private respondent and two other members of the consortium on 19 December 2014 for an area ad measuring 80000 Sq. Mts. out of the total 1200000 Sp.Mts. Thereafter, the possession letters were also issued by NOIDA on 24 December 2014.
What NOIDA and private respondent No.3 have also stated in their counter-affidavits is that paragraph 5.9.3 of the the NOIDA Master Plan 2031, enabled NOIDA to issue the impugned Scheme as it makes a provision for floating the SPORTS CITY Scheme which should have related residential and commercial facilities.
The relevant portion of paragraph 5.9.3 of NOIDA Master Plan is as follows:-
"5.9.3.........Sports-city may have the provision of following Sports and related facilities, residential, commercial and other facilities as per the specific requirement decided by the Authority for a particular project or scheme.
..................
The Sport-city projects shall be developed as an Integrated Mini-Township with all modern and world class sports and other related facilites. Minimum 70% of the total area would be utilized for sports activities, Institutional and other facilities, open spaces and other recreational activities. Noida Authority will determine the land use pattern, permissible activities, planning norms and other regulations as required time to time for the development of the Sport-city projects."
Thus, not only is the interest of smaller parties taken into consideration as the tender permits them to form a consortium, but even otherwise, such an issue could have been raised by private builders. The petitioner, who claims to be merely a resident of an adjoining district, can possibly have no interest in seeking the quashing of the tender notice or for amending it for the benefit of small bidders. The claim of the petitioner that the tender notice should be modified so that it may generate more money or that it has been designed for the convenience of a particular bidder is without any basis. It is for NOIDA to consider in what manner the SPORTS CITY has to be developed. The Master Plan itself permits it to have a provision for SPORTS CITY with sports and related facilities like residential and commercial facilities as per the specific requirements to be decided by NOIDA. The scope of interference in such matters is very limited and in any case, it would not be appropriate to examine this issue at the instance of the present petitioner. The Supreme Court in Balwant Singh Chaufal (Supra) observed that the Court should not only prima facie be satisfied about the correctness of the contents before entertaining a PIL but should also see that substantial public interest is involved. In Duttaraj Nathuji Thaware (Supra) the Supreme Court emphasized that there must be real and genuine public interest involved in the litigation and not merely an adventure of a knight errant borne out of wishful thinking and only a person acting bona fide and having sufficient interest in the proceedings of public interest litigation will alone have a locus standi to approach the Court and not for any oblique consideration.
The project undertaken by NOIDA is a public project for development of Sports City in NOIDA. The tender in favour of private respondent was accepted and has already been finalized in July 2014 and after deposit of Rs.465.60/- Crores towards 20% of the total lease premium, the Lease Deeds have also been executed in favour of the private respondent and two other members of the consortium.
We are more than satisfied from what has been stated that this petition is not a genuine public interest litigation. This is not a bonafide petition and it appears that the petitioner has been set up by certain interested parties for oblique considerations.
Thus, for all the reasons stated above, this public interest litigation is dismissed.
Order Date :- 19.3.2015 NSC (Dilip Gupta, J.) (Vinod Kumar Misra, J.)