Punjab-Haryana High Court
Bareja Automobiles Pvt. Ltd vs State Of Haryana And Others on 6 February, 2012
Author: Hemant Gupta
Bench: Hemant Gupta, A.N.Jindal
C.W.P. No.2297 of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.W.P.No.2297 of 2007 (O&M)
Bareja Automobiles Pvt. Ltd. ...Petitioner
Versus
State of Haryana and others ...Respondents
Present: Mr. Arun Palli, Sr. Advocate with
Mr. Tushar Sharma, Advocate
for the petitioner.
Mr. Aman Chaudhary, Addl. A.G. Haryana
for respondent No.1.
Mr. Manish Bansal, Advocate
for respondents No.2 and 3.
Mr. Ashwani Chopra, Sr. Advocate with
Ms. Devki Anand, Advocate and
Mr. Sanjay Malhotra, Advocate
for respondents No.4 to 8, 12, 13, 15, 17 and 21.
Mr. B.S. Rana, Advocate
for respondent No.10.
Mr. I.P. Singh, Advocate
for respondent No.14.
Mr. Deepak Sibal, Advocate
for respondent No. 18.
Mr. Hemant Bassi, Advocate
for respondent No.19.
Mr. Ashok Jindal, Advocate
for respondent No.20.
CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE A.N.JINDAL
HEMANT GUPTA, J.
Challenge in the present present writ petition is to the allotment of institutional plots advertised for sale by Haryana Urban Development Authority (for short 'the HUDA'), an authority constituted under Haryana Urban Development Authority Act, 1977 (for short 'the Act') in Sectors 20-A & 20-B, Faridabad. Similar is the challenge in CWP Nos.3821 of C.W.P. No.2297 of 2007 2 2008 & 14643 of 2008.
Though the challenge in all the writ petitions is common i.e. allotment of plots to private respondents, but in CWP No.2297 of 2007, the petitioner has also challenged the advertisement (Annexure P-17) inviting offers for allotment of plots in a fixed time and claims right of allotment of plot on the basis of Scheme (Annexure P-2), whereby such plots were advertised for sale on 'first come first served' on on-going basis.
Section 15 of the Act empowers the HUDA to dispose of the land in such a manner and subject to such terms, as it considers expedient for securing development of the area. The procedure for sale or lease of land/building by allotment is mentioned in Regulations 3 & 5 of Haryana Urban Development (Disposal of Land and Building) Regulation, 1978 (for short 'the Regulation') framed under the Act. HUDA is competent to dispose of its land or building by way of sale or lease either by allotment or by auction, which may be by open bid or by inviting tenders. It is Regulation 5, which prescribes the procedure for sale.
Initially, HUDA invited applications to allot "freehold institutional plots for Corporate Offices, Research &Development Centres, Corporate Towers and Staff Training Institutes" in Sectors 20-A and 20-B, Faridabad in the year 2004. The allotments were to be made on an on-going "first come first served" basis. There were plots for Government Organisations as well as for Private/Non-Government Organisations contemplating seperate rates for Government Organisations and for Private/Non-Government Organisations. In terms of such process of sale, it appears that only 16 applications were received. C.W.P. No.2297 of 2007 3 Thereafter, another advertisement was published in respect of the same plots, which were part of the earlier process of adertisement, but with stipulation that the booking of these plots commences on 10.02.2006 and closes on 10.03.2006. There was marginal increase in the cost of the plots as well. The relevant extract from the subsequent advertisement reads as under:
xxx xxx xxx
ELIGIBILITY:
Govt. Organization/Departments or the State Govt./Govt. of
India/Boards and Corporations of (not eligible) controller by the State and Central Govt. as well as Non-Govt./Private Companies/Organizations are eligible to supply. PERMISSIBLE USES:
1. Corporate Offices;
2. Research & Development Centres;
3. Staff Education & Training Centres;
4. Offices of Professional Groups, Associations or Societies not engaged in Commecial/Manufacturing activities;
xxx xxx xxx
Category of No. of Plots No. of plots Rate per sq. Earnest
plots/site in for Govt. for Mtrs. (in mony @
For For
Mtrs. Organizatio private/Non Rs.) 10% of the
private/Non private/Non
ns -Govt. total
For Govt. -Govt. -Govt.
Organisatio tentative
Organizatio Organizatio Organizatio
ns cost (in fig.)
ns ns ns
For Govt.
Organizatio
ns
Sector 20-A
2 acres 6 6 4,500/- 5,625/- 35,55,000/- 44,43,750/-
(93.76x80)
1 acre
10 10 4,500/- 5,625/- 18,00,000/- 22,50,000/-
(50x80)
½ acre
(30x60) 2 2 4,500/- 5,625/- 8,10,000/- 10,12,500/-
¼ acre
(20x40)
16 16 4,500/- 5,625/- 3,60,000/- 4,50,000/-
C.W.P. No.2297 of 2007 4
Category of No. of Plots No. of plots Rate per sq. Earnest
plots/site in for Govt. for Mtrs. (in mony @
For For
Mtrs. Organizatio private/Non Rs.) 10% of the
private/Non private/Non
ns -Govt. total
For Govt. -Govt. -Govt.
Organisatio tentative
Organizatio Organizatio Organizatio
ns cost (in fig.)
ns ns ns
For Govt.
Organizatio
ns
Sector 20-B
2 acres 6 6 4,500/- 5,625/- 36,00,000/- 45,00,000/-
(8000
sq.mtr.)
1 acre
(50x80) 8 8 4,500/- 5,625/- 18,00,000/- 22,50,000/-
½ acre 1 1 4,500/- 5,625/- 9,00,000/- 11,25,000/-
(2000 sq.)
¼ acre
5 5 4,500/- 5,625/- 4,50,000/- 5,62,000/-
(20x50)
In terms of such advertisement, as many as 160 applications were received. Vide communication dated 13.07.2006 (Annexure P-13) inverview of all such applicants desirous to seek institutional plots were fixed on 20.07.2006. After such interview of all the applicants including the petitioners, the list of 33 successful applicants were shortlisted and a draw for allotment of institutional plots was held on 28.09.2006 alloting plot to each of the shortlisted applicants. Thereafter, the earnest money deposited by the petitioner was refunded on 03.10.2006.
At this stage, it may be noticed that the petitioner in CWP No.2297 of 2007 i.e. Bareja Auto Mobiles Pvt. Ltd. has applied for allotment of 1/4 acre (800 sq. Meters) plot in Sector 20-A, Faridabad for opening a training institute which shall serve not only the area of Faridabad, but also the adjoining areas like Noida and New Delhi etc., as the petitioner-company has faced difficulties in finding the trained manpower in the field of two wheelers, reparing and servicing. The object of the petitioner-company is to train the local roadside C.W.P. No.2297 of 2007 5 mechanics/local gaurage owners and their employees to know about the new advanced techniques of 4-Stroke engine, so that they could give satisfactory services to their valued customers. The petitioner has authorized dealership of TVS Two Wheeler and has an experience of more than 7 years in the field of trading and service. The petitioner has challenged the allotment of plots to the successful applicants alleging it to be arbitrary and discriminatory. It is alleged that the authorities have mismanaged, manipulated and misconstrued the entire allotment process. It is also alleged that the allotment in question smacks of malafides and is palpably erroneous and arbitrary.
The petitioner in CWP No.3821 of 2008 i.e. Career Launcher (I) Ltd. has applied for allotment of 1 acre (4000 sq. meters) plot in Sector 20-A, Faridabad. In the application form, the purpose of land use was mentioned as "Corporate Office". But at the time of interview, the petitioner specifically mentioned that the petitioner requires the plot for use as its Corporate Office and Content Development Centre.
The petitioner in CWP No.14643 of 2008 i.e. M/s RSG Educational & Charitable Society (Regd.), who claims to be engaged in educational activities as well as charitable activities, has applied for allotment of 1/4 acre (20x40) plot in Sector 20-A, Faridabad for the purpose of staff educational and training centre as well as Corporate Office.
In these writ petitions, the writ petitioners have challenged the allotments being arbitrary, inter alia, for the reason that the allotments have been made to the ineligible applicants without framing proper guidelines and arbitrary recommendations.
C.W.P. No.2297 of 2007 6
All the applications were considered by a Committee consisting of the Administrator, HUDA, Faridabad; the Deputy Commissioner, Faridabad; the Estate Officer, Faridabad and; the District Town Planner, Faridabad. The minutes of such "high-powered committee" has been produced by Mr. Manish Bansal, learned counsel representing HUDA. The minutes in respect of the petitioners read as under:
CWP No.2297of 2007 Interview held on 20.07.2006 Sr.No. Particulars of the Remarks The applicant recommendatio Grading of the institution during n of committee interview after completion of all interview
165. Kanwar Pal The applicant appeared before committee, Not Bareja, Director of the applicant wants to impart motor training Recommended Bareja Automobile to mechanics and other customers, which is (P) Ltd., Sushma not permissible under the scheme, the Place, Sector 20-B, applicant is graded in 'c' grade.
Ajronda Chowk, Faridabad.
CWP No.3821 of 2008
Interview held on 21.07.2006
Sr.No. Particulars of the Remarks The
applicant recommendatio
Grading of the institution during interview n of committee after completion of all interview
10. Nikhil Mahajan, The applicant appeared before the Not Director of Career Committee. The applicant is running a Recommended Launcher India coaching centre for entrance examination Ltd., B-52, Okhla and proposes to have content development Industrial Area, and faculty training centre. The Committee New Delhi. observed the site is likely to be misused for running coaching centre. The Committee therefore rated company in 'c' grade.
CWP No. 14643 of 2008 Interview held on 11.08.2006 C.W.P. No.2297 of 2007 7 Sr.No. Particulars of the Remarks The applicant recommendatio
Grading of the institution during interview n of committee after completion of all interview
16. Rajiv K. Chopra, The applicant appeared before the Not President, RSG Committee. The applicant wants to start recommended. Educational & staff Education and Training Institute. The Charitable Society applicant has failed to convince the (Regd.) C-75, committee that why such Institute is being Sector 33, Noida established at Faridabad, where he does not have any existing Institute. Both institutes (1/4 acre) of sister society of the applicant are located at Ghaziabad (UP) & Gurgaon. There are stated to be only seven employee with the applicant society, how the training of such small number of employees require such a large space is beyond comprehension of the committee. From the interview the committee can safely conclude that the purpose appears to be purely speculative.
The committee therefore rated the Society in 'c' grade.
Learned counsel for the petitioner(s) have vehemently argued that the process of allotment of plots is wholly arbitrary and actuated by favourtism and smacks of malafides. It is further contended that though the Hon'ble Supreme Court in New India Public School and others Vs. HUDA and others AIR 1996 SC 3458 has issued directions to allot plots other than by public auction by framing guidelines and duly publishing the same, but still the HUDA neither framed guidelines nor published any criteria. It is contended that vide the advertisement, in question, the institutional plots were advertised at Gurgaon also. A Division Bench of this Court has set aside the allotments made at Gurgaon vide its judgment rendered in Delhi Assam Roadways Corporation Ltd. Vs. The Haryana Urban Development Authority and others 2008 (3) RCR (Civil) 389. Pending appeal against the said judgment, the HUDA allotted plot to the aggrieved writ petitioners, which led to disposal of the special leave petition before the Hon'ble Supreme Court. The Hon'ble Supreme Court C.W.P. No.2297 of 2007 8 has observed that no further dispute, as such, survives so far as the allotments made in favour of other respondents are concerned. The order passed by this Court was modified only to that extent that the allotments already made in favour of the other respondents was not interfered with. It is also pointed out that subsequently another Division Bench of this Court in Babbar Bhan and another Vs. State of Haryana and others (CWP No.2677 of 2008 decided on 12.11.2009) has set aside the allotments of industrial plots at Bhiwani relying upon the judgments of Hon'ble Supreme Court in New India Public School's case (supra) and of this Court in Delhi Assam Roadways Corporation Ltd. case (supra). Still later, another Division Bench of this Court in Horizon Rubber Products Ltd. and others Vs. State of Haryana and others (CWP No.10319 of 2006 and other connected matters, decided on 19.04.2011) has set aside the allotment of indusrial plots in Farbidabad and Gurgaon again relying upon the judgments in New India Public School's and Delhi Assam Roadways Corporation Ltd. cases (supra). However, the Court directed that all such allottees, who have been offered allotments, be allowed to retain the same on payment of market price of the industrial plots calculated with reference to the date of allotment.
Learned counsel for the petitioner(s) further argued that the action of the respondents in alloting plots is in violation of the orders of the Hon'ble Supreme Court. Apart from such patent illegality, the process of consideration by the respondents is vitiated. Such process is totally arbitrary, whimsical apart from being malafide. Learned counsel for the petitioner(s) have also relied upon a judgment of Hon'ble Supreme Court reported as Union Carbide Corporation etc. Vs. Union of India C.W.P. No.2297 of 2007 9 etc. AIR 1992 SC 248 to controvert the stand of the respondents that there is any estoppel, if the petitioners dispute the process of allotment.
Mr. Palli, learned Senior counsel for the petitioner in CWP No.2297 of 2007 has made specific reference to the applications submitted by respondent Nos.4, 5, 7 & 10. In respect of respondent No.5, it is pointed out that the Company was incorporated on 03.03.2006 i.e. a week or so before the closing date of the Scheme, whereas in respect of respondent Nos.4, 7 & 10 it is pointed out that such applicant-companies have not disclosed their net-worth or financial capacity, which is apparent from the summary of minutes available at Sr.Nos.142, 144 & 148 of page Nos.271-272 of the paper book, but still plots have been allotted to them.
Similarly, Mr. D.K.Sharma, learned counsel for the petitioner in CWP No.3821 of 2008 has referred to the minutes recorded in respect of many of the successful applicants, pointing out that the process of consideration is wholly arbitrary, unreasonable and does not satisfy the judicial conscious.
On the other hand, learned counsel for the respondent(s) have contended that the petitioners are estopped to challenge the short-listing process, as the petitioners have willingly, without any objection, have participated in the interview. Once they have remained unsuccessful, they have chosen to dispute the short-listing process. Reliance is placed upon the Division Bench jugments of this Court in Anil Kumar Vs. State of Haryana and others 2009 (1) RCR (Civil) 559 and U.G.Hospital Pvt. Ltd. Vs. State of Haryana and others 2009 (2) RCR (Civil) 162. It is also argued that the writ petitions have been filed after gross-delay and latches, therefore, the petitioners cannot be permitted to dispute the short- C.W.P. No.2297 of 2007 10 listing process. It is also argued that in terms of the judgment in Harsh Dhingra Vs. State of Haryana AIR 2001 SC 3795, the orders in respect of plots allotted cannot be set aside, as there is no allegaton of any mala fide exercise of powers by the authorities in favour of any of the applicants nor of any misrepresentation. It is also argued that this Court will not act, as a Court of appeal over the recommendations of the High Power Committee, which has considered the respective credentials of each of the applicants before short-listing the candidates.
It is pointed out that the petitioner in CWP No.2297 of 2007 i.e. Bareja Auto Mobiles Pvt. Ltd. has applied for allotment of plot for opening a training institute, as the petitioner-company has faced difficulties in finding the trained manpower in the field of two wheelers, repairing and servicing. The activity proposed to be carried out is not permissible in an institutional plot under the guise of staff education and training centre. The staff education and training centre is for training of in-house staff and their training and not of roadside mechanics. Therefore, the petitioner has been rightly excluded from the consideration.
In respect of petitioner in CWP No.3821 of 2008 i.e. Career Launcher (I) Ltd., it is argued that the petitioner is known as an organisation for preparing the students for competitive examinations. Though the applicant has initially applied for allotment of plot for its Corporate Office, but during the course of interview, the petitioner expressed its intention to run a coaching centre for entrance examination apart from Content Development Centre. The Committee has found that site is likely to be misused for running coaching centre. It is agued that C.W.P. No.2297 of 2007 11 the activities proposed by the petitioner is a commercial activity and not for training of in-house staff.
In respect of petitioner in CWP No.14643 of 2008 i.e. M/s RSG Educational & Charitable Society (Regd.), who has applied for allotment plot for the purpose of staff educational and training centre as well as Corporate Office, it was noticed that the petitioner has no activity at Faridabad, whereas its institutes are located at Ghaziabad (UP) and Gurgaon. There was only seven employee with the applicant society and the requirement of such a large space is beyond comprehension and the purpose for allotment of plot appears to be purely speculative.
Mr. Saini, learned counsel for some of the respondents, has argued that the criteria for allotment of plots could be made out from the broucher and the information sought in the application form. An application form was required to disclose the annual turnover and the purpose for which plot is sought. Therefore, such was the crieteria or the guidelines for determining the suitability of the applicant for allotment of an institutional plot.
Though the learned counsel for the petitioner has vehemently argued that it has got a vested right for allotment of plot in view of the earlier policy contemplating allotment on 'First Come First Served' basis, but we find that by submitting an application in response of such advertisement, the petitioner does not get any vested right for allotment of a plot. HUDA is competent to change its policy or cancel the advertisement at any stage. Prima-facie, we have reservation of the leglity of such open ended scheme as well. The petitioner has attached communication dated 22.03.2006 (Annexure P-11), whereby the C.W.P. No.2297 of 2007 12 petitioner was called upon to make up deficiency in the earnest money. There is no reference to the advertisement in the said communication. The petitioner made up the deficieny in the earnest money even before the last date of submitting the applications came to close as per the advertisement inviting application for the plots as per the revised scheme. Therefore, the petitioner cannot be permitted to dispute the subsequent advertisement. It is not the case of the petitioner that he was not aware of the advertisement. The petitioner does not get any vested right by only submitting an application. We do not find any merit in the claim of the petitioner.
The Hon'ble Supreme Court in New India Public School's case (supra) has approved the Division Bench judgment of this Court in Seven Seas Educational Society Vs. The Haryana Urban Development Authority (1996-2) PLR 17. In the said case, the following directions, which were relevant at the present stage, were issued:
"38. However, keeping in view the interests of students, teachers and some amount spent by the respondents, even though at their own risk and responsibility but showing the magnanimity of law, some arrangements can be made for the protection of the interests of all concerned. The appeals are, therefore, accepted by upholding the judgment of the learned Single Judge by which it has been held that the whole of the action of the respondents in making allotments was illegal, arbitrary and capricious and modify the same to the extent by which the allotments made in favour of private respondents were not quashed and all the allotments made in favour of private respondents are hereby quashed. The writ petitions filed by the appellants shall be deemed to be disposed of with the following directions:
(a) All the school sites required to be allotted or sold shall be notified afresh strictly in accordance with the provisions of the Act and the Regulations. All the petitioners, the private respondents and all other eligible persons shall be permitted to participate in th process of sale or allotment;C.W.P. No.2297 of 2007 13
(b) preference shall be given for sale or allotment by open auction;
(c) In case, the respondent authority decides not to resort to the method of open auction, it may invite applications in accordance with the provisions of Regulation 5 and on the prescribed proforma;
(d) The tentative price/premium of each site shall be pre-
determined and proportionate earnest money received alongwith the applications, if filed;
(e) appropriate reasonable uniform criterion for making the allotments, if so desired, be notified in advance;
xxx xxx"
The Hon'ble Supreme Court in New India Public School's case (supra) accepted the directions given by the Division Bench and issued directions in respect of determining the market value of the sites. The Hon'ble Supreme Court interpreted Section 15 of the Act as well as Regulations 3 & 5 of the abovesaid Regulations and returned the following finding:
"5. 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 the 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 relevantion should be pre-determined 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, therefore, has rightly pointed out that in the absence of such statutory regulations exercise of discretionary power to allot sites to private institutions or C.W.P. No.2297 of 2007 14 persons was not correct in law."
After returning such finding, the Hon'ble Supreme Court issued the following directions:
"7. .....The HUDA also is directed to frame an appropriate scheme for allotment of the sites under discretionary power or other mode otherwise than by public auction and then place the scheme bfore the first Court of the High Court and obtain approval of the validity and correctness of the scheme and would thereafter proceed with the disposal of the properties in future. As far as allotment to the petitioners, viz., Ajay Memorial School, Ashok Trehan Memorial Charitable Trust and Manav Mangal Society and Lt. Col. Y.P.Mahindru, in these special leave petitions is concerned, the same will be subject to the above directions and in the event of their non- acceptance, the properties should be put to public auction alongwith other sites and buildings. The plots allotted to the rest of the petitioners other than those cases where notices were issued, will be subject to the directions issued by the Division Bench. The other unallotted plots also should be put to public auction as ordered by the Division Bench."
We find that the following issues are of great public importance and are arising frequently and, therefore, require opinion of the Larger Bench:
1. Whether a scheme for allotment of sites by mode otherwise than public auction is required to be published separately by way of regulations or can be culled down from the broucher?
2. Whether the criteria of staff education & training centre relates to training of in-house staff or training to the third persons in view of intention made know in the subsequent clause, when the commercial and manufacturing activities are not permissible in the institutional site?
3. Whether the principle of promissory estoppel can be invoked against the petitioners having participated in the selection process and which of the judgment lays down correct principle of law i.e. Delhi Assam Roadways Corporation Ltd. case (supra) on the one hand and Anil Kumar and C.W.P. No.2297 of 2007 15 U.G.Hospital Pvt. Ltd. cases (supra) on the other?
4. Whether this Court in exercise of powers of judicial review, can take a different view regarding suitability of applicants for allotment of plots in the absence of any proof of allegations of mala fide, favouritism or nepotism?
Let the paper-book be placed before Hon'ble the Chief Justice to constitute a Larger Bench.
Learned counsel for the parties in CWP Nos. 3821 of 2008 & 14643 of 2008 are prmitted to assist the Larger Bench on the questions of law, mentioned above.
(HEMANT GUPTA)
JUDGE
06.02.2012 (A.N.JINDAL)
Vimal JUDGE