Punjab-Haryana High Court
Jai Narayan Jakhar vs Haryana Urban Development Authority ... on 25 August, 2014
Author: Hemant Gupta
Bench: Hemant Gupta
CWP No.9079 of 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of decision:25.8.2014
1. CWP No.9079 of 2013(O&M)
Jai Narayan Jakhar ....Petitioner
VERSUS
Haryana Urban Development Authority and others
.....Respondents
2. CWP No.19010 of 2013(O&M)
Col. Hari Singh ....Petitioner
VERSUS
Haryana Urban Development Authority and others
.....Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE KULDIP SINGH
1. Whether Reporters of local papers may be allowed to see the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
*****
Present: Mr. Vivek Khatri, Advocate for the petitioner.
Mr. Rahul Garg, Advocate for
Mr. Sidharth Batra, Advocate for respondent Nos.1 and 3.
Mr. Pardeep Singh Poonia, Additional Advocate General,
Haryana for respondent No.2.
Mr. Anurag Jain, Advocate for respondents No.6, 7, 11, 13, 15,
19, 20, 29, 30, 36, 40, 42 and 43.
Ms. Dimple Jain, Advocate for respondents No.8 and 31.
Mr. Sandeep Moudgil, Advocate for respondent Nos.9,16, 24,
25, 27, 34, 39 and 44.
Mr. B.S. Giri, Advocate for respondent No.21.
Mr. J.P. Ahlawat, Advocate for respondent No.23.
*****
GULATI DIWAKER
2014.08.28 16:52
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integrity of this document
CWP No.9079 of 2013 2
HEMANT GUPTA, J.(Oral)
This order shall dispose of abovementioned two writ petitions i.e. CWP No.9079 of 2013 and CWP No.19010 of 2013. In both the writ petitions, the challenge is to the allotment of 43 plots of 1/8 acre of Industrial Plots i.e. 450 square meter, in Sector 27-28, Hisar vide memo dated 03.08.2007 against the advertised 3 plots as well as for quashing of the order dated 15.04.2013 whereby the candidature of the petitioners was ignored for allotment of a plot, in terms of the directions of this Court.
The brief facts leading to the present writ petitions are that on 03.08.2007, the respondent-Haryana Urban Development Authority (for short 'HUDA') published an advertisement inviting applications for freehold industrial plots at different Industrial Areas including at Hisar. In respect of Hisar, the number of plots, their size and the rate on which, these plots were to be allotted were mentioned in brochure. The relevant extract from the brochure is to the following effect:-
Name of No. of Plots Size of Plots Rate per sq. Earnest Industrial (in sq. mtr. Money in Estate mtr./Acre) Rupees xx xx xx xx xx Hisar 05 2 Acre 1100/- 9,02,000/-
01 1.5 Acre 6,60,000/-
01 1 Acre 4,51,000/-
01 ½ Acre 2,25,500/-
03 1/8 Acre 49,500/-
xx xx xx xx xx The advertisement and the brochure also stipulated that preference shall be given to the certain categories of entrepreneurs. The advertisement also provided for procedure for allotment. The relevant extract from the advertisement reads as under:-GULATI DIWAKER 2014.08.28 16:52 I attest to the accuracy and integrity of this document CWP No.9079 of 2013 3
a) Ex-Servicemen
b) Women Entrepreneurs
c) Unemployed Engineering Graduates/Polytechnic/I.T.I. trained candidates
d) Oustees of that Sector
e) Expansion/Shifting of existing units.
"Procedure for Allotment
- Mere submission of an application would not necessarily, entitle an application for allotment. Allotment of plot will be after due assessment of the application/project report and on the basis of individual merits/financial capabilities of entrepreneurs. The applications received shall be scrutinized and applicants interviewed by the Allotment Committee, and thereafter, the allotment shall be made in favour of the recommendee with approval of the Competent Authority."
In pursuance of such advertisement, the petitioners applied for allotment of 450 square meter plots in the category of Ex-Serviceman and by appending project report. The petitioners were called for interview vide communication dated 10.09.2007. Later, the petitioner-Jai Narayan Jakhar was informed on 20.04.2009 that 43 plots have been allotted of 450 square meter out of which Ex-Servicemen are none. The Woman Entrepreneurs are 4, Unemployed Engineering Graduates/Polytechnic/ITI Trained Candidates are 2, Oustees of that Sector are none, and 12 are in the category of Expansion/Shifting of existing units. 25 plots were allotted to General Category.
The petitioner-Jai Narayan Jakhar and Col. Hari Singh filed separate writ petitions bearing CWP No.7636 of 2009 and CWP No.12444 of 2008, respectively, before this Court. In the said writ petitions, this Court passed an interim order on 26.11.2010. The order reads as under:-
"Arguments concluded on both sides. At this stage, learned counsel for the allottees has pointed out that a number of plots of 1.8 acre size are GULATI DIWAKER 2014.08.28 16:52 I attest to the accuracy and integrity of this document CWP No.9079 of 2013 4 available with HUDA and even petitioners can be accommodated against the available plots. Availability of the plots is not disputed by the learned counsel appearing for HUDA. Before the judgment is reserved, it is deemed appropriate that learned counsel for HUDA seek instructions regarding the available plots and also whether the petitioners in all pending petitions as on date can be considered for allotment or not. Let the instructions be reported on the next date of hearing. If no instructions are reported, the matter shall be decided on merits. List on 13.12.2010.
Copy of this order be placed on each connected files."
Subsequently, on 04.08.2011, another order was passed by this Court in the abovesaid writ petitions. The order reads as under:-
"Counsel for the petitioner asserts that though three industrial plots measuring 1/8 acres were advertised in Sector 27 and 28 at Hisar. A total number of 43 plots were allotted. In the absence of any cogent explanation for increase in the number of plots, this Court is prima facie satisfied that members of the committee consisting of Mr. T.K. Sharma, IAS, Mr. R.P. Gupta, Administrator, HUDA, Hisar, Mr. T.C. Gupta, Chief Administrator, Panchkula and Mr. Ashok Kumar Gupta, Representative of Director of Industries, may be guilty of fraudulent allotment of plots of public property. A fundamental rule governing allotments of public properties is that only such plots can be allotted/auctioned as are advertised.
At this stage counsel for the HUDA, prays for time to re-consider the matter in the light of directions contained in the order dated 26.11.2010. Adjourned to 09.09.2011.
A copy of this order be handed over to counsel for the parties under signatures of the Court Secretary of this Court."
Subsequently, an affidavit was filed on behalf of Sh. R.S. Kharab, IAS, Administrator, HUDA, Hisar. It was asserted therein that a Committee has been constituted as per the Estate Management Procedure (EMP-2005) of HUDA consisting of Chief Administrator, HUDA as Chairman; Administrator HUDA, (HQ); Zonal Administrator Hisar and Director Industries as members. The meeting of the Committee is scheduled GULATI DIWAKER 2014.08.28 16:52 I attest to the accuracy and integrity of this document CWP No.9079 of 2013 5 to be convened on 22.11.2011, in which the cases of the petitioners shall be reconsidered. On the basis of such affidavit this Court passed an order on 09.09.2011. The relevant extract of the order reads as under:-
"In the affidavit, it is stated that a Committee has been constituted which shall convene a meeting on 22.11.2011 at 10.30 A.M. in the Conference Room in HUDA Headquarters at Panchkula to reconsider the case of the petitioner for allotment of a plot. We feel that in view of undertaking given, the present writ petition has become infructuous. We are hopeful that the respondent-HUDA Authorities will not sit on false prestige and will consider the case of the petitioner in a very sympathetic manner and decide the same as per law. The petitioners in all these writ petitions are directed to put in appearance before the concerned Committee on the date and time mentioned above.
Disposed of."
Consequent to the consideration of the petitioners for allotment of a plot, separate communications dated 15.04.2013 were addressed to the petitioners that application of the petitioners for industrial plots are rejected. It is, thereafter, the petitioners had invoked the writ jurisdiction of this Court challenging the action of the respondents in allotting plots to 43 applicants in arbitrary manner. It is also alleged that as against 3 plots advertised, 43 plots have been allotted which amounts to distribution of largesse of giving public property without advertisement after following due procedure in conformity of the Article 14 of the Constitution.
On the other hand, Mr. Garg, learned counsel for the respondents, has produced the record of the allotment. It may be noticed that, as per the record produced, as against 3 plots advertised, there were 84 applications for such plots. The Allotment Committee opined that all these plots, converted out of two plots bearing No.3 and 45 after due approval be allotted. Plot No.3 was bifurcated into 67 smaller plots of 1/8 acre category GULATI DIWAKER 2014.08.28 16:52 I attest to the accuracy and integrity of this document CWP No.9079 of 2013 6 and plot No.45 was divided into 49 plots of 1/8 aces and 27 plots of 1/4 acre category. The Committee recorded the following minutes:-
".....The Committee was of the unanimous opinion that all these plots should also be allotted to deserving applicants in addition to the plots already available so that the industrial activity picks up in this area which falls in Medium Potential Zone. This will also facilitate quicker allotment as the numbers of applications are much more than the number of advertised plots. The old demarcation plan of these plots was seen by the Committee and it was though appropriate to approve the recommendations of Administrator, HUDA Hisar for re-planning of the area of plot No.45 (old site/pig iron plan) so that not only some good big Projects are allotted land but sufficient number of smaller entrepreneurs can also be given chance to set up Industries. With this in mind, the Committee recommends that the new lay out-cum-demarcation plan which proposes carving out of additional plots of one acre and half acre category on plot no.45 may be approved. The final availability of plots has been conveyed by the Admn (H) vide his letter no.1769, dated 20.02.08 as under:
Sr. Category Vacant Plot Nos. Total Vacant
No. Plots
1 2 Acre 175 to 178 130 (Reserved for 6
NRI)-179
2 1.5 Acre 43 1
3 1.00 Acre 167 (Reserved for NRI)- 171, 181 12
to 190
4 ½ Acre 55 (Reserved for NRI)- 191 to 8
196, 42
5 1/8 Acre 160 (Constructed up to DPC) 161, 71
162, 164, 197 to 263
TOTAL 98
Since the plots are lying vacant for a long time and no application from NRI is pending. It was decided to allot these plots also to General Category applicants."
The Committee further observed that the applicants were interviewed on 26.09.2007 and 27.09.2007. The Committee is said to have examined the project profile on the following factors:-
"i) The profile of the applicant, its past financial performance (in case of existing unit).
ii) No. of employees/ workers presently working in case of existing unit and the potential employment generation in the proposed unit.
iii) Total investment in the project.GULATI DIWAKER 2014.08.28 16:52 I attest to the accuracy and integrity of this document CWP No.9079 of 2013 7
iv) Sources of the finances and technical know how of the applicant.
v) Financial capability of the applicant to implement the project.
vii) The State Govt. policies and the relevant provisions laid down in the EMP-2005/ observance of related formalities."
On the basis of such projected criteria, the allotments were made to 43 persons in 450 square meter category. A perusal of the minutes shows that the names are arranged in alphabetical manner. Learned counsel for the respondent-HUDA submitted that marks were given to individual applicants but the list was prepared alphabetically. However, no such record of preparation of merit or the comparative merit has been produced before this Court.
Mr. Garg argued that 67 plots of 450 square meter were available. The 79 applicants were present who were interviewed. The Committee decided to allot plots to 43 applicants after concluding the remaining entrepreneurs to be not fit enough for the allotment of plots. Thus, it is contended that petitioners were not fit for the allotment of plots, therefore, they cannot raise a grievance in respect of allotment to the applicants who were found suitable. It is also contended that no right of the petitioners has been infringed by allotting plots to 43 applicants as the process adopted by the respondents was fair and reasonable.
However, on behalf of private respondents, it was vehemently argued that there is no allegation of any fraud or collusion with the official respondents. They are applicants for allotment of plots and have been found suitable by the Committee. After allotment of plots, some of the allottees have raised construction over the plots, installed machinery at considerable cost and are now running industrial units and interference at this stage will cause immense financial loss to them.
GULATI DIWAKER 2014.08.28 16:52 I attest to the accuracy and integrity of this document CWP No.9079 of 2013 8
The record produced by Mr. Garg further shows that after the orders were passed by this Court on 09.09.2011, HUDA had evolved that any candidate getting less than 65% marks i.e. less than 42 marks out of 65 shall be considered unfit for allotment of Industrial Plot. The following criteria was prepared which is as under:-
1. Financial Capability 10 Marks
2. Product Capability Skills 15 Marks
3. Ex-Serviceman 03 Marks
4. Woman Entrepreneur 03 Marks Un-employed 03 Marks Engineering/Graduate/Polyclinic/ITI
5. Trained candidates
6. Oustees of that sector 03 Marks
7. Expansion/shifting of Existing units 03 Marks
8. Viva Voce 03 Marks It is also argued that the petitioners have participated in the selection process in the year 2007 and again in the year 2011 after orders were passed by this Court. The petitioners having participated in the selection process are estopped to challenge the allotment of the plots to the private respondents on the basis of doctrine of promissory estoppel.
Learned counsel for the respondents has referred to Estate Management Procedure (EMP-2005) of HUDA framed in pursuance of industrial policy announced by the State Government. A reading of the Estate Management Procedure (EMP-2005) of HUDA shows that apart from category of projects having investment of more than Rs.30 crores, all other allotments are required to be made after inviting applications through advertisement in leading newspaper. The relevant extract from the procedure reads as under:-
"ESTATE MANAGEMENT PROCEDURE (EMP-2005) OF HUDA
1. INTRODUCTION:
xx xx xx xx
2. ALLOTMENT OF PLOTS
GULATI DIWAKER
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integrity of this document
CWP No.9079 of 2013 9
In the Industrial Estate developed by HUDA, the following provisions shall be made.
1)xx xx xx xx
2) The allotment of plots to projects having investment of more than Rs.30 crores shall be made on ongoing basis by committee headed by Principal Secretary Industries and consisting of Director, Industries, Managing Director HSIDC and Managing Director Haryana Financial Corporation & CA, HUDA.
xx xx xx xx
5) xx xx xx xx
For other categories, allotments will be made after inviting applications through advertisements in leading news papers. The allotment will be made by the following committee:-
a) CA, HUDA Chairman
b) Admn, HUDA concerned Member
c) Director of Industries Member
d) Admn, HUDA (HQ's) Member Secretary
Substitution can be made in extreme exigencies with an officer of level of at-least Joint Director, in case of D.I., Haryana, and Administrator, DA, Panchkula, in case of Admn, HUDA (HQ).
4. Preference will be given to the following categories of entrepreneurs.
a. Ex-Servicemen
b. Women
c. Unemployed Engineering Graduates/polytechnic/ITI trained
candidates.
d. Expansion/shifting of existing units.
e. Oustees on account of acquisition of land for that particular Estate
within the terms & conditions of EMP."
We find that the entire action of the respondents in allotting plots to 43 applicants as against 3 advertised plots cannot be sustained even as per Estate Management Procedure (EMP-2005) of HUDA relied upon by the respondents. It is categorically asserted in EMP-2005 that allotments will be made after inviting applications through advertisement. Since 3 plots were advertised, the allotments could be made only to 3 applicants. Though, there is no condition in the advertisement that number of plots may vary but even after such a condition is read into the advertisement, the variation can GULATI DIWAKER 2014.08.28 16:52 I attest to the accuracy and integrity of this document CWP No.9079 of 2013 10 be of one or two plots but not more than 11 times of the plots advertised. The reasoning given in the minutes is that sufficient number of small entrepreneurs can also be given to chance to set up industries but while seeking approval of the plan, the plots have been allotted only for the reason that plots were lying vacant for a long time. Both the reasons do not warrant dispensation of the requirement of Article 14 of fair play and transparency in the process of distribution of state largesse.
The learned counsel for respondent-HUDA has not produced any record in respect of consideration of each of the applicants keeping in view the factors mentioned in the note prepared by the Administrator (HQ), Member Secretary on 17.04.2008. What has been given to us during the hearing is a summary of project of each of the applicant but how such summary has been assessed by the Committee to determine suitability for the allotment of plots has not been produced before us. In fact it was stated that the record produced is the only record maintained by the HUDA. Therefore, though, the Committee is said to have taken into consideration the project profile of the applicant by following abovementioned factors but the record produced does not show any objective consideration. The action of the respondents in allotting plots to 43 applicants, thus, shows complete lack of objectivity, transparency, rationality but appears to be in complete contradiction to the fairness. It appears that the names have been picked up on a consideration which is other than merit.
In (1996) 6 SCC 530 titled as Common Cause, A Registered Society (Petrol pumps matter) v. Union of India, the Hon'ble Supreme Court held that Article 14 does not permit the power to pick and choose arbitrarily out of several persons falling in the same category. A transparent and objective criteria has to be evolved so that choice among the members GULATI DIWAKER 2014.08.28 16:52 I attest to the accuracy and integrity of this document CWP No.9079 of 2013 11 belonging to the same class or category is based on reason, fair play and non-arbitrariness. It was observed as under:-
"24. ... While Article 14 permits a reasonable classification having a rational nexus to the objective sought to be achieved, it does not permit the power to pick and choose arbitrarily out of several persons falling in the same category. A transparent and objective criteria/procedure has to be evolved so that the choice among the members belonging to the same class or category is based on reason, fair play and non-arbitrariness. It is essential to lay down as a matter of policy as to how preferences would be assigned between two persons falling in the same category. If there are two eminent sportsmen in distress and only one petrol pump is available, there should be clear, transparent and objective criteria/procedure to indicate who out of the two is to be preferred. Lack of transparency in the system promotes nepotism and arbitrariness. It is absolutely essential that the entire system should be transparent right from the stage of calling for the applications up to the stage of passing the orders of allotment...."
In the judgment reported as (2011) 5 SCC 29 titled as Akhil Bhartiya Upbhokta Congress v. State of Madhya Pradesh and others, the Hon'ble Supreme Court held that the decision of the State 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. It was observed as under:-
"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 GULATI DIWAKER 2014.08.28 16:52 I attest to the accuracy and integrity of this document CWP No.9079 of 2013 12 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 nepotism violating the soul of the equality clause embodied in Article 14 of the Constitution."
A Constitutional Bench in Natural Resources Allocation, In re, Special Reference No. 1 of 2012, (2012) 10 SCC 1, held that grant of contracts or allotment of land, is to be tested on the touchstone of Article 14 of the Constitution. A State action has to be tested for constitutional infirmities qua Article 14 of the Constitution. The action has to be fair, reasonable, non-discriminatory, transparent, non-capricious, unbiased, without favouritism or nepotism. The Court held to the following effect:-
"107. From a scrutiny of the trend of decisions it is clearly perceivable that the action of the State, whether it relates to distribution of largesse, grant of contracts or allotment of land, is to be tested on the touchstone of Article 14 of the Constitution. A law may not be struck down for being arbitrary without the pointing out of a constitutional infirmity as State of A.P. v. McDowell & Co., (1996) 3 SCC 709 has said. Therefore, a State action has to be tested for constitutional infirmities qua Article 14 of the Constitution. The action has to be fair, reasonable, non-discriminatory, transparent, non-capricious, unbiased, without favouritism or nepotism, in pursuit of promotion of healthy competition and equitable treatment. It should conform to the norms which are rational, informed with reasons and guided by public interest, etc. All these principles are inherent in the GULATI DIWAKER 2014.08.28 16:52 I attest to the accuracy and integrity of this document CWP No.9079 of 2013 13 fundamental conception of Article 14. This is the mandate of Article 14 of the Constitution of India."
A Full Bench of this Court in CWP No.2297 of 2007 titled as Bareja Automobiles Pvt. Ltd v. State of Haryana and others, decided on 17.08.2012 has considered the allotment of plots in the Urban Estates of Haryana. The Full Bench of this Court, inter alia, observed as under:-
"In fact, a perusal of the above judgment would show that what is expected of a public authority is issuance of advertisement incorporating therein conditions of eligibility so as to enable all similarly situated eligible persons, institutions/organizations to participate in the process of allotment, whether by way of auction or otherwise. The Court has recognized the fact that the Government may allot land at a fixed price, but such allotment process must be preceded by a wholesome exercise consistent with Article 14 of the Constitution."
Thus, we find that the action of the official respondents to allot 43 plots as against 3 plots advertised suffered from patent illegality. Even, the process of allotment of three plots is far from fair and transparent in view of the judgment of Hon'ble Supreme Court in Common Cause, A Registered Society (Petrol pumps matter) case (supra); Akhil Bhartiya Upbhokta Congress's case (supra) and Natural Resources Allocation Reference (supra). We find that the petitioners can be said to have been considered only against 3 plots. Even such consideration is arbitrary without any criteria objective or otherwise. If there was subsequent advertisement, the petitioners could apply and therefore, their merit was required to be adjudged keeping in view the applicants in each of the said advertisement. But instead without advertisement, 43 plots have been allotted jeopardizing the right of the petitioners to apply in the successive advertisements for consideration. In each successive advertisement, the suitability of the petitioners has to be considered vis-à-vis the applicants in that advertisement. GULATI DIWAKER 2014.08.28 16:52 I attest to the accuracy and integrity of this document CWP No.9079 of 2013 14
Mr. Moudgil, learned counsel for the respondents referred to question No.3 framed in the Full Bench in the case of Bareja Automobiles Pvt. Ltd's case (supra) i.e. Whether the principle of promissory estoppel can be invoked against the petitioners having participated in the selection process?.
Such argument does not merit any consideration. Though, the petitioners were one of the applicants but they were applicants for allotment of 3 plots alone. Even 3 plots could be allotted on the basis of guidelines which have been noticed by the Committee in its meeting dated 17.04.2008. The manner of consideration has not been brought to our notice. Therefore, the allotment of 3 plots which were advertised and to be allotted by the respondents suffers from the fairness in the process of allotment. The petitioners can be said to estopped to a fact or action, which is professed. But the conditions in the brochure were not followed in the process of allotment of plots. How the doctrine can be applied in respect of a candidate who is not aware of the fact that the conditions in the advertisement and that in the brochure have not been followed.
The doctrine of promissory estoppel can be applied to what is conveyed in the advertisement. In the advertisement, the allotment of plots was said to be after due assessment of the application/project report and on the basis of financial capabilities of the entrepreneurs. However, no record has been produced or maintained as to how the assessment of each individual has been assessed so as to find out the merits of the candidates or their financial capabilities. The grievance of the petitioners is not in respect of the criteria advertised but the manner of applying such criteria for making allotments. In the absence of comparative merits of each of the candidates, it cannot be said that 43 applicants were more suitable than the petitioners. GULATI DIWAKER 2014.08.28 16:52 I attest to the accuracy and integrity of this document CWP No.9079 of 2013 15
Even after the directions of this Court, the criteria framed, as part of post decisional hearing, is to give 10 marks for the financial capability and 15 marks for product capability skills but in respect of each of the preferential categories, 3 marks have been assigned. An Ex-Serviceman may not be a Woman Entrepreneur or Unemployed Engineering Graduate/ Polytechnic/ ITI trained candidate. One can understand if 3 marks are given in alternative but giving 3 marks for each category shows total non- application of mind while fixing criteria for allotment of plots.
In view thereof, we find that the entire process for allotment of plots is tainted, unfair, arbitrary, irrational, illegal and consequently, the allotment of 43 plots is set aside.
At this stage, we may examine another argument of learned counsel for the respondents that the respondents have raised construction and are running industrial units. Somewhat similar situation was examined by Division Bench of this Court in the judgment reported as AIR 1996 P&H 228 titled as Seven Seas Educational Society v. Haryana Urban Development Authority, Panchkula and others which decision was affirmed by the Hon'ble Supreme Court in New India Public School's case (supra). In the aforesaid case, the Division Bench of this Court has found that the school buildings have been constructed where the classes are being conducted. The Court issued multiple directions for allotment of sites after their cancellation and the manner of assessing the value of the construction and other ancillary things. In view of the directions of the Division Bench in the aforesaid case, we direct:-
1. That none of the respondents whose sites have been cancelled by aforesaid judgment shall not make any additions, alterations GULATI DIWAKER 2014.08.28 16:52 I attest to the accuracy and integrity of this document CWP No.9079 of 2013 16 in the super-structures raised but shall be permitted to carry on their normal activities.
2. It shall be open to the respondents to opt whether they would like to shift the plant and machinery to the new location or they would like to surrender the plot along with the plant and machinery. The respondents shall give their option within one month.
3. All the sites, thus available for allotment, shall be notified for disposal in accordance with the provisions of the Haryana Urban Development Authority Act, 1977 and Haryana Development (Disposal of Land and Building) Regulations, 1978.
4. The petitioners and the private respondents and other eligible persons shall be permitted to participate in the process of sale or allotment. It shall be open to the respondent-Authority to adopt the process of auction or allotment but, in any case, the tentative price of each site shall be pre-determined and the proportionate earnest money received along with the applications.
5. Before initiating action for sale or allotment of the sites, value of the construction of building and plant and machinery, raised by the private respondents herein shall be got determined by the Committee of experts headed by Chief Engineer, PWD (B&R) within three months.
6. Such Committee of experts shall value the plant and machinery which shall be after taking into consideration the depreciated value from the cost.GULATI DIWAKER 2014.08.28 16:52 I attest to the accuracy and integrity of this document CWP No.9079 of 2013 17
7. The intending purchasers would be intimated that if they succeed in getting the site allotted in their favour, they will take its possession along with the building and/or plant and machinery as per the option exercised. However, in case, the previous allottee is successful, he shall be given benefit of 10% of the bid amount.
8. The process of re-allotment of 43 plots shall be completed within six months from today. All the respondents shall be permitted to carry on their activities in the sites allotted to them on furnishing of undertaking within one month from today that they will hand over physical vacant possession to HUDA or its representative after the expiry of six months. In case, any of the respondents violate the undertaking, they shall be liable to be proceeded against for violation of the order passed by this Court and shall also pay damages for use and occupation of the site in excess of the period of six months on per-day basis as the Court may determine at the relevant time.
(HEMANT GUPTA) JUDGE AUGUST 25, 2014 (KULDIP SINGH) 'D. Gulati' JUDGE GULATI DIWAKER 2014.08.28 16:52 I attest to the accuracy and integrity of this document