Punjab-Haryana High Court
Om Parkash Mukdam vs State Of Haryana & Ors on 3 September, 2014
Equivalent citations: AIR 2015 NOC 754 (P. & H.)
Author: Amol Rattan Singh
Bench: Surya Kant, Amol Rattan Singh
CWP No.2367 of 2012
& connected cases -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
Date of decision: 03.09.2014
(1) CWP No.2367 of 2012
Om Parkash Mukdam
... Petitioner
vs
State of Haryana and others
Respondents
(2) CWP No.6553 of 2012
Raj Kumar & Another
... Petitioner
vs
State of Haryana and others
...Respondents
(3) CWP No.20548 of 2012
Rohtash Singh
... Petitioner
vs
State of Haryana and others
...Respondents
(4) CWP No.16554 of 2013
Sumitra Basu and Another
... Petitioner
vs
State of Haryana and others
...Respondents
(5) CWP No.25583 of 2013
Janak Raj
... Petitioner
vs
State of Haryana and others
...Respondents
(6) CWP No.1317 of 2014
VIKAS CHANDER
2014.09.05 10:13
I attest to the accuracy and
integrity of this document
Chandigarh
CWP No.2367 of 2012
& connected cases -2-
Rahul and others
... Petitioner
vs
Financial Commissioner & Secretary, Urban Estate Haryana & others
...Respondents
CORAM: HON'BLE MR. JUSTICE SURYA KANT
HON'BLE MR. JUSTICE AMOL RATTAN 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. Sudhanshu Makkar, Advocate;
Mr. IP Goyat, Advocate;
Mr. RN Lohan, Advocate;
Mr. Randhir Singh, Advocate;
Mr. R. S. Hooda, Advocate;
Mr. Sanjay Vashisht, Advocate for the petitioners.
Mr. HS Hooda, Advocate General, Haryana with
Mr. Vinod S Bhardwaj, Addl. AG Haryana.
Mr. Rajiv Atma Ram, Senior Advocate with
Mr. Arjun Pratap Atma Ram, Mr. Sube Singh and Mr.
Ranjit Singh, Advocate for HSIIDC.
Mr. Dipak Sibal, Senior Advocate with
Mr. Balpreet Sidhu and Mr. Raman Gaur, Advocate,
for HUDA.
Mr. Mukul Rohatgi & Mr. Randeep Rai, Senior Advocates
with Mr. Rajeev Anand, Advocate
for respondent No.6 (in CWP-2367-2012)
Mr. Rajeev Nayyar, Senior Advocate with
Mr. Harsh Bangar, Advocate
for respondent-DLF (in CWP-20548-2012).
Mr. Chetan Mittal, Senior Advocate with
Mr. Abhinav Sood, Advocate and
Mr. Varun Issar, Advocate for respondent No.8
(in CWP-6553-2012).
Mr. Ashwani Talwar, Advocate for the Intervenors in
VIKAS CHANDER CWP No.2367 of 2012.
2014.09.05 10:13
I attest to the accuracy and
integrity of this document
Chandigarh
CWP No.2367 of 2012
& connected cases -3-
AMOL RATTAN SINGH, J.
These six cases have been clubbed together, though they do not all challenge the same acquisition proceedings, but commonly challenge the subsequent allotment of land acquired, that is subject matter of these acquisitions, to M/s DLF Limited ( respondent no.6 in CWP No.2367 of 2012), vide a Regular Letter of Allotment, dated 09.02.2010. However, all the petitions also challenge the different acquisition proceedings, by which the land that was later transferred, was acquired. In all, 3 sets of acquisition proceedings have been challenged, each challenge being common to two petitions. Details are given hereinafter.
2. Of these six cases, CWP No.2367 of 2012, has been filed by way of Public Interest Litigation by one Om Parkash Mukdam, who has challenged the acquisition and transfer of land belonging to the Gram Panchayat of Village Wazirabad, Tehsil and District Gurgaon.
3. Similarly, CWP No.6553 of 2012 has also been filed in the form of a PIL, filed by two petitioners, Raj Kumar and Nahar Singh, who have also challenged the same acquisition and transfer.
4. The basic detail of the acquired parcels of land which are subject matter of these petitions, is as follows:
CWP No. Date of Date of Date of Total land subject
Notificati Notificati Award matter of the petition
on under on under
Section 4 Section 6
2367 of 20.1.04 19.1.2006 439 bighas, 15 biswas
2012 (PIL) and 19 biswanis
(approximately 275
acres) -as per the
08/08/03 Award announced.
VIKAS CHANDER
2014.09.05 10:13
I attest to the accuracy and
integrity of this document
Chandigarh
CWP No.2367 of 2012
& connected cases -4-
CWP No. Date of Date of Date of Total land subject
Notificati Notificati Award matter of the petition
on under on under
Section 4 Section 6
6533 of 20.1.2004 19.1.2006 - do-
2012
(PIL) 08/08/03
16554 of 3 bighas and 5 biswas
2013 08/09/97 07/09/98 06/09/00
20548 of 1 bigha, 9 biswas and
2012 08/09/97 07/09/98 06/09/00 14 biswanis
25583 of 29.8.1998 26.8.1999 24.08.200 19 biswas
2013 1
1317 of 29.8.1998 26.8.1999 24.8.2001 54 bighas, 14 biswas
2014 and 14 biswanis
5. Other than the two PILs, the remaining 4 petitions have been filed by those whose land was acquired by the above given different acquisition proceedings.
6. A Regular Letter of Allotment dated 9.2.2010 (hereinafter to be referred as the 'RLA'), was issued by the third respondent in CWP No.2367 of 2012, i.e. the Haryana State Industrial & Infrastructure Development Corporation Limited (hereinafter to be referred as 'HSIIDC' or the Corporation), in favour of M/s DLF Ltd. (Respondent No.6 in CWP No.2367 of 2012). 350.715 acres of land was transferred, of which almost 76 acres were initially acquired for the Haryana Urban Development Authority (HUDA) and was first transferred by it to the HSIIDC which then transferred that land, as part of the 350.715 acres, to M/s DLF Limited. The remaining 275 acres was the Panchayat land acquired for the HSIIDC. The common respondents in all the petitions are, therefore, the State through different officers, HUDA, HSIIDC and DLF, common to all these cases. The Gram Panchayat of Village Wazirabad and its successor, Municipal Corporation, Gurgaon, are VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -5- impleaded as a common respondents in the two PILs.
7. Though the controversy is actually within a narrow compass of two issues, viz. (i) the challenge to the acquisition of land itself and
(ii) the transfer of the acquired land to M/s DLF Limited, and would not otherwise have required such a detailed reproduction of the pleadings and the arguments as we have done, however, all learned counsel addressed lengthy arguments, with the respondents especially, referring to the pleadings in detail at each stage, over a period of about 14 to 15 hearings. As such, we feel the need, and are also bound, to refer to the pleadings along with the arguments made, in detail.
8. The Ist Public Interest Litigation, i.e. CWP No.2367 of 2012, was treated as the lead case and as such the facts are being taken from the said petition.
9. As set out in the petition, the petitioner being a resident of village Wazirabad, claiming to be a public spirited person, is aggrieved of the acquisition of land belonging to the Gram Panchayat of village Wazirabad which, according to him, has been acquired only under the garb of a public purpose whereas actually the entire exercise was undergone only to benefit respondent no.6, i.e. M/s DLF Limited (hereinafter to be referred as DLF or the Company or respondent no.6). The petitioner himself claims to have no interest in the land itself, except to the extent that he has concern being an inhabitant and a proprietor of village Wazirabad.
10. As per the petition, a total of 445 Bighas and 2 Biswas (278 acres, 1 Kanal - 10 Marlas) of land was sought to be acquired vide the notification issued under Section 4 of the Land Acquisition Act, 1894 VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -6- (for short, the Act), on 8.8.2003, with the public purpose being given out as, 'development of Re-creational/Leisure Project' by the HSIIDC.
11. Thereafter, the award was eventually announced on 19.1.2006 acquiring 439 Bighas, 15 Biswas and 19 Biswanis of land, as on actual measurement, it was found that land measuring 5 Bighas, 6 Biswas and 1 Biswani had already been acquired for respondent no.5 - the Haryana Urban Development Authority (hereinafter to be referred to as 'HUDA').
12. The award also announced a total compensation of Rs.55,66,44,426/- for acquisition of the land.
13. Though the land was acquired in 2006, the petitioner claims that it was on the 19th of August, 2009, about 3 and a half years later, that he read a news item in the Times of India that DLF was "set to bag mega land deal" as it had emerged as the sole bidder for 350.715 acres of prime land in Gurgaon, for development of a re-creation and leisure project, including an eighteen hole Golf Course, after two other bidders had been disqualified for the said project.
14. Contending that he realized that a fraud had been played upon the residents of the village, the petitioner applied for and sought information under the Right to Information Act, 2005 (hereinafter to be referred as the 'RTI Act') on 29.10.2009, seeking to know about the deal finalized between HSIIDC and DLF. In response to the application, he was informed that no certified copy of the "deal finalized by HSIIDC with DLF", qua 350.7 acres of land for a leisure project existed, though an allegedly unreadable copy of the 'sazra' plan pertaining to 350.7 acres VIKAS CHANDER of land in which the leisure project was to be developed, was annexed 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -7- with the reply.
15. Subsequently, the petitioner again sought information on 21.1.2010, but in the meanwhile, came to know that after finalization of the said deal, a letter of allotment had also been issued in favour of DLF, by which the land was to be allotted on free hold basis.
16. He, therefore, filed yet another application under the RTI Act on 6.6.2011 and though the said application was replied to almost immediately by HSIIDC, admitting that M/s DLF Limited was to develop the project and a Regular Letter of Allotment had also been issued and that international competitive bids for the project had been invited, a copy of the allotment letter was not supplied to the petitioner. The reply also informed him that DLF was allotted the project, being the highest bidder for the same.
17. This was followed by yet another letter from the petitioner, seeking more information with regard to the decision of the State Cabinet on allotting the project to a private player, as also seeking the list of bidders etc., which was replied to on 1.9.2011, giving therein, the following information:-
"(A) The utilization of the land allotted was to be made in the following manner:-
(i) Residential purpose- 38.47 acres
(ii) Commercial purpose-19.24 acres
(iii) Sports Complex and related purposes-20 acres
(iv) Golf Course-balance land (B) The participants in the bid were:-
(i) M/s DLF Ltd. Gurgaon VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -8- (ii) M/s Berhand, Dar-Ul-Ehsan (iii) M/s Uni-Tec Limited, Gurgaon."
18. A copy of the Regular Letter of Allotment was also enclosed and the petitioner was told that a copy of the Cabinet decision could be seen by him in the office of HSIIDC.
19. The petitioner thereafter yet again applied under the RTI Act, this time to HUDA, Gurgaon, seeking a copy of the deed of transfer of the land to the HSIIDC. The said having been denied on the ground that it would only be supplied after finalization, the petitioner filed an appeal, upon which the Chief Information Commissioner directed that the information be supplied. As such the details of the transfer of land from HUDA to HSIIDC was supplied to the petitioner on 27.12.2011.
20. As per the petition, the land was transferred on 8.6.2010, but the authorities were deliberately with holding this information from the petitioner, on one pretext or the other.
21. The petition then details the essential facts of the allotment, to the effect that, of the three companies that had given bids for the project, the financial bids of the two companies other than M/s DLF Ltd.
were not even opened, as they had failed to meet the technical criteria. As regards DLF, its technical bid having been accepted, it made a financial bid @ Rs.12,000/- per square meter and was allotted the entire land comprising 350.715 acres on free hold basis, being the sole bidder left in the fray.
22. As per the petition, the rejection of the technical bids of the other two contenders, itself shows that the notification of the State Government (respondent no.1) was to acquire land for DLF only. VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012
& connected cases -9-
23. It is further set out that since the land acquired vide the impugned notification was only 274.875 acres, the remaining 75.975 acres that had earlier been acquired for HUDA by the State Government vide the Award dated 6.9.2000 and was to be developed for a residential and commercial sector, was also transferred by HUDA to the HSIIDC and further on to DLF, vide the impugned letter of allotment.
24. It is further contended that though the news item read by the petitioner (on 19.8.2009) stated that the bid for 350.715 acres was for an amount of Rs.1750 crores, however, it was actually for only Rs.1703.20 crores against the reserved price of Rs.1700 crores, thus working out to a rate of Rs.4.86 crores per acre.
25. As per the petitioner, 250.12 acres of land was earlier acquired for a sum of Rs.34,54,75,102/- vide award dated 6.9.2000. Of these 250 acres, 75.975 acres were transferred to DLF after HUDA had transferred the same to HSIIDC, thereby resulting in a cost of acquisition (of this transferred land), to be Rs.10,49,39,511/-. The remaining 274.875 acres being transferred to DLF, as already said, are stated to have been acquired for Rs.55,66,44,426/-.
26. As such, the land acquired by the Government for approximately Rs.67,00,00,000/- (Rs.67 crores) was sold to M/s DLF for Rs.1703 crores @ Rs.12000/- per sq. metre, against a reserved price of Rs.11768/- per metre; the contention being that the Government had enriched itself at the cost of the Gram Panchayat and other owners of the land.
27. Even having said so, at one juncture in the petition, it is also contended that the market price of the land is far higher than the price at VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -10- which the respondents have sold the same to DLF. Thus, Panchayat land, according to the petitioner, has been sold at a throw away price to a private developer.
28. Further contention reiterated with reference to clauses 3 & 4 of the RLA, is that, in view of the fact that the entire ownership of the land is being transferred to DLF on free hold basis and the ownership of the State would cease the moment the entire consideration money is received, the acquisition made vide award dated 19.1.2006 is not at all for a public purpose and has, as a matter of fact, been made only to facilitate the DLF project, under the garb of acquisition for a public purpose.
29. It is contended that since DLF or any other body could not purchase the land of the Gram Panchayat for the purpose of extension of its golf course and for constructing golf villas etc., because of the specific bar imposed by Section 5 of the Punjab Village Common Lands (Regulation) Act, 1961, hence, a novel method was devised by the State, allegedly in collusion with DLF.
Rule 12 of the Punjab Village Common Lands (Regulation) Rules, 1964, which further places a restriction on the sale of Panchayat land for specific purposes only, has also been cited by the petitioner.
30. In furtherance of the same contention, the writ petition states that as a matter of fact, though the land was acquired for the public purpose of development of re-creational/leisure projects and other utilities, however vide the impugned Letter of Allotment, permission has been granted to DLF for developing a purely private project in which apartments/villas of various sizes have also been allowed, thereby VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -11- altering the public purpose also. As per the petitioner the allotted land is to actually augment a luxury residential area project advertised as the "The Magnolias", by DLF, thereby enriching a private enterprise and benefitting those to whom such villas were sold, thus defeating the very purpose and nature of the user of land belonging to the Gram Panchayat.
31. The petitioner further contends that this exercise is in the background of the fact that DLF is a major urban estate developer in the city of Gurgaon and has already acquired licences and large tracts of land in the adjoining areas, also to develop and operate a golf course and clubs and residential projects. A site plan has been annexed, showing contiguous adjacent area to the land now being transferred, that had earlier been purchased by DLF, and for the development of which a license has already been obtained by the company. The site plan demarcates both the tracts of land initially acquired, first vide Award dated 6.9.2000 (of which the 75.975 acres transferred from HUDA forms a part) and then by the Award dated 19.1.2006 (for 274.875 acres), both of which are abutting and contiguous to each other as well as to the land purchased by DLF on its own, earlier.
32. Hence, it is contended that it is obvious that the acquisition was not actually for the bonafide purpose of development by the HSIIDC, but for HSIIDC to act as an "agent" for DLF.
33. The petition, in essence therefore, challenges the entire exercise of acquisition and transfer of the acquired land to DLF as being vitiated on account of colourable exercise of power, in which, though land has been acquired for a company, the procedure laid down in Part VII of the Act has not been followed. Hence, prayers for quashing of the VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -12- acquisition itself, as also for quashing of the transfer of the land to DLF have been made, with a further prayer to revert the land to the ownership and possession of the Gram Panchayat of village Wazirabad.
34. The above being the contentions in the writ petition, we shall now first refer to the specific arguments of Mr. Sudhanshu Makkar, learned counsel for the petitioner.
35. Basically reiterating what has been stated in the pleadings, Mr. Makkar first submitted with regard to the preliminary objection raised in all the replies of the respondents, on the locus-standi of the petitioner to file the present petition as Public Interest Litigation. He submitted that the petitioner was a bona fide resident of village Wazirabad and as such was obviously concerned with the mis-user and, as he put it, usurpation of Panchayat land, for benefitting the coffers of a private enterprise, which land was actually common property of all the villagers. He re-iterated that the public purpose for which the land was sought to be acquired was for development of a re-creational/leisure project by the HSIIDC, but with the transfer of land to a private company, residential and commercial usage having been also permitted, the public purpose stood diverted, thereby amounting to a fraud upon the public.
36. He further submitted that land of the Gram Panchayat can only be utilized for the purpose of development to benefit the villagers, even as per Section 5 of the Punjab Village Common Lands Act, 1961. He drew attention towards the said provision which reads as under:-
"Regulation of use and occupation. etc. of lands vested or deemed to have been vested in Panchayats. -(1) All lands vested or VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -13- deemed to have been vested in a Panchayat under this Act shall be utilized or disposed of by the Panchayat for the benefit of the inhabitants of the village concerned in the manner prescribed:
Provided that where two or more villages have a common Panchayat the shamlat deh of each village shall be utilized and disposed of by the Panchayat for the benefit of the inhabitants of that village:
Provided further that where there are two or more shamlat tikkas in a village the shamlat tikka shall be utilized and disposed of by the Panchayat for the benefit of the inhabitants of that tikka:
Provided further that where the culturable area of land in shamlat deh of any village so vested or deemed to have been vested in a Panchayat is in excess of two-thirds of the total area of that village (excluding abadi deh), then culturable area upto the extent of two-thirds of such total area shall be left to the Panchayat and one-half of the remaining culturable area of shamlat deh shall be utilized for the settlement of landless tenants and other tenants ejected or to be ejected of that village and the remaining culturable area shall be utilized for distribution to the small land owners of that village by the Collector, in consultation with the Panchayat, in such manner as may be prescribed."
xxx xxx xxx
37. Mr. Sudhanshu Makkar further drew attention to Rule 12 of the Punjab Village Common Lands (Regulation) Rules, 1964, according to which Gram Panchayat land can be sold for -
i) "the purpose of constructing building for Block Samiti office or any department of or institution recognized by the Government;
ii) the purpose of any industrial or commercial concern; or
iii) executing such a scheme as may be a source of recurring income for the benefit of the inhabitants of the village.
iv) Residential purpose of the inhabitants of the village.
v) For the purpose of financing the construction of building for VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -14- schools and for veterinary and civil dispensaries in the Sabha area."
(2) xxx xxx xxx
(3) xxx xxx xxx
38. Thus, it is contended that the land of the Gram Panchayat cannot, in any case, be utilized for any purpose other than for the benefit of the inhabitants of the village and that too only after a valid resolution to that effect is passed by the Panchayat, duly approved by the Government.
39. Mr. Makkar further contended that, as a matter of fact, the complete purpose of utilization of the land of the Panchayat was determined only after the acquisition in view of the fact that a consultant was appointed to look into the viability of all the projects suitable for the land, well after the notifications were issued under Sections 4 and 6 of the Act, i.e. on 27.9.2004. Thus, as per learned counsel, at the time when the notification under Section 4 of the Act was issued on 8.8.2003, even the Government itself was not clear as to what purpose the land was to be utilized for, thereby vitiating the entire acquisition process, purported to have been promulgated for the purpose of development of a recreational/leisure project.
40. He, thus, contended that it was obvious from the above that the purpose being only to benefit DLF and not the public, it was actually a misuse of the compulsory nature of acquisition under the Land Acquisition Act, 1894.
41. He next reiterated his stand with regard to non-compliance of Part VII of the Act, which requires a stringent procedure of previous VIKAS CHANDER enquiry, signing of an agreement with the Government by the company, 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -15- due publication of the said agreement, after all of which the Government would grant consent for initiation of the acquisition proceedings.
42. He also referred in this regard to the Land Acquisition (Companies) Rules, 1963, laying down guidelines with regard to the exercise of jurisdiction under Part-VII of the Act. The rules envisage the formation of a Land Acquisition Committee for the purpose of advising Government on all issues relating to acquisition of land for companies and as to what aspects should be looked into by the government before entering into an agreement under Section 47, before finally initiating acquisition proceedings.
43. Mr. Makkar further reiterated that other than the land of HSIIDC, even the land of HUDA had been diverted for re-creational purposes only to benefit DLF, which was amply discernible from the fact that the Regular Letter of Allotment sought to transfer the land on a completely free hold basis to a private company.
44. Thus, he submitted that "public purpose" was only a camouflaged nomenclature, in order to transfer the land to DLF.
45. He placed reliance on various judgments, but especially upon M/s Royal Orchid Hotels Limited and another vs G. Jayarama Reddy and others 2011(4) RCR (Civil) 613, Patasi Devi vs State of Haryana and ors. 2012 AIR (SCW) 5294 and Greater Noida Indusl. Development Authority vs Devendra Kumar & ors. 2011(12) SCC 375, which we shall advert to while discussing the arguments.
46. We now come to the arguments made by Mr. Ashwani Talwar, Advocate, appearing for the intervenors in the lead case, i.e. Deepa Surana, Padma Devi Surana and M/s Surana Farm, Jaipur, VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -16- through Shri Vimal Chand Surana, Proprietor (HUF).
47. These three persons are stated to be those who had earlier filed CWP No.25301 of 2013 challenging the acquisition and transfer of land but had withdrawn the same with liberty to file a public interest litigation, vide order dated 19.11.2013. Having come to know that CWP No.2367 of 2012, i.e. the present PIL, is already pending, they have filed an application seeking to intervene on the side of the petitioner.
48. The application states that these persons were owners in possession of 4.68 acres of land situated in the revenue estate of Village Wazirabad, which was acquired in the acquisition process initiated by a notification issued under Section 4 of the Act on 29.8.1998. The land was acquired for the purpose of development of a sector road between Sectors 42 and 43, Gurgaon, and was part of a total of 38.24 acres eventually acquired vide an Award dated 24.8.2001.
49. The contention in the application further is that only a fraction of the acquired land was used for construction of a road because the alignment of the road itself was changed after the acquisition. As such, it is stated that the land rendered surplus on account of non- construction of the road has been arbitrarily made a part of the 350.715 acres of land allotted/sold to DLF. However, it is only after the applicants were sought to be dispossessed from the land in question that they came to know of the sale of the same and had thus challenged the acquisition and allotment.
50. Though we fail to understand as to how the petitioners, being owners of land that was acquired, are in public interest litigation, as the acquisition process, and the subsequent allotment, affect them VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -17- directly; however, since their earlier petition was dismissed as withdrawn with liberty to approach the court afresh by way of a public interest litigation, we have allowed them to intervene and assist this Court.
51. He drew specific attention to the reserved price of Rs.11,768/- per sq. metre, on which the bids could be tendered, and submitted that malafides were evident from the fact that DLF was the only contending party left whose financial bid was opened after the rejection of the other two contenders on technical grounds, i.e. at the technical bid stage itself. Thus, the land which may have otherwise fetched a much higher price, had the final bids of the other two contenders been opened, was sold eventually at a price only marginally higher than the reserved price. As such, he contended that it was only too obvious that the entire process was dedicated towards eventually handing over the land to DLF.
52. He next submitted that since 38 acres were to be used for commercial and 30 acres for residential purposes, HUDA itself could have utilized the land handed over by it to HSIIDC (for further transfer to DLF) but since the company was to be benefited, in collusion with the government and its agencies, a reason was trumped up that the project could be better developed by private enterprise rather than by government agencies, which could actually have developed it in the same manner.
53. He submitted that even the land acquired for roads etc. were now to be utilized for the Golf Course; the contention, therefore, being that the project proponent and eventual owner of all erstwhile public VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -18- land, was being favoured in every manner possible, so as to ensure the financial viability of its private project.
54. Coming now to the arguments addressed by learned counsel appearing for the petitioners in the other writ petitions, i.e. CWPs No.6553 of 2012, 20548 of 2012, 16554 of 2013, 25583 of 2013 and 1317 of 2014. All learned counsel basically reiterated, in different words, what had already been argued by Mr. Makkar and Mr. Talwar with Mr. Sanjay Vashisht, appearing for the petitioner in CWP No.1317 of 2014, Mr. R. N. Lohan, appearing for the petitioner in CWP No.20548 of 2012 and Mr. I. P. Goyat, appearing for the petitioners in CWP No.6553 of 2012.
55. Other than the arguments submitted by Mr. Makkar and Mr. Talwar, Mr. Sanjay Vashisht raised one additional issue with regard to The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, referring to Section 24(2) thereof, which stipulates as under:-
"Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:
Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -19- Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act."
56. Mr. Vashist contends that the petitioner not having accepted the compensation for the acquired land, the proceedings under the Act of 1894 would be deemed to have lapsed in terms of Section 24(2) of the new Act of 2013 and the land should revert to the land owners. He submitted that the total land owned by the three petitioners is 1 Bigha and 15 Biswas contained in Khasra Nos. 2120-2039/ 3 min.
57. Having heard all learned counsel appearing for the petitioners, we shall now first refer to the arguments of the learned Advocate General, Haryana, Shri H.S. Hooda. Shri Hooda took us through the detailed reply of the State, which we, therefore, now also advert to, in detail.
58. A preliminary objection has been taken on the maintainability of the petition as a Public Interest Litigation, alleging that it has been filed with an ulterior motive and "to sub-serve other oblique considerations".
59. Shri Hooda submitted that the petitioner does not satisfy the conditions laid down in the rules framed by this Court with regard to the maintainability of a public interest litigation and as such the petition has to be dismissed on this short ground alone.
60. He further submitted in this regard that in the absence of the petitioner disclosing his involvement in any earlier litigation showing his bonafides as a public spirited person, his motive to challenge only this particular acquisition etc., was highly suspect.
61. He submitted that the second additional affidavit filed by VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -20- the petitioner on 7.2.2014 should have disclosed the petitioners' stand right from the beginning, but he waited till the arguments were well in progress, from day to day, before filing the said affidavit; therefore, he cannot be taken to be a person who has come with clean hands.
62. Also on the petitioners' bonafides, the Advocate General submitted that he had filed no objection under Section 5-A of the Act, as he was obviously not concerned with the acquisition at all.
63. In this regard, he drew special attention to the fact that only one common objection was received to the acquisition proceedings and that too not by the Gram Panchayat or any inhabitant of the village, but only by private companies (M/s Qutab Holdings etc., referred to ahead in this judgment). This was despite the fact that there was due publication in an English and a Hindi daily, of the notifications issued under Sections 4 and 6 of the Act, as per statutory requirement.
64. Objection with regard to the six years' delay in filing of the petition after announcement of the award on 19.1.2006 has also been taken, further stating that no petition challenging acquisition proceedings is competent after the announcement of an award under Section 11 of the Act.
65. Mr. Hooda argued that the petitioner was obviously also fully aware of the fact that a civil suit with regard to exchange of Panchayat land with that of a private company was pending since long, which had subsequently been brought to this Court also by way of Civil Writ Petition No.8186 of 1998 (O&M) and LPA No.69 of 2005 and as such, actually he had chosen to remain silent at that time and is now using the pretext of the advertisement given in the newspaper, inviting VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -21- bids for the project, to file the present PIL more than five and a half years after the acquisition had taken place, vide the award dated 19.1.2006 and about 12 years from the date of the earlier Award for the HUDA Land, i.e. 6.9.2000. Therefore, the delay in challenging the acquisition has not been explained by the petitioner. The ground taken by the petitioner that he came to know of the proposed sale to DLF only in the year 2009, firstly shows that he is not aggrieved of the acquisition itself and secondly, even thereafter, it took the petitioner two and a half years to finally challenge the transfer of the land to DLF, the petition having been filed only in 2012.
66. Mr. Hooda contended that all the above shows that the petitioner has no locus standi to challenge either the acquisition proceedings or even the transfer of land and he is actually an interested party or is standing for an interested party. He, thus, does not fulfill the conditions necessary for a bona fide public interest litigation and, in fact, none of the other petitioners in the connected petitions, have any locus to challenge the proceedings or transfer at this stage, in any case.
67. Further refuting the challenge of the petitioner, the States' reply details by way of its preliminary submissions, the context and background leading up to the acquisition of the land as follows:-
(i) Numerous queries and representations on projects for developing leisure and business centres with a good infrastructure were made by foreign delegations during the year 2002-2003. (Names of some companies which are stated to have made such queries/representations have also been given). As such, the responsibility of "steering a project" was entrusted to the HSIIDC by the VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -22-
Government.
(ii) A core group of senior officers of the Corporation are stated to have conceptualized a proposal for development of an eighteen hole golf course, convention facility/services and an entertainment/leisure project, with housing included. The said group is stated to have identified the Panchayat land of village Wazirabad in District Gurgaon for the purpose, subject to clearance by the Defence and Environment Ministries of the Government of India.
(iii) The project was proposed to be in a joint venture with a partner like HUDA or "private players".
(iv) The proposal was approved by the Board of Directors of HSIIDC in its 265th meeting held on 7.02.2003. In a subsequent meeting held on 21.5.2003, the BOD decided to engage a consultant for a feasibility study on the project, and to approach the Government for acquisition of the Panchayat land. The proposal is also stated to have included a request to HUDA for transfer of its adjoining land measuring about 76 acres in Sectors-42 and 44, Gurgaon, of the approximately 250 acres of land acquired for development of residential and commercial sectors, vide awards announced on 4.1.1994, 6.9.2000 and 24.8.2001.
(v) After examination of the financial viability of the project, it was decided to provide for "revenue generating components"
other than simply developing a golf course and open greens, and as such, HUDA was requested, at the conceptualization stage itself, to transfer its land measuring about 76 acres to the Corporation at the same price at which HUDA had acquired the land from its proprietors.
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project would not be one of HSIIDC alone but a joint project of both, HSIIDC and HUDA and the total area of land measuring 350 acres, mostly belong to the Corporation and some to HUDA, was finalized as the project land.
(vii) Accordingly, the notification under Section 4 of the Act was issued on 8.8.2003, culminating in the impugned acquisition of 274.875 acres of land for the HSIIDC. The initial notification is stated to have been objected to by only one common objection filed by M/s Qutab Holdings Private Limited, M/s Grand Tower Private Limited, M/s Belrus Agro Fertilizers Private Limited and M/s Midwest Housing Limited, through their Directors, only in respect of land measuring 6 Bighas and 18 Biswas of land.
68. Importantly, it has been stated that no objection was filed either by the Gram Panchayat or any of the proprietors of the village, thus leading to the eventual finalization of the acquisition, after rejection of the sole objection received.
69. Giving details on the other parcels/chunks of land acquired, which form a part of the 350.715 acres in question, learned Advocate General gave the following break up.
70. An award in respect of acquisition proceedings for acquiring 51.3 acres in village Wazirabad was passed by the Land Acquisition Collector on 4.1.1994 of which only 0.25 acres have been given to DLF.
71. With regard to the acquisition proceedings culminating in the award dated 6.9.2000, 48.07 acres is being transferred to DLF by the HSIIDC.
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72. As regards award No.9 dated 28.2.2001, 27.7 acres out of 34.21 acres acquired, utilized for roads of the urban estate sectors developed by HUDA is being transferred to DLF, being contiguous to the major chunk of land, i.e. 274 acres of shamlat land acquired from the Gram Panchayat of Village Wazirabad vide acquisition proceedings culminating in award dated 19.1.2006, the entire chunk of which is now being sold to DLF.
73. Mr. Hooda, therefore, contended that all other land acquired vide Awards dated 06.09.2000 and 28.02.2001 (other than the Award dated 19.01.2006), which has not been transferred to DLF, has been utilized for development of various sectors in Gurgaon, either by HUDA or by the HSIIDC.
74. Further, explaining the factual background, the learned Advocate General referred to the reply which states that while the land acquisition process was in progress, the Board of Directors of HSIIDC, in its various meetings, continued considering various aspects of the project and recommended to the Government to select a suitable agency/investor by a competing process based on pre-defined technical and financial parameters. It also recommended the constitution of an Empowered Committee of senior officers of various departments to look into the issue. As such, a committee under the Chairmanship of the Principal Secretary to the Chief Minister was constituted on 8.10.2003 to "identify, formulate, evaluate, appraise" technical and financial bids and thereafter to make a suitable recommendation to the Government. The Committee is stated to have consisted of three Financial Commissioners, one Commissioner, one member of the Board of the VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -25- HSIIDC, with the Managing Director of HSIIDC as its Member Secretary.
75. The HSIIDC also engaged a consultancy agency, one M/s PGA Design Consulting Limited, which first submitted a preliminary report on 27.09.2004 and was thereafter asked to submit a detailed project report. That was submitted on 02.11.2004 and was considered by the Board of Directors of the HSIIDC in its 281st meeting held on 29.11.2004.
76. It was resolved that the Corporation may take up the matter of requisite clearances from the Ministries of Environment & Forests and Defence, as also various Departments of the Government of Haryana and other authorities, towards which purpose the Ministry of Environment and Forests was first approached for clearances/comments on the project, vide letter dated 08.11.2004.
77. The reply further states that, initially, in view of the order of the Hon'ble Supreme Court, dated 18.03.2004, in M.C. Mehta Vs. Union of India (AIR 2004 SC 4016), the HSIIDC reconsidered its desirability of acquiring some part (about 92 acres) of the land in question, as it was earlier falling within the prohibitory/restrictive notification issued under Sections 4 and 5 of the Punjab Land Preservation Act, 1900, up to the year 1995. However, it was finally decided to go ahead with the entire acquisition "in order to develop and maintain a green ambience over such part of the land and prevent any unplanned and unauthorized use of the area keeping in view the strong apprehensions of encroachments". This is stated to be a decision taken in a meeting held on 16.12.2005, (though an application has been moved VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -26- before the Supreme Court on the environment issue).
78. The preliminary submissions of the State reply further seek to explain the process of finalization of the concept of the project and the market evaluation of the land in order to determine the reserved price for inviting competitive bids for the project.
79. In this regard, the reply highlights the following:-
(i) That it had been pointed out by the Chief Administrator, HUDA, at the time of transfer of 75.975 acres of HUDA land to the HSIIDC, that some part of this land was under the "Aravali notification" dated 07.05.1992, according to which the basic character of the land was required to be retained and all development was to be in conformity with the notification.
(ii) That because there was a considerable time lag after the submission of the detailed project report by M/s PGA Design Consulting Limited (on 02.11.2004), a sub-committee of the Directors of the Corporation was constituted on 07.01.2008 by the BoD, to evaluate the report and give further recommendations. The sub-committee is stated to have consisted of the Financial Commissioner, Industries, Commissioner and Secretary, Town and Country Planning, Director, Town and Country Planning, the Chief Administrator of HUDA, the Special Secretary Finance and the Managing Director of the HSIIDC.
Other than evaluating the relevancy of the project report, it having been submitted three years earlier, VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -27- the sub-committee was also to consider as to whether the project should be developed by Government agencies or on a turn-key basis through the private sector. It was also asked to delineate the road-map of the project.
(iii) Consequently, the said sub-committee recommended on 22.02.2008, that the project report submitted by M/s PGA Design Consulting Limited needed to be "re-examined and re-worked" in view of the changed circumstances.
It also recommended that keeping in view "capacity constraints and working practices of Government agencies", the best option was to implement the project through the private sector and that the selection of the private agencies should be based on technical qualifications and financial evaluation criteria, announced upfront. The sub-committee also recommended, in order to maintain transparency, inviting of open competitive bids for allotment of the project.
It further recommended that M/s Infrastructure Leasing and Financial Services (IL&FS) be engaged as the consultant for preparation of the documents containing the qualification requirements of the bidders, prescription of land uses and assessment of the land price, so as to determine the reserved price on which the bids were to be invited.
80. Thereafter, M/s IL&FS is stated to have submitted its report VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -28- recommending the following:-
i) Disposal of the entire project area of about 350 acres through open auction on an "as is where is" basis;
ii) The buildable area of the Project to be as under:-
Sr. Land Use Land area
No.
1 Residential 38.47 acre
2 Commercial 19.24 acre
3 Sports Complex & 20.00 acre
related infrastructure
facilities
4 Golf Course Balance land
(subject to
requisite
approvals)
(The above information, of course, was the same as given to the petitioner on his application under the RTI Act).
iii) Value of the project land, i.e. 350 acres, worked out to Rs.737.28 crores as per the then existing Collectors' Rates but was determined at Rs.1683.53 crores on the basis of prevailing market rates.
81. This report was placed before the BoD of the Corporation in its meeting held on 16.04.2008 and the Board of Directors accepted all the recommendations except the reserved price, which was fixed at Rs.1700 crores instead of Rs.1683.53 crores. It thus, as per the reply, worked out to Rs.11978/- per sq. mtr., the actual land measurement being 350.715 acres.
82. The reply still further states that the overall economy as well as the realty sector market was upbeat at that time (early 2008) and consequently the reserved price recommended was based on the then prevailing price of the developed lands and buildings in the area in VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -29- question, as opposed to the Collectors' rates.
83. It is further stated that, however, a 'global melt down' came about from August 2008 onwards, resulting in a liquidity crunch and slow down in the realty sector. Also, a Sports City Scheme was floated in neighbouring Noida. On account of both these factors, the sub- committee, on 27.11.2008, again deliberated on the need to re-examine the project parameters before actually floating the project, for "international competitive bids". The matter was finally placed before the Government and it was decided to float the project for competitive bids within the already recommended parameters by M/s IL & FS.
84. Consequently, the project was floated in January 2009, through an advertisement by which sealed bids were invited from eligible bidders.
85. The State reply, still in its preliminary submissions, then narrates the sequence of events pertaining to the first round of the competitive bid which was invited on 14.1.2009 for the project land consisting of 350.715 acres, which, as per the development plan, formed part of Sectors-42,53 and 54, Gurgaon. It is stated to have been advertised for the purpose of setting up of a "World Class Re-Creation and Leisure Project" comprising of commercial, residential, sports and golf course facilities. It layed down a reserved price of Rs.11,978/- per sq. mtr. as per the recommendation contained in the IL & FS report. The advertisement/notice inviting tenders contained the details of the land falling under the notification issued under the Punjab Land Preservation Act, Radar Zone and the area that could be built up etc. The closing date (after extension thereof) for the submission of bids was 30.04.2009. VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012
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86. The first pre-bid meeting is stated to have been held on 30.1.2009, attended by four interested parties, i.e. M/s Emaar MGF, M/s Shapoorji Polan ji Ltd., M/s Pioneer Urban Land & Infrastructure Ltd. and M/s DLF Ltd., in which the M/s DLF raised the issue of too high a reserved price among other issues. It is eventually stated to have been decided that the developer would be free to plan appropriate usage within the buildup zone, subject to approval of building plans.
87. Thereafter, another pre-bid meeting was held on 10.04.2009 which is stated to have been attended by DLF and one M/s PAWA Builder in which the issue of discrepancy in the area under PLPA and the radar zone was raised, along with other issues on mining, cutting of trees etc.
88. After that, it is stated, that only one bid, that of DLF, was received by the closing date of 30.4.2009, quoting a rate of Rs.12,000/- per sq. mtr. and giving certain suggestions therein.
89. Though the technical bid of DLF was also found to be meeting the requisite qualification criteria, the matter was referred to a sub-committee of the BOD which recommended certain modifications in the bid conditions, including obtaining of statutory clearances by the Government, additional payment to be made by the successful bidder for any land compensation etc., revision in payment of 15% of bid amount and permitting of 20% FAR on the area under the Golf Course.
90. The sub-committee also recommended a fresh round of international competitive bidding so as to "maintain transparency and give a fair opportunity to all or any interested parties to respond to the bid" with the changed terms and conditions.
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91. The recommendation of the sub-committee having been accepted, the project was re-advertised on 18.7.2009/20.7.2009 pursuant to which a pre-bid conference was held on 31.7.2009. The last date of submission of bids was fixed as 12.8.2009. The pre-bid conference is stated to have been attended by M/s Sweta Estate Pvt. Ltd, M/s Orange Square Country Consultants, M/s IREO, M/s International Amusement and Infra Ltd., M/s Marg Realities Ltd. and M/s DLF Ltd. However, only two bids are stated to have been actually made, in addition to the existing bid of DLF. One bid was made by a consortium led by M/s Country Heights Holdings Berhad (Malaysia) and the 2nd by a consortium led by M/s Unitech Limited.
92. The bids are stated to have been opened by the technical bid opening committee and placed before the sub-committee of the Board on 18.8.2009. After the committee members made certain observations, it was decided to seek clarifications from representatives of the bidders on certain issues. Consequently, on that very day, i.e. 18.8.2009, the deliberations are stated to have been held by the sub-committee with the representatives of the bidders, with the two consortium bidders giving certain clarifications.
93. After consideration of the technical bids, the Advocate General drew attention to the fact that the bid made by the consortium led by M/s Country Height Holdings Berhad (Malaysia) was rejected on the ground of not fulfilling the net-worth criteria, as also due to the technical member not having the requisite financial ability and not having submitted documentary proof of having developed and operated a Golf Course facility.
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94. As regards M/s Unitech Limited, it was found that the technical partner, in the consortium, i.e. M/s Golden Green Golf Resorts, was yet to obtain a completion certificate from the Department of Town Country Planning and further, through the company had a net worth of Rs.905 crores, it had reported a net loss of Rs.12.10 crores in that year. Further, no document in support of its golf facility having been operational for the stipulated period had been submitted.
95. The bid offered by the sole bidder left, M/s DLF, was found to be conforming to the technical criteria, and in view of the fact that the bid was unconditional in respect of the entire project land, it is stated to have been accepted.
96. The reply further states that though both the technically disqualified bidders were informed of the decision, none of them contested or raised objections, though they requested for a refund of their earnest money and also offered to submit in writing that the decision of the committee was unconditionally acceptable to them.
97. Consequently, their financial bids were not opened and the sub-committee recommended that the bid submitted by DLF @ Rs.12,000/- per sq. mtr., being marginally above the reserve price of Rs.11,978/- per sq. mtr. be accepted. The recommendation of the sub- committee was approved by the Government, upon which the successful bidder, i.e. M/s DLF, deposited 10% of the bid amount on 16.9.2009, after which the impugned Regular Letter of Allotment was issued on 9.2.2010.
98. The reply further states that in addition to the bid amount payable by the successful bidder, along with the applicable interest, the VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -33- bidder is also liable to pay the licence fee, scrutiny fee, external development charges and infrastructure development charges to the Government, estimated to be about Rs.450 crores. Additionally, the successful bidder is also to be bear the cost of "compensatory land" and the expenditure incurred on obtaining all the environmental clearances.
99. Importantly, it is also stated that since the State Government accepted responsibility for obtaining statutory clearances with respect to the land notified under Sections 4 and 5 of the Punjab Land Preservation Act and for the usage of land for the project, the Government itself filed Interlocutory Application No.2858 of 2010 before the Hon'ble Supreme Court in the PIL proceedings pending before the Court (referred to earlier herein above), upon which the Apex Court referred the matter to the Central Empowered Committee (CEC) for consideration, after which the said committee is stated to have submitted its report to the Court.
100. The preliminary submissions to the reply finally seek to submit that the land was acquired with a specific public purpose and it has actually been utilized for the same purpose and that the project has been allotted by an objective and transparent procedure, without any favour to any party. It contends that the fact that the acquisition has not been made for the benefit of DLF in any manner, can be seen from the fact that international competitive bidding was invited on two occasions.
101. It is also high lighted that the project was conceived during one of the overseas visits of the previous Chief Minister in the year 2002-03 and was given final shape after deliberations and meetings held at various levels, with the Award under the Act having been passed in the year 2006, followed by decision taken at various levels, leading upto VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -34- the bidding process. Thus, it is contended that the process having been initiated in 2002-03 and having culminated in 2010 over a period of 7 to 10 years, it could not have been initiated for the benefit of any single entity.
102. The allegation of the petitioner that the land was not acquired as per procedure prescribed in part VII of the Act is sought to be repelled on the ground that the land was never acquired for any company, but was acquired for a public purpose of establishment of a specific project, which subsequently was decided to be handed over to a private enterprise "in larger public interest".
103. It is also stated that had the land been acquired for a private company after following the procedure laid down in part VII of the Act, the company would have got the land for an amount of Rs.55.66 crores and not for Rs.1703 crores as has been now done, by inviting bids.
104. With regard to the specific contentions raised and allegations made in the writ petition, the same have been refuted in the reply on merits, by the State, obviously on the same lines as the contentions made in the preliminary submissions, to the effect that a fully transparent procedure having been followed, over a period of 7 to 8 years, the allegations of mala fides are wholly without any basis, further stating that there are large restrictions on the usage to which the project land can be put and as such the successful bidder would be bound by those restrictions, even having paid a large price for the land.
105. It is further stated that of 350 acres, only about 78 acres, equivalent to about 23% of the land, can be utilized for residential, commercial and sports facilities, with the balance 278 acres to be used VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -35- for the Golf Course and "Open Greens" under the project.
106. It is stated that the contention of the petitioner that the project land is part of the Magnolias Project of DLF is wholly incorrect, as they are two separate projects and that in any case, development over the land in question cannot be made without obtaining approvals from the competent authorities and can obviously be subject only to permission being granted by the Hon'ble Supreme Court, in the matter pending before it.
107. It is also stated that it is not always that the HSIIDC executes projects on its own, as even other large projects, such as the KMP Highway Project, are also being implemented through a concessionaire and that even the Central Government is implementing the Delhi-Mumbai Industrial Corridor Project with private partners.
108. It is also contended that the surplus revenue generated would be utilized for the development of other major infrastructure projects and that the HSIIDC has, in fact, made its own contribution to the Metro Rail Project, the Gurgaon Water Supply Channel Project, etcetra.
109. It is also contended that the petitioner seems to be more aggrieved of the transfer of land to DLF, rather than of the acquisition itself, which is also an unfounded grievance.
110. The factum of DLF having played an important role in the development of Gurgaon and towards the citys' emergence as a Corporate hub in the country, with the Company having purchased land from the open market and having developed upon it after obtaining requisite licences for change of land use, has also been stated in the VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -36- reply.
111. As regards the allegations that the entire acquisition and transfer of land has been made only to facilitate DLF to obtain the Panchayat land contiguous to the land already purchased from the open market, it is stated in the States' Reply that apparently the fact that the land is adjacent to DLFs' privately acquired land, would obviously have been a major reason for the Companys' keen interest in participating in the bid process and wanting to succeed in the same. However, the allegation of collusion and colourable exercise powers by the Government, on this count also, have obviously been denied.
112. The fact that the public purpose for which the land was acquired not having been changed, the project still being one for development of leisure and re-creational purposes, has been time and again reiterated, along with the contention that the land was never acquired at the behest of DLF and would still remain a part of the green lung of the area.
113. Yet further augmenting his arguments by referring to the reply, the Advocate General addressed arguments to the effect that there was due application of mind by the government even with regard to the environmental question as per the directions of Hon'ble the Supreme Court in M.C.Mehtas' case (AIR 2004 SC 4016), inasmuch as, even though the notifications under Sections 4 and 5 of the Punjab Land Preservation Act, 1900, had expired in 1995, the government still had deliberations on whether or not the land in question should be treated as forest land in view of the Apex Courts' directions that the land notified under the Act of 1900 should be treated as forest land and would come VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -37- within the ambit of the Forest Conservation Act, 1980.
114. The learned Advocate General further pointed out that HUDA had specifically stated that it could not have developed the said land for the notified public purpose, i.e. development of commercial and residential sectors, in view of the fact that the land fell within the purview of the notification dated 7.5.1992 issued by the Central Government (in the Ministry of Environment and Forest), in respect of the Aravali Hills.
115. Mr. Hooda drew attention to the process of finalization of the project, with special reference to the reasons given in para 7.4 of the reply of the State which, as already given herein before, states that government agencies were restricted in implementing the project due to `capacity constraints and working practices of such agencies' the best option therefore, being to implement the project of creating a Leisure/Recreational facilities through the private sector. He stressed upon the fact that the decision to hand over the project to a private agency was accompanied with the condition that the selection of the private participant should be based on technical qualifications and financial capability of such participant and that a transparent system of inviting open competitive bids should be adopted. It was towards this end that the services of M/s Infrastructure Leasing and Financial Services (IL&FS) were engaged for publication of the documents containing the qualifying requirements in order to determine the `pre- qualification' of the bidders, the prescription of land uses and assessment of land price to be determine as a reserved price. Mr. Hooda stated that the land was eventually utilized as per the report submitted by M/s IL & VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -38- FS at the value determined by the said private agency, according to which the reserved price of the land was set up at a rate about 1 ½ times that of the Collectors' rates, i.e. at the market rate, which was accepted by the Board of Directors of HSIIDC.
116. Thereafter, despite a 'global melt down' the government eventually decided to go ahead with the project at the same recommendations made in the report of M/s IL & FS and did not revise the price downwards. Learned Advocate General emphasized that the process of tendering and eventual allotment as per the tendering process, was wholly and completely transparent which was obvious from the fact that none of those whose the bids were rejected due to technical non- feasibility, challenged the bidding process.
114. On the allegation that the acquisition was a colourable exercise of power, the Advocate General submitted that this allegation needed to be looked at from two aspects; first, with regard to the acquisition process and second with regard to the transfer to DLF being vitiated by any such colourable exercise of power.
115. As regards the acquisition process, he reiterated that there was no challenge to the procedure as such, and as such the challenge itself did not lie and in any case, not by a person who challenged the acquisition of 2006 in the year 2012.
116. As regards the transfer to DLF or even the allegation that the entire acquisition was made basically for the benefit of DLF, Mr. Hooda submitted that no specific allegation of malafides had been raised against any specific individual to state that they had exercised influence in favour of DLF for any kind of extraneous consideration. As a matter VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -39- of fact, the purpose of acquisition was decided by a policy decision taken in the year 2003 with no challenge thereto and now only the manner of execution is being challenged, giving it a different colour. As such, the petitioner has no case whatsoever, as no material has been placed on record to show that there was a bias favour of DLF, despite the transparent procedure adopted.
117. He next argued that the judgment in the case of M/s Royal Orchid Hotels Limited and another (supra) and other judgments cited by the petitioner were not applicable to the present case and were distinguishable, because the transfer of land to DLF was not a case of acquisition in order to favour a private company, but one where a transfer agreement was made only after inviting global tenders and going through a wholly transparent process of inviting such tenders and bids.
118. Moreover, the fact that the land was actually sold to DLF at a price more than three times the price at which it was acquired, as per the compensation awarded by the Land Acquisition Collector, proves, as per the learned Advocate General, that there were absolutely no malafides involved in the entire process of either, acquisition, or in inviting private participation and eventual transfer of the land to respondent No.6.
119. He next contended that even after the project was implemented by the said respondent, it would still be a source of revenue to the Central Government as well as to the State exchequer in terms of foreign exchange earned and taxes imposed by the State. As such, it was not simply just a short term gain but a perennial source of revenue to be VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -40- generated by the company.
120. As regards the writ petitions in which the petitioners had challenged the acquisition of their own land, Mr. Hooda submitted that firstly they have also come against an acquisition of the year 2006 only in the years 2012, 2013 and 2014 and as such their writ petitions should be dismissed on the ground of delay and laches alone, other than the fact that the land, having been acquired by proper procedure established by statute, there could be no challenge to the utilization of the land for a public purpose only on the ground of individual need. In other words, individual need would have to subserve and give way to larger public interest as per law well settled.
121. The other contention of the learned Advocate General, with regard to the challenge by private owners to the land acquisition, was that, like the petitioners in the two PIL petitions, the other petitioners have also not joined proceedings before the Supreme Court where the issue on the environmental impact of the utilization of the land in question is pending. Hence, the argument is that the petitioners having chosen to only challenge the acquisition etc. before this court, despite pendency of a related issue before the Supreme Court, the writ petitions are not maintainable.
122. He further submitted that since there was no prohibition of acquisition of land vested in a Gram Panchayat, therefore, the acquisition proceedings qua such land were wholly legal and valid, hence, the applicability of the Punjab Common Village Lands (Regulation) Act 1961 did not arise, the land having been divested from the ownership of the Gram Panchayat and thereafter standing vested in VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -41- the State and its agencies.
123. With regard to the allegation by all petitioners that the perpetual transfer of ownership to DLF of 350 acres of prime land transgresses any Public-Private-Partner (PPP) Scheme between Government and the private sector, learned Advocate General submitted that a one time creation or development of a project by the private sector, would not serve the purpose of the project, as the maintenance thereof would be required in perpetuity, for which the private sector was far better equipped, keeping in mind the kind of project that it was. This was in addition to the fact that the sale of the land provided large revenue to the State and its agency, as also ensured long term continuous gains in the form of taxes etc., from the project proponent.
124. Before winding up his arguments, the Learned Advocate General submitted that the land was actually acquired in the year 2006 with proceedings having been initiated in 2003, for the purpose of development of Recreational/Leisure Project and other public utilities and it vested in the State after completion of the acquisition proceedings, after which the best utilization of land was to be determined by the Government, which it has duly done. In other words, there is no violation of any statute, either in the acquisition proceedings or in the subsequent utilization of the land even keeping the purpose of acquisition in mind.
125. Lastly, in support of his arguments, the learned Advocate General relied upon various judgments, primarily upon Sooraram Pratap Reddy and others vs. District Collector, Ranga Reddy District and others, (2008) 9 SCC 552, which was cited by him to cover various VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -42- aspects of his arguments, as also the judgment in State of Uttaranchal vs. Balwant Singh Chaufal and others, (2010) 3 SCC 402, on the issue of maintainability of the petition as a public interest litigation.
126. Other than the above, Mr. Hooda cited the following judgments:-
On maintainability/locus
1. (2006) 6 Supreme Court Cases 180, Kushum Lata vs. Union of India and others ;
2. (2002) 2 Supreme Court Cases 333, Balco Employees' Union (Regd.) vs Union of India and others;
3. (1996) 6 Supreme Court Cases 734, S.P.Anand, Indore vs. H.D.Devegowda and others;
4. (2007) 10 Supreme Court Cases 614, Neetu vs Sate of Punjab and others;
5. (2005) 1 Supreme Court Cases 590, Dattaraj Nathuji Thaware vs. Sate of Maharashtra and others; Delay and laches
6. (2010) 4 Supreme Court Cases 532, Sawaran Lata and others vs State of Haryana and others;
7. (1984) 2 Supreme Court Cases 624, Hari Singh and others vs State of UP and others;
8. (1975) 4 Supreme Court Cases 285, Aflatoon and others vs Bahadur;
9. (1996) 11 Supreme Court Cases 501, Municipal Corporation of Greater Bombay vs. Industrial Development Investment Co. Pvt. Ltd. and others;
10. (1996) 6 Supreme Court Cases 445, State of Rajasthan and others vs. D.R.Laxmi and others;
11. (1997) 2 Supreme Court Cases 627, C.Padma and others vs Dy. Secretary to the Government of T.N. and others; VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012
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12. (2003) 8 Supreme Court Cases 567, Chairman and MD, BPL Ltd. vs S.P.Gururaja and others Maintainability of the writ petition after passing of the award and when no objections were filed under 5A and doctrine of `Stare Decisis'
13. (2000) 2 Supreme Court Cases 48, Municipal Council, Ahmednagar and another vs. Shah Hyder Beig and others;
14. (2008) 4 Supreme Court Cases 695, Swaika Properties (P) Ltd. and another vs. State of Rajasthan and others; Policy/Judicial Review
15. (20062) 10 Supreme Court Cases 337, Ekta Shakti Foundation vs. Govt. of NCT of Delhi;
16. (1997) 7 Supreme Court Cases 463, Union of India and another vs. G.Ganayutham; and
17. AIR 2006 Supreme Court 980, Rameshwar Parshad vs Union of India."
127. The above, thus, concluded the arguments of the State by the Advocate General.
128. Other than the detailed reply of the Government, the Municipal Corporation (respondent no.7 in the lead case) has also filed a short reply, essentially holding itself as a concerned party only to the extent that the land in question, along with the land of 46 other revenue estates, was notified to be included in the Municipal Corporation area, vide notification dated 2.6.2008 and as such the Municipal Corporation, Gurgaon, is a successor to the Gram Panchayat of village Wazirabad and has claimed that any benefit accruing from the litigation, in respect of the land, would now be payable and recoverable by the Corporation.
129. The short reply on behalf of HUDA (respondent no.5), in essence, also states what has already been stated in the Government VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -44- reply.
130. Though the HSIIDC had adopted the reply of the State, Mr.Rajiv Atma Ram, learned Senior Advocate, addressed detailed arguments in addition to those made by the Advocate General.
131. Mr. Atma Ram first drew attention to the contents of paras 15 and 16 of the writ petition to repeat what was argued on behalf of the State, that there was neither any challenge to the policy decision of the government to invite international competitive bids for executing the project, nor to the acquisition proceedings themselves.
132. He further submitted in this regard that had there been no transfer of HUDA land to the HSIIDC, the petitioner would not have been aggrieved by the acquisition itself, even though the writ petition purports to challenge the acquisition itself.
133. Learned Senior counsel next contended that the Municipal Corporation, Gurgaon, having stepped into the shoes of the Gram Panchayat of Village Wazirabad in the year 2008, the former is obviously not at all aggrieved of the acquisition of the land which would have naturally gone to it and has accepted the same, but has only filed a Regular First Appeal in this court, seeking enhancement of compensation awarded by the LAC and by the Civil Court, on an application made under Section 18 of the Act.
134. Mr. Atma Ram submitted that other than the fact that the land was first acquired and then subsequently transferred 3 to 4 years later to DLF, the fact is that the land would now revert to the Municipal Corporation and not to the Gram Panchayat, even if the petitioners contention is accepted. That would also mean that provisions of the VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -45- Punjab Village Common Lands (Regulation) Act are not applicable, the Gram Panchayat being no longer existent, or at least not in control of Municipal land.
135. He next contended that the petitioners of the petitions other than the one filed by way of PIL, are owners of only 4.4 acres of land and together with those person who seek to intervene in the PIL, own 10.9 acres of land, with all these holdings being scattered in different pockets of the entire project land.
136. He further submitted that thus, for 10 to 15 acres of land owned by private landowners, out of the 350 acres of land acquired, only 7 of the 26 land owners had come before this Court by way of the present petitions, other than the PILs, and 19 had chosen to accept the acquisition of their land after payment of compensation.
137. While raising his objection on the issue of delay and laches, Mr. Atma Ram pointed to paragraphs 16 and 20 of the judgment in M/s Royal Orchid Hotels Limited and another (supra), which run as under:-
"16. The first question which needs consideration is whether the High Court committed an error by granting relief to respondent No. 1 despite the fact that he filed writ petition after long lapse of time and the explanation given by him was found unsatisfactory by the learned Single Judge, who decided the writ petition after remand by the Division Bench.
xx xx xx
20. In Shankara Cooperative Housing Society Limited v. M. Prabhakar and others, (2011)5 SCC 607, this Court VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -46- considered the question whether the High Court should entertain petition filed under Article 226 of the Constitution after long delay and laid down the following principles:
"(1) There is no inviolable rule of law that whenever there is a delay, the Court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts.
(2) The principle on which the Court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because Court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners.
(3) The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy. (4) No hard-and-fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts.VIKAS CHANDER
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138. Learned Senior counsel, thus, submitted that even though in M/s Royal Orchid Hotels Limited and another (supra), it was held that there was no delay, in the present case, the petitioners' only excuse for the delayed challenge is that his applications under the Right to Information Act were not answered within time, which is not a tenable reason for non-challenge within a reasonable time of the acquisition as well as after the bidding process was advertised in 2009.
139. Mr. Atma Ram then drew attention to sub-Clauses (iii) & (vi) of Section 3(f) of the Act of 1894 to submit that the expression "public purpose" is of wider amplitude and deserves liberal construction. He referred to the judgement in Sooraram Pratap Reddy & Ors. (supra) in particular its paragraphs 43, 66, 67, 79, 81, 82, 84 to 87, 90, 118, 119, 129, 130 to 134. In the cited decision, the Apex Court has explained the concept of 'eminent domain' to mean the right and power of a sovereign State to take private property for public use without the owner's consent upon payment of just compensation. It was held that the Appropriate Government may acquire land for any 'public purpose' as illustratively defined in Clause (f) of Section 3 of the Act and that the expression "public purpose" as defined in the Act is merely illustrative and not exhaustive.
The inclusive definition does not restrict its ambit and scope. It was observed that the 'public purpose' is thus wider than a 'public necessity'. Purpose is more pervasive than urgency. The Apex Court also referred to the Tenth Report of the Law Commission of India on the meaning of 'public purpose' which says that:-
VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012
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140. The above-cited decision also lays emphasis on the importance and primacy of the policy decision laying down guidelines for attracting and facilitating private investment in infrastructure, namely, the object kept in view by the State of Andhra Pradesh while enacting the Andhra Pradesh Infrastructure Development Enabling Act, 2001. With reference thereto, the Supreme Court relied upon its earlier decision in Dhampur Sugar (Kashipur) Ltd. v. State of Uttaranchal & Ors. (2007) 8 SCC 418, where it was observed that:- page 56 b to b "63. In our judgment, it is well-settled that public authorities must have liberty and freedom in framing policies. No doubt, the discretion is not absolute, unqualified, unfettered or uncanalised and judiciary has control over all executive actions. At the same time, however, it is well- established that courts are ill- equipped to deal with these matters. In complex social, economic and commercial matters, decisions have to be taken by governmental authorities keeping in view several factors, VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -49- and it is not possible for courts to consider competing claims and conflicting interests and to conclude which way the balance tilts. There are no objective, justiciable or manageable standards to judge the issues nor such questions can be decided on 'a priori' considerations".
(emphasis applied)
141. Sooraram Pratap Reddy & Ors. (supra) further holds that the question whether the acquisition is for public purpose or not, prima facie, has to be left to the wisdom of the Government and normally a writ court will not interfere by substituting its own judgement. It further held that since in the cited case, the land was acquired for infrastructure development project conceptualized by the State and executed under the auspices of its instrumentality and the amount was paid by the State agency who worked as nodal agency, the acquisition was indeed for a 'public purpose' and the challenge thereto was, thus, rejected.
142. On the issue of reversion of land to the land owners, Mr.Atma Ram referred to the judgment of the Supreme Court in State of Kerala vs. M. Bhaskaran Pillai, (1997) 5 SCC 432 and specifically to paragraph 3 thereof, which runs as under:-
"3. In view of the admitted position that the land in question was acquired under the Land Acquisition Act, 1894, by operation of Section 16 of the Land Acquisition Act, it stood vested in the State free from all encumbrances. The question emerges: Whether the Government can assign the land to the erstwhile owners? It is settled law that if the land is acquired for a public purpose, after the public VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -50- purpose was achieved, the rest of the land could be used for any other public purpose. In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utililsed for the public purpose envisaged in the Directive Principles of the Constitution. In the present case, what we find is that the executive order is not in consonance with the provision of the Act and is, therefore, invalid. Under these circumstances, the Division Bench is well justified in declaring the executive order as invalid. Whatever assignment is made, should be for a public purpose. Otherwise, the land of the Government should be sold only through the public auctions so that the public also gets benefited by getting higher value."
143. He also referred to the judgment in V.Chandrasekaran and another vs. Administrative Officer and others, 2012(4) RCR (Civil) 588, and Tamil Nadu Housing Board vs. Keeravani Ammal and others, (2007) 9 SCC 255.
144. On the basis of the above, learned Senior counsel submitted that it would, in fact, not be in public interest to revert the land to the land owners, especially as a major chunk of it would in that case go back to the Municipal Corporation, which could, of course, utilize it towards public purposes, which purpose the land was being put to, even by the present project.
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145. He thus submitted that quashing of the entire acquisition cannot be done at the instance of the owners of only 4.4 acres of land or even 15 acres of land, even if the interest of the intervener is included.
146. Learned senior counsel for HSIIDC next relied upon the judgement in Tamil Nadu Housing Board v. L.Chandrasekaran & Ors. (2010) 2 SCC 786, wherein it was ruled in para 13 & 18 that nothing precludes the State Government or its agency to utilize the acquired land for a public purpose other than for which it was acquired.
147. With regard to the process of inviting international competitive bids, Mr. Atma Ram relied upon the judgment in Nand Kishor Gupta V. State of U.P. (2010) 10 SCC 282, to submit that as can be seen from the details of the tendering and bid process, from the details given in the reply of the State, the same were in consonance with the parameters laid down in the said judgment.
148. Finally, learned Senior counsel appearing for HSIIDC submitted that the Corporation (HSIIDC) was developing the entire belt from Delhi to Dharuhera on the border of Rajasthan, including Phases 1 to 6 of Gurgaon, with participation by way of `foreign investment' and as such, the present case was not an isolated one in which participation by private enterprise in the process of development of the region had been resorted to.
149. In this context, he reiterated that the Golf Course would actually serve a public purpose, in a city which has both, Indian and foreign multi national companies based, with residents thereby naturally requiring proper international standard infrastructure.
150. He concluded by submitting that the decision to sell the VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -52- land for the project having been reached by the government, exercising its power of eminent domain to take an executive decision, the court would not interfere in the realm of policy making.
151. Nothing specific, other than what has been already referred to from the short replies of the Municipal Corporation, Gurgaon, and HUDA was argued, except that which was submitted by the learned Advocate General and the learned Senior counsel appearing for HSIIDC.
152. We now come to the reply of the beneficiary of the land, i.e. by M/s DLF Ltd.
153. A preliminary objection has also been raised by this respondent with regard to the basic maintainability of the petition, either as Public Interest Litigation or even de hors that status.
154. The petitioners' bona fides have been questioned, among other reasons common to the objections taken by the State, also on the ground that he is a close associate of one Dharampal against whom an FIR has been registered on behalf of DLF, for allegedly creating false records. The said FIR is stated to have been registered on account of a notice having been issued by the counsel for Dharampal, who is also the counsel who initially filed the present petition. It has been stated that vide the said notice, the company had been "threatened" that Dharampal would invoke the jurisdiction of this Court by challenging the transfer of land to the company, in case the officials of the company continue to harass him and in case the "original position is not restored". As per the reply, since Dharampal would be a "suspect" petitioner, hence the petition has been filed through the present petitioner, Om Parkash Mukdam, and as such the petition actually has been filed only to settle a VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -53- personal score.
155. It is further alleged in the reply that even one of the connected petitions, CWP No.6553 of 2012, which has been filed on the same cause of action, with similar allegations contained therein, is also actually a proxy litigation for the said Dharampal.
156. An allegation has also been made that the petition has been filed at the behest of certain land grabbers supported by some competitor of DLF and as such it is only "proxy litigation", by such vested interests, in view of the fact that the success of DLF in Gurgaon, by the establishment of a DLF city etc and upon being awarded the "Best Global" award in the year 2009, is not obviously 'palatable' to such competitors.
157. Thus, like the official respondents, it is contended that the petitioner has actually no locus-standi to file the petition especially in view of the fact that the acquisition proceedings were finalized a long time ago and the allotment also stood concluded in the year 2010, and it was done with DLF being the successful bidder in an "international competitive bidding process", in which other bidders also participated.
158. The Principal of stare decisis is also sought to be invoked, on the ground that the land having vested in Government free from all encumbrances, no challenge can be made to acquisition proceedings and as such the writ petition should be dismissed both, on this ground, as also on the ground of delay and laches.
159. Another preliminary objection raised, as raised by the Advocate General also, is that an issue connected with the subject land is already sub-judice before the Hon'ble Supreme Court and as such the VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -54- petition before this Court is not maintainable; the reference again being to the environmental issue before the Apex Court in M.C. Mehta's case (supra) where an interlocutory application has been moved by the State, seeking permission to go ahead with the project.
160. A detailed reference has been made to the application filed by the State, in view of an earlier order of the Supreme Court in the main case before that Court and the order of the Court on the said application.
161. The copy of the application itself has been annexed with the reply, a perusal of which shows that the background and reasons for acquisition of the land and the project sought to be developed on it have been given, with specific reference to Gurgaon coming up as an industrial and commercial hub and the need for developing a "green lung" for the city, which is sought (in the application before the Supreme Court) to be compared with Hyde Park of London and the Central Park in New York.
162. The factum of the usage of land (about 92 acres) having been brought under the relevant provisions of the PLP Act and it consequently being a forest, even after the expiry of the notification under that Act, and about 161 acres land being a part of the Aravalli Project Plantation, has been given in the application, which further states that with regard to the land under the PLPA notification, it requires approval under Section 2 of the Forest Conservation Act, 1980, in view of the directions of the Apex Court, but the Aravalli Project, being a community project, is not recorded as forest in Government records and as such no clearance is required under the Act of 1980.
163. The application, as already stated earlier, seeks VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -55- permission/approval from the Hon'ble Apex Court for the applicant (State) to develop the land in question as a "World Class Eco-friendly, Green Re-creational and Leisure Project."
164. The Central Empowered Committee is also stated to have filed its report on 21.9.2010 before the Apex Court and it has been high- lighted in the reply before us that the committee has approved the project subject to the conditions imposed, including bearing the cost of compensatory afforestation, etc.
165. The reply of DLF thus states that as the entire situation is before the Hon'ble Supreme Court, this Court would not entertain the petition.
166. The reply further states that out of 350 acres of land allotted/ purchased, 284 acres, is in fact, "Gair Mumkin Pahar" and "Banjar Kadim", which is why it was considered feasible for the project by the Board of Directors of HSIIDC. Also, as 75 acres belonging to HUDA were contiguous to the land of the Panchayat, not being fit for agriculture nor other urban development operations/projects, this chunk was also added to the project.
167. The DLF reply also high lights the fact that the decision of the State Government to develop a re-creational and a leisure project was in view of the fact that it would also attract other entertainment and tourism projects, and other similar projects, as Gurgaon is contiguous to Delhi and already has a good infrastructure.
168. As regards the allegations made by the petitioner with regard to the project having been allotted to DLF in collusion with the Government, in order to be further developed as part of DLFs' VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -56- 'Magnolias' Project, it has been stated (as also stated by the Government), that 'Magnolias' is a separate project to that which is now proposed to be developed on the land in question.
169. In reply to other specific allegations made in the writ petition, respondent no.6 has also largely reiterated what has been given in the preliminary objections, stressing especially on the fact, that if the land had been acquired by following the procedure laid in para VII of the Act of 1984, revenue generated to the Government by DLF would have been almost nil, the entire compensation being payable to the land owners. On the other hand, with the land owners, including the Gram Panchayat, having been paid compensation as assessed by the statutory authority, i.e. the Land Acquisition Collector, the State and its agencies have further been benefited, as the sale price, by inviting bids from the open market, is three times the price that the land was acquired for.
170. Other than that, the factum of non-filing of objections under Section 5-A has been stated by this Respondent also.
171. It is further stated that of the Rs.1703 crores that is to be paid as consideration for transfer of the land to DLF, Rs.448,87,68,593/- were paid upto 9.8.2012 and the next installment of Rs.136.37 crores was due on 9.2.2013.
172. It is necessary to say here that at the time of arguments, both learned Senior Counsel appearing for DLF in two different petitions, have stated that about Rs.1000 crores has been paid by DLF up till now. The reply also states that the petitioner is giving a very narrow and pedantic meaning to the phrase "public purpose" which actually has a very wide magnitude and would cover all kinds of projects, including the VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -57- one being undertaken by DLF, it being a project to attract tourism and entertainment, which are also a source of revenue and have also been undertaken in other parts of the country.
173. Refuting the contention that the land could not be utilized contrary to the provisions of Section 5 of the Punjab Village Common Lands (Regulation) Act, 1961, or the rules/promulgated thereunder, it has been stated that there is no bar under the said provisions, which only regulate the use and occupation of land that vests or is deemed to have vested in a Panchayat, as has been provided in Section 5 thereof. The contention also, again, is that the land having been acquired for a public purpose, from the Panchayat, by the State, for one its Corporations (HSIIDC), it ceased to vest in the Panchayat and is, therefore, not within the purview of the 1961 Act.
174. The above narration concludes the contents of the pleadings, in the petition filed by way of Public Interest Litigation, with no replications to the replies having been filed by the petitioner.
175. However, an additional affidavit of the petitioner, dated 11.1.2013 and another one dated 7.2.2014 was also filed. The first was filed to specifically refute the allegation that the petition had been filed at the behest of the person named as Dharampal by respondent no.6, against whom an FIR has been registered on behalf of the respondent company.
176. In the affidavit dated 11.1.2013, it is stated that the deponent (petitioner) does not have any direct or indirect personal motive or interest in the case and that the petitioner has no connection with the said Dharampal, except to the extent that they are both residents VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -58- of village Wazirabad.
177. The affidavit further states that simply because the counsel who had filed the petition was also counsel for the said Dharampal, could not be taken to mean that the petitioner was in any manner connected to the said person. It is further stated stated that the notice said to have been sent by Mr. Narender Sura, Advocate, on 23.11.2011, on behalf of Dharampal to DLF, was meaningless as regards the connection attempted to be made between Dharampal and the petitioner, as Mr. Narender Sura had been counsel for the present petitioner much prior to the time of sending of the said notice, having represented him in several proceedings before the State Information Commissioner, Haryana, since 2010.
178. The other affidavit, filed subsequently by the petitioner, on 09.02.2014, first gives the details of the land exchanged by sister companies of DLF with the Gram Panchayat in 1997, and further seeks to clarify its position mainly in reply to the contentions raised by the respondents, though it has not been filed in the form of a replication to the reply of any particular respondent, or even jointly. Nonetheless, we shall refer to this affidavit when we would refer to the arguments made in rebuttal by the learned counsel for the petitioner.
179. We now proceed to the arguments of Sarvshri Mukul Rohtagi and Rajiv Nayyar, Senior Advocates, appearing for respondent No.6, i.e. for M/s DLF Ltd., in the different petitions.
180. Other than making the same submissions with regard to the delay and laches and the locus standi of the petitioner, including the possibility of his having been set up by competitors of DLF, both VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -59- learned senior counsel further reiterated what was argued by the learned Advocate General and Mr.Atma Ram, with regard to the bidding process being transparent and with regard to Rs.1700 crores being a good price for the land transferred, of which Rs.1,000 crores has been paid till now.
181. Additionally, even while relying upon the same judgment as relied upon by the other Senior counsel, i.e. Sooraram Pratap Reddy and others (supra), they both (in their separate but similar arguments), submitted that a policy decision of the government can only be challenged on grounds of arbitrariness and not otherwise. As such, the contention again is that the tendering and bidding process itself having been a wholly transparent one and the decision taken by the government to invite private participation also being in tune with the character of the city of Gurgaon, abutting the national capital and falling within the National Capital Region, there was no ground to accuse the government of any kind of arbitrariness in transferring the project land to DLF.
182. They further submitted that DLF having changed its position with the payment of Rs.1,000 crores, the petitioner cannot seek status quo ante as it existed prior to August, 2003.
183. They also contended that with the CEC having been constituted by the Supreme Court, this court and any other court was precluded from dealing with the environmental issue especially as the CEC had already recommended in favour of DLF before the Supreme Court.
184. Their next contention was that it would be stretching an idea too far to say that DLF influenced each government right since 2003 till 2010, to first initiate the acquisition process till its culmination, VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -60- and thereafter to initiate an open bidding process and in such process also ensuring that the land was allotted to the Company itself, especially as no other participant, or any other person interested in the project, has come forward to say that the tendering and bidding process was vitiated.
185. Hence, according to both learned Senior counsel, no malafides whatsoever could be attributed in the transfer of the land to the Company.
186. On the issue of delay in filing the writ petition challenging an acquisition process, they referred to the judgment in Aflatoon and others V. Lt. Governor of Delhi and others (1975) 4 SCC 285 (paras 19 and 20) as also to para 119 of Sooraram Pratap Reddy and others (supra).
187. Mr. Rohtagi, like other respondents' counsel, finally submitted that the land had been put to proper use towards a public purpose, which would be served both, by receipt of the high bid price and continued revenue receipts to the Government by way of taxes etc. from such a luxury project, as also by promoting the region as an area which had all the high end infrastructure needed to invite investment from within India and outside. Such land could otherwise, being Panchayat and municipal land, very well fall prey to encroachments as is the case in parts of Gurgaon, Faridabad and various other cities of the country, especially in the National Capital Region.
188. He also reiterated what Mr. Atma Ram had submitted with regard to the utilization of land falling within the definition of public purpose as given in Section 3(f) of the Act.
189. Additionally, Mr. Nayyar argued that part of the land in VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -61- question was first acquired in the year 1994 and thereafter as detailed by the Advocate General, by various proceedings ending in the last one in 2006. Also, the challenge to the transfer coming more than 3 years after the Ist tender was floated, he put a query as to whether the Court would entertain a petition more than three years after it was floated and a year and a half after it had been finalized with the impugned letter of allotment. He submitted that this delayed challenge pointed to the fact that the petitioners are motivated at the behest of an unsuccessful tenderer who himself would have been ousted on the ground of delay, if he/it had come at such a stage.
190. The other contentions being identical to those of the other respondents' counsel, are not being repeated. Mr. Nayar also submitted that when the Government had decided initially to float the project by entering into a Private Public Parnership, DLF was not even conceived as a partner. In fact, it only stepped into the picture when the tenders were floated and it answered that by way of its bid which was not initially accepted being that of a sole bidder, but was subsequently accepted in the second round of biding, with DLF still remaining as the sole financial bidder.
191. With regard to the 'Magnolias' project, Mr. Nayar submitted that the connection was wholly mis-conceived as that project of DLF is not contiguous to the present project and is located at a considerable distance.
192. Concluding his arguments, Mr. Nayyar also relied again upon the Interlocutary Application moved by the State before the Supreme Court to submit that the project itself was subject matter before VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -62- the Apex Court and as such unless the environmental issue is decided, the present litigation is mis-placed becuase if the project is not approved on account of any environmental issues, obviously the present petitions would be rendered meaningless. However, he also reiterated that the CEC appointed on directions of the Hon'ble Supreme Court, had recommended in favour of the project before the Court.
193. In rebuttal to the contentions of the learned counsel for the respondents, Mr. Makkar made submissions on behalf of the petitioner as follows.
194. First, with regard to his locus to file the petition by way of Public Interest Litigation, learned counsel submitted that the petitioner has no personal interest at all, as stated on affidavit and, as such, allegations to contrary have only been made by the respondents for the sake of making them, especially as nothing whatsoever has been shown by them even to indicate any personal interest of the petitioner in the Gram Panchayat land other than whatever personal interest would vest in an inhabitant of the village where the land is situated.
195. He further submitted that neither does the petitioner have a criminal background nor any other such antecedents which would cast a doubt on his bona fides. As regards the alleged connection with his co- villager Dharampal, who had issued notice through his counsel to DLF, Mr. Makkar reiterated the contents of the additional affidavit of the petitioner, to submit that other than having a common counsel and being a co-inhabitant of the village, there was no connection whatsoever between Dharampal and the petitioner. He further referred to the petitioners' subsequent affidavit dated 7.2.2014 to submit that the Public VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -63- Interest Litigation was filed only because "vital public property/land is sought to be sold by Big-wigs/colonizers in collusion with the public authorities by making unholy alliance" and that the petitioner being a strong believer of administration of justice and resident of the local area, could not "digest which is evil design and initiated RTI process so as to procure the relevant documents and prima-facie established before this Hon'ble Court as to how Gram Panchayat land has been grabbed and sold to private entities, which amounts to fraud upon the power of eminent domain of the State."
196. He further reiterated that the petitioner had already initiated RTI proceedings before Dharampal had issued notice to DLF and as such the filing of this petition was in no way relating to the litigation between Dharampal and DLF.
197. He further submitted that no doubt this was first time the petitioner was raising a public issue but that was because it was a issue connected directly with the village that he lived in and which disturbed his conscience enough to move the Court. This affidavit, to which Mr. Makkar drew special attention, also states that there was no question of the petitioner approaching the authorities on the issue, except by way of filing applications under the RTI Act, to obtain information, because as per his perception, the authorities were hand in glove with the colonizers.
198. Mr. Makkar further drew attention to Rules 2 and 6 of the Maintainability of Public Interest Litigation Rules, 2010 (of this Court) and submitted that even though the rules are directory and not mandatory, however even taking them to be mandatory, the petition very VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -64- much falls within the parameters laid down within the rules for the maintainability of the Public Interest Litigation. He further submitted that the petitioner had, along with the petition, filed his sworn affidavit stating that he has no personal interest in the land belonging to the Gram Panchayat other than fact that he is an inhabitant and proprietor of village Wazirabad and as such, the requirement of Rule 2 was fully met with. It was due to this that the Registry of this Court had, after accepting the clarification to an objection raised by it, accepted the petition and listed it for hearing as required by Rule 7 of these Rules.
199. Further referring to Rule 6(f) of the 2010 Public Interest Litigation Rules, which stipulates that petitions complaining violation of human rights may ordinarily be entertained, reference was made to the decision of the Apex Court in Chairman, Indore Vikas Pradhikaran vs. M/s Pure Industrial Cock and Chem. Ltd. and ors. (2007) 8 SCC 705, to urge that the right to property has been held to be not only a constitutional right but also a human right (he referred to paragraphs 54 and 56 of the said judgment).
200. Learned counsel further drew attention to the judgments in Smt.Shrisht Dhawan Vs. M/s Shaw Brothers (1992) 1 SCC 534 and S. P. Chengalvaraya Naidu vs Jagannath (1994) 1 SCC 1, to submit that where a fraud had been played would vitiate all acts and the Court would look into it regardless of any technical issues of maintainability of the petition, etcetra.
201. Further submitting with regard to the maintainability of the petition, learned counsel quoted from para no.26 of the judgment in M/s Holicow Pictures vs. Prem Chandra Misra AIR 2008 SC 913, where VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -65- it was held as under:
202. "It is true that in certain cases though the Court comes to the conclusion that the writ petition was not in a public interest, yet it finds there is scope for dealing with the matter further in greater public interest, it can be done. This can be done by keeping the writ petitioner out of picture and appointing an amicus curiae. This can only be done in exceptional cases and not in a routine manner."
203. On the issue of non-filing of objections under Section 5-A of the Act, the judgment in Scindia Employees Union vs State of Maharashtra (1996) 10 SCC 150, was cited to contend that an interested person is one who claims compensation in an acquisition and since the petitioner is not claiming any compensation in the acquisition of the Gram Panchayats' land, he could not have filed any objections.
204. Learned counsel further referred to the judgment in I. R. Coelho vs State of Tamil Nadu (2007) 2 SCC 1, to submit that even with regard to the right to property, non-availability of cause of action based on breach of a fundamental right cannot be regarded as an exclusive ouster of judicial review.
205. Hari Ram vs. State of Haryana (2010) 3 SCC 67, was also pressed into aid to submit that "...if this Court does not correct the wrong action of the State Government, it may leave citizens with the belief that what counts for the citizens is right contacts with right persons in the State Government and that judicial proceedings are not efficacious." [reference para 43 of Hari Ram's case (supra)].
206. As regards the delay, Mr. Makkar submitted that since the petitioner could not file a half baked petition, he obviously had to await VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -66- the information sought by him under the RTI Act and since that process eventually culminated only in 2011, there was no delay in filing the petition, it having been filed on the 8th of February, 2012.
207. The allegations made in the petitioners' affidavit dated 7.2.2014 with regard to the fact that the land acquired and now being transferred to DLF on free-hold basis by the HSIIDC, actually comprises of land which was earlier got exchanged by DLF's sister concerns and a Director of DLF, namely, M/s Vikalpa Agro Industries Private Ltd., New Delhi, M/s Dharam Land Agro Industries Ltd. New Delhi, M/s Visram Agro Farm Private Ltd, New Delhi, M/s Vidur Private Ltd., New Delhi, M/s Parshant Krishi Udyug Private Ltd., New Delhi and Shri K. P. Singh, 14 Aurangzeb Road, New Delhi, were reiterated.
208. As per the affidavit, the exchange of DLF land with that of the Gram Panchayat of village Wazirabad was sanctioned by the Government on 15.9.1997, vide an order of that day, annexed with the affidavit.
209. This order was challenged vide CWP No.8186 of 1998 and the same was upheld by the learned Single Judge as also in LPA by the Division Bench, vide judgment dated 5.2.2010 and an SLP is stated to be pending against the said judgment.
210. As such, it is the petitioners' specific case that the land which was sought to be re-transferred to DLF originally belonged to DLF but was subsequently transferred to the Gram Panchayat in exchange of the Panchayats' land. Thus, the Panchayats' original land which was exchanged with DLF as also DLFs' original land which was given to the Panchayat in exchange, now both have become the property VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -67- of DLF; therefore, the whole process of acquisition and transfer was wholly orchestrated to benefit DLF.
211. Mr. Makkar yet again, in rebuttal, drew attention to the fact that M/s Infrastructure Leasing & Financial Services were engaged as the consultant for preparation of documents containing the qualifying requirements for the pre-qualification of the bidders, prescription of land uses and assessment of land price. The allegation in the affidavit of the petitioner is that IL & FS is the same company which has been a business partner of DLF since long and had entered into a joint venture agreement in 2008 for the construction and operation of the Gurgaon Metro Project and for the execution of several other projects, including construction of sector roads etc. Thus, the specific allegation is that even the consultant company which prepared the pre-bid criteria was actually a partner of DLF in various projects and thus, would serve DLFs' interests first and foremost.
212. With regard to the contention of learned counsel for respondent no.6 that DLF has changed its position and to its detriment by payment of Rs.1000 crores and as such no prejudicial order could be passed against it, Mr. Makkar submitted that the schedule of payments as given in the impugned Letter of Allotment dated 9.2.2010, showed that the total amount of Rs.168,76,68,338/- (there is some variation of Rs.4.24 crores, with the figure of Rs.173 crores), had to be paid by DLF up till six and half years from the date of issuance of the RLA, i.e. up till 9.2.2017, by half yearly installments. As such, up till 9.2.2012 only Rs.123.08 crores had been paid, including the earnest money, after which each half yearly installment of an amount of Rs.136 crores VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -68- (including interest) was to be paid, except for the last one and a half years from 9.8.2015 to 9.2.2017, when approximately Rs.170 crore to Rs.175 crore installments were to be paid.
213. He further submitted that since the Letter of Allotment allowed DLF to create third party rights by sale of commercial and residential property, even prior to the complete payment of the bid money, the installments were well taken care of. Though, he further submitted, that no doubt such third party rights could not be created without the prior written consent of HSIIDC, however according to him that was a mere formality because as per Clause (f) of Clause VII of the Letter of Allotment, the company had been allowed the flexibility of booking the sale/lease of the residential/commercial/institutional space at the development stage itself, so as to provide for a "revenue stean."
214. As such, learned counsel for the petitioner contended that DLFs' own financial position would not change as it would be earning revenue by pre-booking flats/plots etc.
215. In this regard, he further submitted that since the character of land had not changed as yet, due to non-construction on it, in view of the fact that the environmental issue was pending before the Hon'ble Supreme Court and because of the stay order of this Court dated 13.8.2012, the land could very much be reverted to the Municipal Corporation, Gurgaon, i.e. the successor institution of the Gram Panchayat.
216. With regard to the provisions of the Punjab Village Common Land (Regulation), 1961, Mr. Makkar refuted the contention of learned counsel for the respondents, firstly on account of the fact that VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -69- when the acquisition proceedings were initiated and even at the time of their culmination in the year 2006, the Gram Panchayat was very much in existence and it is the only later that the area falling within the Gram Panchayat was included in the Municipal Corporation area, in the year 2008.
217. Hence, Mr. Makkar concluded, in view of the entire chain of circumstances, valuable public land needs to be protected from transfer, in perpetuity, to a private interest.
218. With the above, arguments on behalf of all parties to the litigation stand concluded.
219. The issues thus, to be adjudicated upon by us, are as follows:-
i) Maintainability of the petition in the light of the fact that the environmental issue pertaining to the land in question is sub judice before the Supreme Court;
ii) The locus standi of the petitioners to challenge the acquisition of the land of the Gram Panchayat, both by way of public interest litigation, as also by those whose land has been acquired;
iii) The question of any delay in the filing of any of the petitions and the effect thereof;
iv) The legality and validity of the acquisition proceedings themselves, including whether such proceedings are vitiated due to non-compliance of the procedure set down in Part 7 of the Land Acquisition Act, 1894;
v) Whether the allotment of the land in question, the major chunk of which vested in the erstwhile Gram Panchayat of Village VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -70-
Wazirabad, is vitiated by any malafide exercise of power by the official respondents, in transferring such land to a Company in the private sector;
vi) If the allegation on the issue of malafides is found to be correct, then would the acquisition itself be liable to be quashed?
220. We would deal with the first two issues separately and the remaining together, they being interlinked as would be seen.
221. Therefore, coming first to the issue of maintainability of these petitions, especially the PILs, in view of the pendency of the issue of the environmental impact of utilisation of the land (and related issues, including forest coverage etc.), before the Hon'ble Supreme Court.
222. Though all counsel for the respondents would have us stay our hands on the entire matter, in view of the fact that the respondent- State has filed Interlocutory Application No.2858 of 2010 in M.C. Mehtas' case (supra), to our mind the issues before us are not the same as the one before their Lordships of the Supreme Court. Of course, the environmental issue was also raised in two of these petitions, however, the main thrust of the petitions is not on the impact that the project could have on the environment or even with regard to any forest coverage having been reduced, but mainly on the question of transfer of the project to DLF by the official respondents.
223. Thus, obviously, we would not and cannot hear any question or challenge to the maintainability of the project itself, qua the question of its impact on the environment and related issues. Obviously, in case their lordships hold that the project itself is not to be executed in view of the impact on the environment, or with regard to loss of forest VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -71- coverage or any other such matter, as is before the Apex Court for adjudication, the subsequent transfer of the land etc. and the issue of the effect of the judgment upon such transfer of the land would also, naturally, be raised at that stage, before the Supreme Court.
224. We are only required to see as to whether, firstly, the acquisition of land was bad for any reason and whether the transfer of land to DLF is vitiated for any reason, other than reasons related to the environmental impact of the project etc. Thus, if we hold either the acquisition itself to be bad for any reason or, alternatively, only the transfer to DLF to be unsustainable, then naturally, subject to any appeal that may be filed against such order, maintainability of any such project on the touch stone of the environmental impact etc., would still be before the hon'ble Supreme Court.
225. If, on the other hand, we hold that the acquisition and the transfer are not vitiated by malafides or for any other reason, similarly, the environmental issue would still be alive before the Supreme Court and the project itself then would be obviously subject to whatever is held by their lordships on the issues before them.
226. Again, if the Supreme Court were to hold that the project is not in conflict with any environmental issue and any related issue, the matters which we are proceeding to decide, would nevertheless still remain alive. As such, we are obviously required to adjudicate upon them. We, therefore, proceed to do so.
227. Coming to the question of locus standi of the petitioners who claim to have filed the petitions pro bono and in public interest, it may be true that a vital jurisdiction in public interest is invariably abused VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -72- by busy bodies and intermeddlers to settle their personal score for oblique motives or they lend their shoulders to the invisible litigants, who often have hidden agendas. We are of the view that these vital considerations must be kept in view by the Court at the threshold when a public interest litigation is entertained. In the instant case, notwithstanding the objections raised by several respondents questioning the locus and bona fide of the petitioners, the writ petitions were entertained, pleadings are complete, records were summoned from time to time and learned counsel for the parties have been heard at length on merits. It may thus be not expedient or prudent to reject the petitions on a preliminary score. Secondly, we feel that the petitioners do qualify on the parameters laid down by the Hon'ble Supreme Court in
(i) Dattaraj Nathuji Thaware vs. State of Maharashtra, (2005) 1 SCC 595; (ii) State of Uttaranchal vs. Balwant Singh Chaufal & Ors. (2010) 3 SCC 402. There is no reliable material to suggest that the petitioner in the lead case is either a busy body or publicity seeker or an impersonator who has been planted by any business rival of the sixth respondent. We are thus not inclined to reject the petitions for want of locus standi.
228. Similarly, the allegation by the respondents that the petitioner, even being a resident of Village Wazirabad, has actually been set up by some vested interest to file the petition as a "proxy petitioner"
and is consequently divested of locus in a PIL, is too vague and unsubstantiated an allegation to be accepted.
229. While the possibility of such vested interest working in the background can never be ruled out, especially when the land in question VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -73- is obviously of very high financial value; however, no material whatsoever, has been shown to us, to make good that allegation by the respondents.
230. The allegation made by respondent-DLF that the petitioner was actually standing in for one Dharampal with whom DLF had some litigation, though otherwise again may be a possibility, especially as the counsel who originally filed CWP No.2367 of 2012 was admittedly the same counsel who also stood for, or at least issued notice on behalf of Dharampal, to DLF; however, the petitioner has annexed along with this affidavit dated 11.01.2013, a list of 218 cases (mainly Regular First Appeals in land acquisition proceedings), stated to be instituted by the same counsel (Sh. Narinder Sura) on behalf of different inhabitants of Village Wazirabad, during the period 2009-12.
231. As such, the said learned counsel obviously being somebody whom the inhabitants of the village regularly turn to for representing them in litigation of various kinds, we find it no great surprise that the petitioner and the said Dharampal, both engaged the same counsel in respect of their litigation even against a common private respondent, i.e. DLF.
232. Having said that, we again reiterate that the possibility of some understanding or some collusion between any two persons, with regard to an issue affecting them and other co-inhabitants of the village, cannot be ruled out; however, merely becuse of the possibility of such a position existing, with no material to show any actual collusion to that effect, we are unable to accept in any manner the allegation made by the respondent, that the petitioner is standing as a proxy for some other VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -74- vested interests.
233. As regards the contention of the respondents that he does not meet the criteria laid down in the Maintainability of Public Interest Litigation Rules, 2010, framed by this Court, we find nothing in that regard, to dis-entitle him from filing a Public Interest Litigation of the kind that he has filed. Rule 2, which was specifically cited on behalf of the respondents, reads as under:
"2. No Public Interest Litigation shall be entertained by the Registry unless the petitioner has specifically disclosed his credentials and his direct or indirect personal motive or interest involved in the case, if any, by way of an affidavit."
234. As we can see, the petitioner in the lead case has filed his affidavit to the effect that he is a bonafide inhabitant and one of the proprietors of village Wazirabad, who has no personal interest in the land belonging to the Gram Panchayat except that he is such inhabitant and proprietor who is filing the petition as Public Interest Litigation.
235. Therefore, we find the argument to be devoid of merit.
236. The issue of delay in filing the petitions raised by the respondents, we shall deal with after examining the main contentions of the petitioners.
237. We, therefore, come to the main issue of whether, firstly, the transfer of land by sale, to DLF, is vitiated by fraud or any malafides and whether, on account of such malafides, even the acquisition proceedings themselves are vitiated, being part of a well thought out, though long drawn process, by which the land was actually acquired in order to eventually transfer it to DLF. In such a case, obviously, as we VIKAS CHANDER have observed, even the acquisition itself would be liable to be struck 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -75- down, having actually been made for a 'non bonafide public purpose'.
238. We would first refer to the judgment relied upon heavily by counsel for all the petitioners, to submit that where the land is eventually transferred to a private entity, after its acquisition, purportedly for a public purpose, such acquisition itself cannot sustain. Mr. Makkar and other counsel referred first to the judgment of the Hon'ble Supreme Court in the case of M/s Royal Orchid Hotels (Supra).
239. In the above cited case (M/s Royal Orchid Hotels), a Division Bench of the Karnataka High Court came to a fact finding that the land was acquired by the State Government at the instance of Karnataka State Tourism Development Corporation for the specified purpose of setting up a golf-cum-hotel resort near Bangalore Airport. However, even before taking possession of the acquired land, the Corporation negotiated with a private person (Dayananda Pai) and entered into an agreement on 08.05.1987 whereas the possession was taken on 12.11.1987. Under the agreement, the land was given to Dayananda Pai, prompting the affected landowners to question the public purpose of acquisition. It is pertinent to mention that Dayananda Pai had earlier entered into an agreement to sell with some of the landowners on 30.09.1981, i.e. less than three months before the State Government issued notification dated 29.12.1981 under Section 4 of the Act. The Corporation and the District Administration were found to have acted under the diktats of Dayananda Pai, therefore, the High Court held that the power of eminent domain used against the landowners was surrendered before an individual. It was a case of indirect acquisition of land for Dayananda Pai. Consequently, the acquisition was set aside. The decision of the Karnataka High Court was upheld by the Apex Court. VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012
& connected cases -76-
240. Other than the above, great emphasis was laid on the judgment of the Apex Court in Greater Noida Industrial Development Authority v. Devendra Kumar and ors. (2011) 12 SCC 375, decided on 06.07.2011.
241. In that case, 153.903 hectares of land was acquired for planned industrial development in District Gautam Budh Nagar, through the Greater Noida Industrial Development Authority (G Noida). Subsequently, about 90 hectares of this land was allotted to different building companies. The acquisition took place in the year 2009 by invoking the emergency provision under Section 17 of the Act, which was read along with the declaration under Section 6 on 09.11.2009, immediately before which a committee gave a favourable report on a proposal to change the land user from industrial purposes to housing, which was approved by the Board concerned. The acquisition process came to be challenged on the ground of being an arbitrary, malafide and colourable exercise of power by the State, on account of both, the fact that emergency provisions had been invoked, and that eventually the land was transferred to some Companies.
242. The Allahabad High Court, on the basis of record produced by the State, came to a conclusion that the sequence of event showed that the land was never intended to be put to industrial use, but always for residential use, with a motive to bring profit to private building companies.
243. Again upholding the judgment of the High Court, by which the acquisition proceedings were quashed, the Hon'ble Supreme Court, by also quoting from its earlier judgment in State of Punjab v. Gurdial VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -77- Singh (1980) 2 SCC 471, observed as follows:-
"Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power - sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfactions - is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfillment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in law when he stated; "I repeat ...... that all power is a trust - that we are accountable for its exercise - that, from the people, and for the people, all springs, and all must exist". Fraud on power voids the order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to effect some object which is beyond the purpose and intent of the power, whether this be malice-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power or VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -78- extraneous to the statute, enter the verdict or impel the action, mala fides or fraud on power vitiates the acquisition or other official act."
(emphasis supplied)"
244. Now when we compare the present cases' situation to the above, though we do not see any absolute parallel between the two judgments cited above and the present cases, as much as nothing on record has been brought to our notice or has come to our notice on scrutiny of the record, that respondent no.6 was active in the decision making process to acquire the land, in a manner that Dayananda Pai was shown to have influenced the decision to hand over the land to him, however, we are not wholly unimpressed by arguments of learned counsel for the petitioners also. No doubt, it is undeniable that the compensation of acquired land has been paid by the State Government or the Government-run Corporation or Statutory Authority (HUDA).
The acquired land has remained in the hands of State Government for 4 years, free from all encumbrances, before making the impugned allotment. The principles laid down by the Apex Court in Sooraram Pratap Reddy & Ors. (supra) are thus also close to the facts of the case in hand and are fully attracted so far as the acquisition of land for the notified public purpose is concerned. We may, however, hasten to add that the acquisition of land for a 'public purpose' on one hand and its final utilization for the purported public purpose on the other, are two distinct and unrelated administrative decisions. A writ court can separately look into both, the decision-making processes without interrelating them to each other. The acquisition or its public VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -79- purpose thus, per se, calls for no interference by this Court.
245. We now proceed to examine whether the decision-making process for the net-end utilization of the acquired land, is transparent, just, fair and satisfies the settled parameters of judicial scrutiny. Though there is obviously apparent weight in the principal argument raised on merits, by all learned counsel for the respondents, that the process of identifying a project, acquiring land for it, deciding on the agency that would execute the project, after consultation with experts, then following an apparently transparent procedure of inviting bids and eventually transferring the land to the only bidder available; all point to the validity of the acquisition and the transfer, however, we are not, as we have said earlier, unimpressed by the argument raised on behalf of the petitioners that a large corporate entity, having a huge presence in the State, especially in the area of the NCR, would be in a position to exercise influence even over a period of time.
246. There is nothing obvious in black and white, to establish such a connection and as such we would not normally draw inferences on mere possibilities. However, we find ourselves unable to shut our eyes to the sequence and chain of events that led to the eventual transfer of the land.
247. The linkage which is too glaring to ignore, in our minds, starts with the fact that the land in question originally belonged to sister companies of DLF, as stated by the petitioner and is not refuted by the respondents, and was exchanged with that of the Gram Panchayat, Wazirabad, by a contentious process of, first, a resolution having been passed by the Gram Panchayat in favour of such transfer on 29.06.1991, VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -80- which was approved by the Government on 31.12.1991/02.01.1992. This decision, having been challenged by way of a civil suit, eventually came up in revision before this Court which was converted into a writ petition and finally the exchange was struck down on technical grounds with regard to the rules in question.
248. In the meanwhile, the Panchayat is stated to have declared void its earlier resolution dated 29.06.1991 on 25.10.1994 which was again cancelled by another resolution dated 30.05.1997, thereby reviving the first resolution, which was finally approved by Government on 15.09.1997. That decision was again challenged before this Court but was repelled by the Single Bench as also by the Division Bench, but nevertheless still remains sub-judice before the last Court.
249. Thus, land originally belonging to DLF/its "sister" companies, which came to the ownership of the Panchayat, was then identified by the government for acquisition for the purpose of creating a leisure/recreational project to enhance the corporate infrastructure in Gurgaon.
250. The above-stated Government decision, per se, reflects the State's policy and the same cannot be faulted with, especially when the "profile" of Gurgaon has swiftly changed to a large commercial hub with metropolitan culture. Any decision taken by the State to create modern day facilities to attract more investments in its 'commercial Capital', thus, does not call for any interference by way of judicial review. As is discussed a little further down, we obviously would not like to enter into this aspect, it being entirely in the realm of policy making, and in any case, in the context of the circumstances, we do not, VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -81- and even the petitioners actually have not been able to, seriously find any fault with the public purpose of the acquisition itself, which is only too obvious from the fact that nobody challenged the acquisition till such time as the land was transferred to DLF. In fact, none of the petitioners even filed objections as per Section 5-A of the Act, as admitted by all learned counsel.
251. Further, even though we are holding the initial ownership of land by DLF as a part of a chain of circumstances that raise a reasonable doubt with regard to the bona fides of the transfer, however, in the absence of direct material being available showing that the acquisition itself was influenced wholly by DLF, and more because all such land was being acquired to develop Gurgaon city, we would not like to hold the acquisition to be bad.
252. Possibly, such a challenge may not have been entertained even had it come during the acquisition proceedings or soon thereafter, in view of the fact that Gurgaon City was being and is being developed at a rapid pace, thus converting erstwhile rural agricultural lands falling in revenue estates of various villages surrounding the old city, into an urban Metropolis.
253. Having said the above, viz., that the conceptualization of the project itself, does not suffer with any illegality, it appears to us that further series of events and circumstances, eventually require a deeper analysis of the manner in which the Executive has attempted to achieve the above-mentioned public purpose.
254. After the acquisition of 275 acres of Gram Panchayat land for a recreational/leisure project, the government went through the VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -82- exercise of determining as to how the project could be executed. For this purpose, it engaged the services of M/s PGA Design Consultants Limited, who in their report, finally concluded that such a project should normally be undertaken in a private public partnership but could also be undertaken by the government or its agencies, if need be.
255. Thereafter, however, this report was over-shadowed and was supplemented by appointing M/s IL & FS as consultants, about 3 years later, who eventually recommended that the project be handed over to a private enterprise and, also in its recommendation, laid down the procedure that should be followed. This recommendation was accepted by the government and bids were invited, keeping a reserved price of Rs.11768/- per sq. metre for the sale, as already discussed.
256. The co-incidence of appointment of M/s IL & FS, which is a company admittedly involved along with DLF in various other projects, is too glaring to be ignored as we have already said.
257. No doubt, learned counsel for the respondents laid great emphasis on the fact that the two companies are wholly independent of each other, with no stakes in one company held by the other; still, the factum of the companies working in tandem with each other in various projects, is admitted.
257. This stage, in fact, is where the "paradigm shift" in favour of DLF took place, in our opinion, with M/s IL & FS being appointed as consultants, without any open process, but simply on a decision by the Board/Committee. Before that, of course possible undertones of the entire process being initiated to favour DLF may be discernible, but on that possibility alone, we would not strike down the acquisition itself, in VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -83- view of the fact, that it would have been inevitable for the development of the city, in any case, as we have said.
258. Going further, even these two factors, i.e. of the land originally belonging to DLF and M/s IL & FS being appointed as a consultant to recommend the parameters etc. for transfer of the land, by themselves may not have been enough to influence our thought process against the transfer.
259. The next factor in the chain of events, which is too co- incidental to our mind, is the ouster of the other two bidders at the stage of the technical bid itself. However, we shall dwell on that a little more, while summing up our reasoning, ahead.
260. The final reason which weighed with us, other than the above three factors in combination, is that despite the fact that the land has been transferred for a considerable sum of Rs.1703 crores, working out to a rate of Rs.4.86 crores per acre, this consideration is to be paid over a period of 8 years from the initial date of advertisement in January 2009 and about six and a half years after the issuance of the letter of allotment, in largely, bi-annual installments (except in the first two years), going up till February 2017.
261. Even if we take, in the absence of any material placed before us to the contrary, that the price of Rs.4.86 crores per acre was the correct market price in the year 2008-09, we cannot ignore what has been pointed out to us, that even with interest paid upto 2017, the price would still work out to be only marginally above this rate, i.e. slightly above Rs.5 crores, payable over a period of eight years from the date when such market price was first determined in late 2008. VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012
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262. We find it difficult to approve outrightly the perpetual transfer of a huge chunk of 350 acres of prime land falling in the heart of the National Capital Region to a private enterprise, at a rate which, as a lump-sum sounds extremely 'credit worthy', but eventually does not even factor in the normal increase in price for a period of eight years. That is not something which we can over look by any yardstick, seen together with the other circumstances.
263. All learned counsel for the respondents naturally, and correctly, laid great emphasis on the fact that this Court would not enter into the domain of policy making and the decision to sell the land, being a policy decision, was not impeachable by this Court.
264. However, even while quoting from judgements on this issue, we cannot accept what has been said in this regard by the respondents. Before we give the reason for the same, we first cite from two judgments, which set out the settled law on this proposition.
265. In Balco Employees' Union (Regd.) vs. Union of India (2002) 2 SCC 333, the Hon'ble Supreme Court referred to its three earlier decisions in (i) State of Punjab vs. Ram Lubhaya Bagga, (1998) 4 SCC 117 which pertained to validity of change of Government policy in regard to the reimbursement of medical expenses to its serving and retired employees; and (ii) Bhavesh D. Parish vs. Union of India, (2000) 5 SCC 471 which related to the change in the economic policy; and (iii) Narmada Bachao Andolan vs. Union of India, (2000) 10 SCC 664 and concluded that:-
"46. It is evident from the above that it is neither within the domain of the courts nor the scope of the judicial review VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -85- to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are our courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical."
266. The same position in law was reiterated in Villianur Iyarkkai Padukappu Maiyam v. Union of India (2009) 7 SCC 561, and it was ruled that :-
"169. It is neither within the domain of the courts nor the scope of judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are the courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. Wisdom and advisability or economic policy are ordinarily not amenable to judicial review. In matters relating to economic issues the Government has,while taking a decision, right to "trial and error" as long as both trial and error are bona fide and within the limits of the authority. For testing the correctness of a policy, the appropriate forum is Parliament and not the courts. "170. Normally, there is always a presumption that the governmental action is reasonable and in public interest and it is for the party challenging its validity to show that it is wanting in reasonableness or is not informed with public interest. This burden is a heavy one and it has to be discharged to the satisfaction of the court by proper and adequate material. The court cannot lightly assume that the action taken by the Government is unreasonable or against public interest because there are large number of considerations, which necessarily weigh with the VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -86- Government in taking an action."
267. Thus, we obviously need not cite any more on this issue. The question now is, whether judicial review of the transfer of land to the 6th respondent (in CWP No.2367 of 2012), would amount to transgressing our writ jurisdiction? We don't think so; for the reason that the factum of the land originally having belonged to DLF, having been exchanged with that of the Gram Panchayat, it being contiguous to other land belonging to DLF, the involvement of a company which is working with DLF in many projects (M/s IL & FS), even after another consultant had been earlier appointed for the same purpose, then DLF eventually remaining the sole bidder after the ouster of two other bidders at the technical bid stage and finally, transfer of the land at a price very marginally above the reserved price, in view of the fact that DLF was left as the sole bidder, and such price also being payable over a long period of eight years without factoring in (even with the interest payable on the principal) the normal increase in prices, is a continuous chain of events, even though over a period of six to seven years, we find too co- incidental to accept as a mere co-incidence.
268. Without a doubt, M/s IL & FS were engaged about three and a half years after M/s PG Consultants had given its report. Still, IL & FS was not chosen as the consultant by any open process but simply on a decision by the Board of Directors/HSIIDC/Government.
269. Again, no doubt the tendering and bid process was by inviting applications through advertisement and eventually there were only three bidders who actually made a serious bid. There is definitely substance in the arguments on behalf of the respondents that the two VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -87- consortiums that were ousted at the stage of the technical bid, have not come forward to challenge the ouster at any time. Possibly, and probably, DLF was the only serious contender who was determined to bag the deal. DLFs' interest would acceptably be natural, the land being contiguous to other land owned by it. However, that, naturally, does not justify transfer of land to the Company in the manner that it has been done.
270. Having held that the allotment of land in favour of M/s DLF is shrouded by such circumstances which have, prima facie, impaired, the element of 'public interest' and are detrimental to the State Exchequer, we are of the considered view that the official respondents are obligated to undertake de novo afresh process for re-allotment of the subject land for the professed public purpose.
271. Coming now to the next aspect, i.e. the issue of delay, first with regard to the challenge to the transfer of the land. Is there any delay in challenging the transfer of land to respondent no. 6 vide the impugned letter dated 09.02.2010?
272. On this issue, we do not find any delay by the petitioner in the first Public Interest Litigation, though there is delay, per se, on the challenge made in the petitions that have been filed after August, 2013. The petitioner in the lead case, i.e. CWP No.2367 of 2012, has given the detailed lead up to the filing of the petition, to the effect that he had to gather information by time and again by moving applications under the Right to Information Act, which continued till 2011, thus restraining him from filing a "half baked petition." The petition, thereafter, having been filed on 08.02.2012, we see no inordinate delay in its filing. VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012
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273. Of course, no such reason has been given in the second Public Interest Litigation and undoubtedly the petitions filed by the land owners have come after considerable delay. However, since even one petition has been filed, in our opinion with no delay, and we have come to the conclusion that the transfer in question was not wholly bona fide, it would make no difference if the other petitions are delayed, or that adequate reasons for the delay in filing have not been given therein.
274. Coming to the question of delay in challenging the acquisition process itself and the validity of the process itself, there is obviously a huge delay of at least 6 years in coming to this Court, the main acquisition having been completed in 2006 and the other pieces of land having been acquired in 2000 & 2001.
275. As already discussed before, the decision of government to develop a leisure and recreational project to enhance the corporate infrastructural facilities in the city, cannot be faulted and here we say that whether the land is to be utilized in one way or the other by the government, is a matter of policy decision which we would not interfere with. As such, a policy decision to utilize the land in a particular manner for a particular purpose, we find is something which we would not interfere with, even while holding that transferring large public land to a private enterprise in perpetuity, in circumstances where the beneficiary is seemingly intended to be a particular entity, in our opinion, it transgresses the realm of policy making.
276. As such, with the acquisition itself being upheld by us, in view of the fact situation of the expansion of Gurgaon city, despite the possibility of an influence having been exercised even in that decision, VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -89- we find that the challenge to the acquisition is highly belated. Of course, any fraud on the public would necessarily override technicalities of delay in such challenge too; however, with our having found only the transfer process vitiated by non bona fide intentions and not the acquisition itself, the delay in challenging the acquisition proceedings is not condonable.
277. The petitioners' contention that the acquisition of land is bad on account of non-compliance of Part-VII of the Act of 1894 also must fail for the reason that acquisition has not been shown to have been made for a private company. The public purpose has been explicitly mentioned in the notifications issued under Sections 4&6 of the Act and the same does not seem to have anything to do with any private company, even though the subsequent transfer to respondent no.6 may suggest so. The contention is, therefore, rejected. Similarly, Section 5 of the Punjab Village Common Lands (Regulation) Act, 1961 has no applicability in the instant case as the land has been acquired by the State in exercise of its power of 'eminent domain' under the Act of 1894. It is not a case of any voluntary sale of its land by the Gram Panchayat where the conditions contained in Section 5 of the 1961 Act are to be applied.
278. Likewise, the contention of some of the petitioners that the acquisition proceedings have lapsed in view of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 cannot be entertained in these proceedings firstly on account of vague and evasive averments made by the writ petitioners and secondly for the reason that the question whether VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -90- the compensation amount was not offered or the landowners did not receive the same is essentially a question of fact which can be determined at the first stage by the Government itself. We thus relegate them to approach the State Government in this regard by way of appropriate representation(s) which shall be considered and decided in accordance with law.
279. Thus, with the declared public purpose of the acquisition being not legally fallible, we find that the challenge to such acquisition is unsustainable, especially when it is made years after the acquisition process is over. Obviously, the petitioners were never wholly aggrieved by the acquisition itself, or at least knew that it could be fruitless to challenge it at the relevant time, and it is only the sale of their acquired land to a single entity which has irked them. That part being set aside by us, the acquisition itself is upheld and the challenge to the same is repelled, on all counts.
280. Since we are upholding the acquisition of the land for the public purpose for which it was acquired, we find no reason to entertain the writ petitions of the private landowners either, and consequently, the prayer for quashing the acquisition proceedings, is rejected.
281. In the result, we hold as follows:-
i. The acquisition of the subject land being not legally fallible is upheld. The writ petitions to the extent of challenging the acquisition proceedings are hereby dismissed;
ii. The allotment of acquired land in favour of M/s DLF vide order dated 09.02.2010 is hereby disapproved VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -91- being not transparent, fair, just and reasonable. It is held that the subject-allotment neither meets with the ingredients of 'public interest' nor it serves the public purpose of generating or maximizing the State's revenue;
iii.The State of Haryana and HSIIDC are directed to appoint a new Project Consultant having no conflict of interest, who shall have to give an undertaking that no person associated with such Consultant, directly or indirectly, shall participate in the fresh bid; iv.The Project Consultant shall re-formulate and harmonise the terms and conditions of 'Technical' or 'Financial' bid in such a manner that the eligibility conditions for bidding do not serve as tailor-made qualifications for one or the other prospective bidder, rather should provide equal level playing opportunity to all the potential and sound bidders so that the bid fetches maximum revenue for the State;
v. The Project Consultant shall be appointed within one month from the date of receipt of copy of this order, who shall submit its report for consideration of the competent authority within two months thereafter; vi.The State of Haryana/HSIIDC shall thereafter invite fresh international bidding and finalise the allotment process within a period of six months from the date of receiving report of the Project Consultant; VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012
& connected cases -92- vii.Till the fresh exercise for allotment in the manner directed hereinabove is undertaken, the allotment letter dated 09.02.2010 in favour of M/s DLF Ltd. shall remain in abeyance and shall not be further acted upon by the parties;
viii.The land in question shall for the purpose of fresh bidding remain in possession of the State or the HSIIDC;
ix.If the fresh bids are more beneficial for the purpose of maximizing the State's revenue, the allotment in favour of M/s DLF Ltd. shall stand cancelled and the amount received from it so far shall be returned; x. However, if the fresh process does not attract any bid better than the earlier bid given by M/s DLF, in that case, the State Government/HSIIDC shall be at liberty to revive the allotment dated 09.02.2010 and act upon it accordingly;
xi.It would also remain open to Government and its agencies to execute the project entirely on their own; xii.Since the States/its agencies, in any event, are making enormous profit pursuant to the acquisition of the subject land, they shall be required to develop a 'Public and Recreational Park' of an appropriate acreage, for the residents of the village and residents of Gurgaon, within a period of two years.
HSIIDC/HUDA shall be responsible for upkeep and VIKAS CHANDER 2014.09.05 10:13 I attest to the accuracy and integrity of this document Chandigarh CWP No.2367 of 2012 & connected cases -93- maintenance of the said park.
282. The writ petitions are disposed of in the above terms leaving the parties to bear their own costs.
(SURYA KANT) (AMOL RATTAN SINGH)
JUDGE JUDGE
03.09.2014
Dinesh/vcgarg
VIKAS CHANDER
2014.09.05 10:13
I attest to the accuracy and
integrity of this document
Chandigarh