Punjab-Haryana High Court
Huda & Ors vs M/S Coral Relators Pvt. Ltd on 2 December, 2014
Author: Hemant Gupta
Bench: Hemant Gupta, Hari Pal Verma
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: 02.12.2014
LPA No.2335 of 2011
Haryana Urban Development Authority & others ...Appellants
Versus
M/s Coral Realtors Pvt. Ltd. ...Respondents
Present: Mr. Raman Gaur, Advocate, for the appellants.
Mr. Arun Jain, Senior Advocate, with
Mr. Sanjay Vij, Advocate, for the respondent.
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE HARI PAL VERMA
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?
HEMANT GUPTA, J.
The present letters patent appeal under Clause X of the Letters Patent is directed against an order passed by the learned Single Bench of this Court on 15.03.2011 allowing the writ petition filed by the respondent herein with a direction to the appellants to sanction the building plan of the respondent-Company by permitting them Floor Area Ratio (FAR) of 150% qua the multiplex site purchased by the respondent-Company.
The present appellants published an advertisement for sale of a multiplex site measuring 2700 square meters in Sectors 55 & 56, Gurgaon for which auction was proposed to be held on 05.02.2007. The FAR for multiplex as per the condition in the advertisement was mentioned as 125% with ground floor coverage 100% and maximum height of 21 meters. VIMAL KUMAR 2014.12.09 13:03 I attest to the accuracy and integrity of this document Chandigarh LPA No.2335 of 2011 2 In pursuance of such auction notice, the writ petitioner participated in the auction and was successful bidder having given bid of Rs.73,40,00,000/-. A letter of allotment was issued to the writ petitioner on 26.02.2007 to the effect that a sum of Rs.11,00,96,000/- is to be deposited within 30 days from the date of issue of such letter to make 25% of the price after taking into consideration Rs.7,34,04,000/- deposited by the petitioner.
On 11.05.2007 vide Annexure P-5, the writ petitioner sought clarification from the Chief Administrator of the appellants in respect of FAR of the multiplex site in which the writ petitioner participated. It is averred that nowhere in the advertisement FAR was mentioned and on an enquiry at the time of auction, the HUDA officials told them that FAR is as per the existing policy, as in Sectors 23 & 23-A, multiplex plots having FAR of 150% were auctioned on 15.12.2006. On the basis of such communication, the Administrator, HUDA, Gurgaon communicated to the Chief Administrator on 21.06.2007 to consider the request of the writ petitioner for increase in FAR. The relevant extract from the said communication reads as under:
"In the matter, this is to apprise you that in the advertisement as well in the hand bills the prescribed FAR for multiplex site of Sector 55-56 has been mentioned as 125%. One copy each of advertisement and hand bill as desired are sent herewith for your ready reference. D.T.P. Gurgaon has confirmed on telephone that the zoning plan of the site was also displayed at the time of auction. However, in the matter, it is stated that at the time of auction, the applicant and other bidders had raised the demand for increasing FAR of the site to 150%. DTP Gurgaon had then informed that since it was an old approved zoning plan, FAR of only 125% was allowed, but the case for increasing FAR to 150% would be sent for bringing it at par with the prevailing FAR VIMAL KUMAR allowed in other multiplex site. In view of the above stated facts 2014.12.09 13:03 I attest to the accuracy and integrity of this document Chandigarh LPA No.2335 of 2011 3 and to have uniformity of norms, the request of the applicant for increasing FAR from 125% to 150% may be considered."
In pursuance of such communication, the Chief Administrator on 16.10.2008, communicated that terms and conditions of auction cannot be allowed to be modified after completion of auction. It is, thereafter, after serving notice, the petitioner invoked the writ jurisdiction of this Court.
In the written statement, it is averred that in the advertisement, it was clearly mentioned that FAR of the multiplex will be 125%. It is denied that any attempt was made to increase the FAR from 125% to 150%. The petitioner in the rejoinder referred to a letter received by it under the Right to Information Act, 2005 on 21.07.2009 in response to communication dated 20.03.2009. The information sought and the answers read as under:
Information sought "(a) What has been the policy of HUDA since 2004 for allowing FAR to shopping complex/multiplex plot auctioned by them in various sectors of Gurgaon.
(b) Whether same FAR has been allowed to all the shopping complex/multiplex plots auctioned by HUDA in various sectors of Gurgaon since 2004 and if not the reason thereof may be indicated against each plot.
(c) What is the rate per sqm. for sanctioning the Building plan.
(d) Supply the copy of letters Memo No.CPT(H) DTP(N) 5231-
34 dated 13.06.2007 written by Chief Administrator, HUDA Town Planning Wind, Panchkula to Administrator, HUDA, Gurgaon & letter Memo No.10596, dated 21.06.2007 written by Administrator HUDA, Gurgaon to Chief VIMAL KUMAR Administrator, HUDa, Town Planning Wing, Panchkula." 2014.12.09 13:03 I attest to the accuracy and integrity of this document Chandigarh LPA No.2335 of 2011 4 Answers "In this regard, it is intimated that information on point 'C' has already been supplied to you vide this office No.2336 dated 01.06.2009. The information on point 'A' & 'B' is as under:
(a) The FAR in multiplex/shopping mall is allowed as per the zoning plans given below:
(i) 150% FAR as per drawing
No.DTP(G)1010/02 dated 16.04.2002.
(ii) 150% FAR as per drawing No.DTP(G) 664/96
dated 13.11.1996.
(iii) 175% FAR as per drawing
No.DTP(G)1169/03 dated 27.10.2003.
In spite of the above FAR is determined by HUDA at
the time of auction in case of commercial sites."
The learned Single Judge allowed the writ petition on the basis of plea of promissory estoppel relying upon Hon'ble Supreme Court in Food Corporation of India Vs. Kamdhenu Cattle Feed Industries (1993) 1 SCC 71; Union of India Vs. Hindustan Development Corporation (1993) 1 SCC 499 and Sethi Auto Service Station Vs. DDA (2009) 1 SCC 180 while recording the following finding:
"Applying the above noted principles to the facts of the present case, it can be noticed that the petitioner was clearly given to understand that FAR for multiplex site was likely to be increased from 125% to 150%. This is well documented from the communication which was addressed in this regard by Administrator to Chief Administrator, HUDA. The case of the increasing FAR was to be sent for brining at par with the prevailing FAR allowed in the other multiplex sites. The petitioner alongwith other bidders had accordingly participated in the bid. In this VIMAL KUMAR background, it is to be seen whether the petitioner could 2014.12.09 13:03 I attest to the accuracy and integrity of this document Chandigarh LPA No.2335 of 2011 5 legitimately expect the increase in the FAR from 125% to 150%. Such an expectation as per law may arise either from a representation or a promise made by an authority. This was an implied representation that this FAR would be increased to 150%. This is also in line with the practice as FAR of 150% is being allowed in the prevailing multiplex sites. This could not be termed only as a wish, a desire or a hope. It is also not a case of mere disappointment. The legitimate expectation in this case can be inferred as it is founded on the sanction of law or a custom and also by an established procedure. The FAR of 150% is now routinely allowed and was not made applicable in this case, it being a old zoning plan. The person participating in the auction could reasonably expect that the promise advanced for changing it to be 150% FAR would be available. The petitioner has made out a case that he had relied upon the representation and denial of this expectation has worked to his disadvantage. To an extent, it can be said that the decision of the authorities now not to grant the same may sound little arbitrary as same FAR is now routinely allowed in all multiplex sites."
Learned counsel for the appellants has vehemently argued that in the advertisement Annexure P-1 and the pamphlets distributed at the time of auction, the FAR of the multiplex site in question was mentioned as 125%. It is the said FAR, which is allowable in respect of site in question purchased by the writ petitioner. The argument that there was a representation made that FAR will be increased is not borne out from the communication dated 21.07.2009. What is stated is that at the time of auction, the bidders raised demand for increasing FAR of the site to 150%. It was conveyed that the case for increasing of FAR to 150% 'would be sent' for bringing it at par with other multiplex site. The reason for declining the request for change of FAR is that the terms and conditions of the auction cannot be changed after auction. The writ petitioner was aware VIMAL KUMAR 2014.12.09 13:03 I attest to the accuracy and integrity of this document Chandigarh LPA No.2335 of 2011 6 of the FAR, as specified in the advertisement and the pamphlets, when the bids were given.
In the face of clear terms and conditions of auction, the consideration of the objection of the bidders to increase FAR is not a categorical representation to infer acceptance of increase in FAR. In the present case, since the FAR was categorically mentioned as 125%, the writ petitioner cannot claim FAR of 150%. Even the information under the Right to Information Act says that in respect of commercial area, FAR has to be as per the zoning plan. The FAR in respect of each commercial site is required to be determined, as is mentioned in the information disclosed under the Right to Information Act, 2005 in the zoning plans.
The FAR of the site in question as 125% was finalized in the zoning plan. The 'zoning plan' is defined in Regulation (2) of Clause (Lii) of the Haryana Urban Development Authority (Erection of Buildings) Regulations, 1979 to mean the detailed layout plan of the sector or a part thereof as approved by the Chief Administrator showing the subdivision of plots, open spaces, streets, position of protected trees and other features and in respect of each plot, permitted land use, building lines and restrictions with regard to the use and development of each plot in addition to those laid down in the building rules. Since the zoning plan is part of the Statute, such statutory zoning plan cannot be changed on the basis of objections raised by the bidders and the communication made by the Chief Administrator. The provisions of the statutory rules can be amended as contemplated in the statute itself. Since the procedure relating to amendment of zoning plan was not resorted to, it cannot be said that FAR shall stand increased to 150%.
VIMAL KUMAR2014.12.09 13:03 I attest to the accuracy and integrity of this document Chandigarh LPA No.2335 of 2011 7
We find that there is no representation on the part of the officials of the appellants conducting auction that FAR will stand increase to 150%. The communication dated 21.07.2009 shows only consideration for increase of FAR. In the absence of any categorical promise, which was not extended by the competent authority, we find that the direction issued by the learned Single Judge is not sustainable.
The judgment relied upon by the learned counsel for the respondent in M/s Ganpati Shopping Mall Pvt. Ltd. Vs. State of Haryana & others 2007 (1) PLR 43, wherein plea of promissory estoppel was raised, is not helpful to the argument raised. That was a case where, in the advertisement, the FAR was mentioned as 150%, whereas while issuing letter of allotment, FAR was mentioned as 125%.
The doctrine of promissory estoppel is applicable only to unequivocal promise made by the competent authority. The functionary of the statutory authority is competent to discharge as much functions, as are authorized by law. Since neither there was any unequivocal promise nor such promise could be held out in respect of statutory regulations, we find that the order passed by the learned Single Judge is not sustainable.
Consequently, while setting aside the order passed by the learned Single Judge, we allow the present appeal and dismiss the writ petition.
(HEMANT GUPTA)
JUDGE
02.12.2014 (HARI PAL VERMA)
Vimal JUDGE
VIMAL KUMAR
2014.12.09 13:03
I attest to the accuracy and
integrity of this document
Chandigarh