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TMI Blog2008 (10) TMI 659X X X X Extracts X X X X X X X X Extracts X X X X ..... ahipalpur, New Delhi since 1994. The land for the purpose was allotted by the Airport Authority of India (for short Aai') Whereas The Petrol Pumps Were Allotted By The Indian Oil Corporation (For Short IOC') and Hindustan Petroleum Corporation Limited (for short HPCL') to Sethi and Anand respectively. According to the appellants, in the year 1999, a proposal was formulated for construction of an eight-lane express highway between Delhi and Gurgaon, including construction of a flyover/grid separator at Mahipalpur crossing, where the two petrol pumps in question are located. Claiming unviability in the operation of the two petrol pumps on account of construction of the flyover and relying on the policy framed by the Delhi Development Authority (for short the DDA') on 14th October, 1999, the two oil companies approached the DDA, respondent No. 1 in this appeal, for "re-sitement" of both the petrol pumps. It was claimed that, in the first instance, IOC and HPCL had corresponded with the original allotment agency, viz. AAI, for re-sitement but some time in the year 2000, AAI informed the Oil Companies that it did not have any alternative site for allotment due to non-ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filled by them and the DDA had also recommended the allotment in May, 2002; which proposal had also been cleared by the Technical Committee and, therefore, the DDA was bound by the said decisions. Moreover, having acted upon its decisions by earmarking the two sites, the decision to withhold allotment and include the two earmarked plots in the proposed auction was unreasonable, irrational and arbitrary and the mere fact that the DDA chose to sit over the recommendations and did not issue formal orders of allotment could not rob the appellants of their valuable right to such allotment. In a nutshell, the case of the appellants was that the decision taken by the DDA in the year 2002, in favour of the appellants, upon consideration of all the relevant materials and factors, gave rise to substantive legitimate expectations in their minds that the allotment for alternative sites would be made in favour of the appellants. Allegations of discrimination were also levelled against the DDA, inter alia, stating that six-seven named petrol outlets were given alternative lands even though they were not operating on the lands allotted by the DDA. 6. The stand of the DDA before the High Court wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Clause X of the Letters Patent as applicable to the High Court of Delhi. Both the appeals having been dismissed, the appellants have preferred this appeal. 9. Mr. Arun Jaitley, learned senior counsel, appearing for the appellants, strenuously urged that the representations of the appellants were considered by the DDA in terms of its policy dated 14th October, 1999 and its Technical Committee, headed by the Vice Chairman himself, had found the appellants to be eligible and on 28th November, 2002 recommended re-sitement of the two outlets and, therefore, it was not open to the DDA to do a volte-face and reject the representation of the appellants. It was contended that once appellants' cases were considered by the DDA under the guidelines in vogue at the relevant time and they were found to be covered thereunder, the appellants had substantive legitimate expectation that allotments would be made to them. It was argued that mere delay on the part of the DDA in communicating formal orders of allotment to the appellants could not defeat their valuable right on the ground of subsequent change in the policy in June, 2003, which could only be applied prospectively. 10. Per cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution, the Court held that order of the Minister could not amount to an order by the State Government unless it was expressed in the name of the Rajpramukh, as required by the said Article and was then communicated to the party concerned. The court observed that business of State is a complicated one and has necessarily to be conducted through the agency of a large number of officials and authorities. Before an action is taken by the authority concerned in the name of the Rajpramukh, which formality is a constitutional necessity, nothing done would amount to an order creating rights or casting liabilities to third parties. It is possible, observed the Court, that after expressing one opinion about a particular matter at a particular stage a Minister or the Council of Ministers may express quite a different opinion which may be opposed to the earlier opinion. In such cases, which of the two opinions can be regarded as the "order" of the State Government? It was held that opinion becomes a decision of the Government only when it is communicated to the person concerned. 14. To the like effect are the observations of this Court in Laxminarayan R. Bhattad and Ors. vs. Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment proposal pending for different areas in Dwarka and it was agreed that the onus of such petrol pump sites on DDA land, does not lie upon DDA particularly in a situation when DDA now has a policy for auction of petrol pump sites. It was, therefore, decided that irrespective of the impact of the proposed Express Way on these petrol pump sites, there is no reason for DDA to take the responsibility of resitement of these petrol pump sites and the oil companies concerned may either participate in the auction process or obtain private plots for the purpose of carrying out their business." 16.Finally, the Vice Chairman concurred with the view of the Commissioner; proposals for re-sitement were rejected and consequently decision was taken to put the two plots, on which the appellants had staked their claims for auction. 17.From the afore-extracted notings of the Commissioner and the order of the Vice Chairman, it is manifest that although there were several notings which recommended consideration of the appellants' case for relocation but finally no official communication was addressed to or received by the appellants accepting their claim. After the recommendation of the Technic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by or against him in private law or (b) by depriving him of some benefit or advantage which either: (i) he has in the past been permitted by the decision maker to enjoy and which he can legitimately expect to be permitted to continue to do until some rational ground for withdrawing it has been communicated to him and he has been given an opportunity to comment thereon or (ii) he has received assurance from the decision-maker that they will not be withdrawn without first giving him an opportunity of advancing reasons for contending that they should be withdrawn. 20. In Attorney General of Hong Kong vs. Ng Yuen Shiu6, a leading case on the subject, Lord Fraser said: "when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as the implementation does not interfere with its statutory duty". 21. Explaining the nature and scope of the doctrine of legitimate expectation, in Food Corporation of India vs. M/s Kamdhenu Cattle Feed Industries7, a three-Judge Bench of this Court had observed thus: "The mere reasonable or legitimate expectation of a citizen, in such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal limitations applicable and binding the manner of the future exercise of administrative power in a particular case. It follows that the concept of legitimate expectation is "not the key which unlocks the treasury of natural justice and it ought not unlock the gate which shuts the court out of review on the merits", particularly when the element of speculation and uncertainty is inherent in that very concept." 23. Taking note of the observations of the Australian High Court in Attorney General for New South Wales vs. Quinn9 that "to strike down the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be to set the Courts adrift on a featureless sea of pragmatism", speaking for the Bench, K. Jayachandra Reddy, J. said that there are stronger reasons as to why the legitimate expectation should not be substantively protected than the reasons as to why it should be protected. The caution sounded in the said Australian case that the Courts should restrain themselves and restrict such claims duly to the legal limitations was also endorsed. 24. Then again in National Buildings Construction Corpora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted in the subjective sense as part of our legal jurisprudence, arises when an administrative body by reason of a representation or by past practice or conduct aroused an expectation which it would be within its powers to fulfill unless some overriding public interest comes in the way. However, a person who bases his claim on the doctrine of legitimate expectation, in the first instance, has to satisfy that he has relied on the said representation and the denial of that expectation has worked to his detriment. The Court could interfere only if the decision taken by the authority was found to be arbitrary, unreasonable or in gross abuse of power or in violation of principles of natural justice and not taken in public interest. But a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. It is well settled that the concept of legitimate expectation has no role to play where the State action is as a public policy or in the public interest unless the action taken amounts to an abuse of power. The court must not usurp the discretion of the public authority which is empowered to take the decisions under law and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 20th June, 2003, a case for resitement could be considered by the DDA only under the following circumstances: "A. Resitement: 1) Resitement will be made only when the existing petrol pump/gas godown site is utilized for a planned project/scheme which directly necessitates the closing down of the petrol pump/gas godown site. No resitement will be made on any other grounds. As the petrol pumps will be disposed on annual Licence fee basis rather than on upfront payment, if an allottee does not find the business lucrative due to certain other reasons, he can always chose to surrender the site. 2) In all cases of resitement, the existing rates for the new site will be charged and the possession of the old site will be handed over to DDA. 3) The alternative site will be allotted through computerized draw from the available sites. For holding the draw at least 3 sites must be available on the date of holding the draw." 31.It is plain that under the new policy resitement of a petrol pump etc. is possible only when the existing petrol pump is utilized for a planned project/scheme, which directly necessitates the closing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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