TMI Blog2015 (8) TMI 1495X X X X Extracts X X X X X X X X Extracts X X X X ..... me of the other aspirants submitted applications for licences on the day the Draft Development Plan was published on 4.10.2010. We find that the public notice does not give any starting time for submission of an application nor the last date. It is an open ended scheme. Any applicant can apply at any point of time. Such application would be considered if the density is available. It does not take into consideration as to whether the external developments have been completed or shall be completed by the time the constructed apartments in the Group Housing shall be offered for possession. Since the licences have been granted on the basis of the doctrine of first come first served basis, which is not a fair, reasonable and transparent method, the licences granted to the private respondents, cannot be sustained - the licences granted to respondent Nos. 4 to 7 are cancelled - Petition allowed. - CWP No. 21942 of 2013 (O&M) - - - Dated:- 26-8-2015 - HON BLE MR. JUSTICE HEMANT GUPTA AND HON BLE MR. JUSTICE SHEKHER DHAWAN Shri Puneet Bali, Sr. Advocate, with Shri Vinod S. Bhardwaj, Advocate, for the petitioners. Shri Lokesh Sinhal, Addl. AG, Haryana. Shri R.S. Cheema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 7.9.2010. As per the petitioners, no deficiency was pointed out in respect of the application submitted. Another Draft Development Plan-2025 was published on 4.10.2010 on the basis of layout drawing dated 25.8.2010. The southern side of Sectors 59, 60 and 63 was given a nomenclature of Sector 63-A. In terms of the Draft Development Plan published, public at large was given 30 days' time to file objections. It is also pointed out that a public notice (Annexure P. 6) was published in the newspapers on 4.10.2010 though the same is dated 1.10.2010. The public advertisement reads as under:- It is informed to the General Public that amendment in Final Development Plan, Gurgaon Manesar Urban Complex published vide Haryana Government Gazette (Extra Ordinary) Notification No. CCP9NCR/FDP (G) 2007/359, dated 05.02.2007 is being carried out for which the state level committee meeting was held 27.09.2010. It has been observed that application are being received in the Department for granting Change of Land Use permission and licence application are being received in the Department for granting Change of Land Use permission and licence applications on the basis of such proposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Colony in hyper Potential zone is 10.00 acres (as per Policy Memo No. 7/16/2006-2TCP, dated 19.12.2006 duly hosted on website namely www.tcpharyana.gov.in) and thus area applied for grant of licence for area measuring 13.61875 acres cannot be considered. Detailed orders are enclosed. The detailed order dated 9.11.2010, inter-alia, gave liberty to the petitioners to apply for a licence in Sector 63-A, Gurgaon Manesar Urban Complex on the basis of the Draft Development Plan - 2025. The petitioners earlier fled CWP No. 18838 of 2010 challenging the show cause notice as well as the public notice issued claiming that the petitioners be granted licence for which application had been submitted on 10.9.2010 on the basis of seniority of submitting application on 10.9.2010. This Court passed an order on 14.10.2010 directing the parties to maintain status-qua regarding grant of change of land use. Since an order rejecting the claim of the petitioners for licence was passed in the meantime, the petitioners filed another petition bearing CWP No. 21236 of 2010. Both the writ petitions filed by the petitioners were decided on 9.8.2011 with a direction to the Director, Town and Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, there is no merit in the above said plea of the appellant. It is also on record that the Takseem Intkal of the land measuring 13K-15M was sanctioned only on 22.02.2011 i.e. much after the date of submission of application. The mutation of the land measuring 61K-7M was also approved only on 18.09.2010. The appellants had no clear title on the land applied for licence as on the date of the submission of the application on 10.09.2010. The representative for respondent No. 4 5 rightly pointed out that the appellants being aware that the Draft Development Plan of GMUC was going to be published soon, with the provision for a new residential sector i.e. Sector 63-A, submitted application in advance to gain seniority, though as on that date, the applied area was not a part of any Development Plan. In view of the above said discussion, I do not find any merit in the plea raised by the appellant. There is no reason to interfere in the order dated 16.09.2011 passed by respondent No. 2, which is just and legal. Accordingly, the appeal is hereby dismissed. The present petition is directed against the above said order. In reply to the present petition, the official respondents hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s arising out of any such change at the time of publication of the Final Development Plan, the Government is of the opinion that the date of publication of the Final Development Plans of Hyper and High Potential towns be fixed as the effective date for acceptance and consideration of licence applications. So as to prevent the abrupt stoppage of licences in the low and medium potential towns, the said policy shall be extended to such towns and for CLU applications at a later date for which separate instructions shall be issued. Accordingly, in accordance with the powers conferred under Section 9A of the Haryana Development and Regulation of Urban Areas Act, 1975, the Governor of Haryana is pleased to pronounce the following policy parameters in this regard:- (i) In the towns/urban areas falling in Hyper High Potential Zone, the date of publication of Final Development Plan shall be the effective date for acceptance and consideration of the licence applications. (ii) In towns/urban areas falling in Medium Low Potential Zones, the date of publication of Draft Development Plan shall be the effective date for acceptance and consideration of licence applications provided: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of regulating the Development in the Controlled Areas, hence, the land use proposal of Development Plan forms basis for considering the licence applications under the Haryana Development and Regulation of Urban Areas Act, 1975 (Act No. 8 of 1975). It is further clarified that the Department continued to receive the licence applications and considered these for grant of licence on the basis of Draft Development Plan 2001 AD of controlled area Gurgaon published in 1982 till its final publication in 1996. Although, the licence applications were received on the basis of revised Draft Development Plan Gurgaon - Manesar Urban Complex (GMUC)-2021AD, but the licences were granted only after the publication of Final Development Plan - GMUC-2021AD on 5.2.2007. The codified policy for receiving the applications vis-`-vis publication of Development Plan was put in place on 05.07.2012. It is further informed that there was no prescribed policy before 5.7.2012 pertaining to considering licence applications on the basis of Draft/Final Development Plan, though neither the Punjab Scheduled Roads and Controlled Area Restriction of Unregulated Development Act, 1963 or the Act of 1975 laid any restri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, he requested for grant of an opportunity to address arguments on the said questions. Accordingly, the matter was adjourned for today. Learned Senior Counsel for the petitioners has vehemently argued that the process of grant of licence on first come first served basis is a principle of pure chance and accident and gives rise to an unholy race amongst the aspiring candidates for licences. Still further, the applications for licences have been sought on publication of Draft Development Plan, though the same are said to be considered after publication of a Final Development Plan. There is no reason as to why the applications should have been accepted on the basis of Draft Development Plan even before the finalization of the plans. It is argued that though the application of the petitioners was in respect of the land which then formed part of Sector 60, yet the licence has to be granted in respect of the land, which is now located in Sector 63-A. Such application could not have been rejected for the reason that the petitioners applied for Group Housing Licence for and in respect of the land situated in Sector 60. Shri Lokesh Sinhal, learned Additional Advocate General ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be extended prospectively and not to the licences already granted. Before we consider the respective contentions of the learned counsel for the parties, certain statutory provisions need to be noticed:- The Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 5. Publication of plans etc. in controlled area.-(1) The Director shall, not later than three months from the declaration under sub-section (1) of section 4 or within such further period as the Government may allow, prepare plans in the prescribed manner showing the controlled area and signifying therein the nature of restrictions and conditions proposed to be made applicable to the controlled area and submit the plans to the Government. (2) Without prejudice to the generality of the powers specified in sub-section (1), the plans may provide for any one or more of the following matters, namely:- (a) the division of any site into plots for the erection or re-erection of any building and the manner in which such plots may be transferred to intending purchasers or lessees; (b) the allotment or reservation of land for roads, open spaces, gardens, recreation grounds, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -In these rules unless the context otherwise requires:- (a) to (c) xx xx xx (d) Development Plan means the final plan notified in the official Gazette under sub-section (7) of section 5; (e) and (f) xx xx xx (g) Sector means any part of the controlled area indicated as such in the Development Plan; (h) Sector Plans shall mean the Plan as proposed under rule 8 and kept in the office of the Director showing the layout of a sector and in particular defining the main road system and approximate location of sites for shopping centre, school and other public buildings and major open spaces within the sector. xx xx xx 9. Publications of development plans for inviting objections. [Sections 5(4) and 6] - A copy of the development plan notified by Government under sub-section (4) of section 5 shall be sent by the Director to every local authority within whose limits any land included in the controlled areas is situated so as to enable it to make any representation within a period of three months it may like to make with respect to the plan. 10. Publication of final development plans. [Sections 5(7) and 25(2)(b)]-The development plan as notified by the Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complexes in residential sectors and for industrial colony; (b) xx xx xx xx xx xx 8. Enquiry by Director [Section 3(2)]. (1) On receipt of application in the prescribed form and complete in all respects, the Director shall enquire into the following matters and such other matters as he may consider necessary:- (a) title to land; (b) Extent and situation of the land; (c) Capacity to develop the colony; (d) Layout plan of the colony; (e) Plan regarding the development works to be executed in the colony; (f) Conformity with the development scheme of the land in question and the neighbouring areas; and (g) Conformity with the development plan. xx xx xx 9. Rejection of application [Section 3]. The Director may after making inquiry as mentioned in sub-rule (1) of rule 8 and after giving reasonable opportunity of being heard to the applicant by an order in writing reject the application to grant licence in form LC II, if:- (a) it does not conform to the requirements of rules 3, 4 and 5 and 8; (b) the plants and designs of the development works submitted with the application are not technically sound and workable; or (c) the estimated expenditu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsely in Centre for Public Interest Litigation and others v. Union of India and others, (2012) 3 SCC 1. The Court examined inter-alia the following questions:- (i) Whether the Government has the right to alienate, transfer or distribute natural resources/national assets otherwise than by following a fair and transparent method consistent with the fundamentals of the equality clause enshrined in the Constitution? xx xx xx (ii) Whether the policy of first-come-first-served followed by Dot for grant of licences is ultra-vires the provisions of Article 14 of the Constitution and whether the said policy was arbitrarily changed by the Minister of Communications and Information Technology (hereinafter referred to as 'the Minister of Communications and Information Technology'), without consulting TRAI, with a view to favour some of the applicants? The Court answered the said questions when it held to the following effect:- 94. There is a fundamental flaw in the first-come-first-served policy inasmuch as it involves an element of pure chance or accident. In matters involving award of contracts or grant of licence or permission to use public property, the invocation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be fair, reasonable, non-discriminatory, transparent, non-capricious, unbiased, without favouritism or nepotism, in pursuit of promotion of healthy competition and equitable treatment. It should conform to the norms which are rational, informed with reasons and guided by public interest, etc. The Court held:- 107. From a scrutiny of the trend of decisions it is clearly perceivable that the action of the State, whether it relates to distribution of largesse, grant of contracts or allotment of land, is to be tested on the touchstone of Article 14 of the Constitution. A law may not be struck down for being arbitrary without the pointing out of a constitutional infirmity as STATE OF A.P. V. MCDOWELL CO., (1996) 3 SCC 709, has said. Therefore, a State action has to be tested for constitutional infirmities qua Article 14 of the Constitution. The action has to be fair, reasonable, non-discriminatory, transparent, non-capricious, unbiased, without favouritism or nepotism, in pursuit of promotion of healthy competition and equitable treatment. It should conform to the norms which are rational, informed with reasons and guided by public interest, etc. All these principles are inhe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rces. The Court cannot mandate one method to be followed in all facts and circumstances. Therefore, auction, an economic choice of disposal of natural resources, is not a constitutional mandate. We may, however, hasten to add that the Court can test the legality and constitutionality of these methods. When questioned, the courts are entitled to analyse the legal validity of different means of distribution and give a constitutional answer as to which methods are ultra vires and intra vires the provisions of the Constitution. Nevertheless, it cannot and will not compare which policy is fairer than the other, but, if a policy or law is patently unfair to the extent that it falls foul of the fairness requirement of Article 14 of the Constitution, the Court would not hesitate in striking it down. 147. Finally, market price, in economics, is an index of the value that a market prescribes to a good. However, this valuation is a function of several dynamic variables: it is a science and not a law. Auction is just one of the several price discovery mechanisms. Since multiple variables are involved in such valuations, auction or any other form of competitive bidding, cannot constitute eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on yet the action of permitting some of the applicants to make up the deficiencies, while declining such permission to the other, is an arbitrary process of grant of licence. Since, to develop a colony is a privilege; the consideration of the same has to be fair and reasonable manner. What should be transparent and fair method of grant of licence, it is for the State Government to prescribe such policy. Whether the policy is to go for an auction the licences after determining the eligibility of the applicants or by draw of lots or any other method, it is for the State Government to frame such policy subject to the test of reasonableness, in accordance with law. Since the licences have been granted on the basis of the doctrine of first come first served basis, which is not a fair, reasonable and transparent method, we find that the licences granted to the private respondents, cannot be sustained. In view of the above, while allowing the present writ petition, the licences granted to respondent Nos. 4 to 7 are cancelled. The State Government may consider the grant of licences after framing a transparent and fair policy to grant privilege of licence. - - TaxTMI - TMITax - I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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