PETITIONER:
NEW INDIA PUBLIC SCHOOL & ORS. ETC
Vs.
RESPONDENT:
HUDA & ORS. ETC
DATE OF JUDGMENT: 15/07/1996
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
CITATION:
JT 1996 (7) 103 1996 SCALE (5)553
ACT
HEADNOTE
JUDGMENT
WITH SPECIAL LEAVE PETITION (CIVIL) NOS.12261-64, 12338-41, 12720-23 AND 13053 OF 1996.
ORDER In SLPs except SLP Nos. 12720-23/96
We have heard the counsel on both sides. These Special Leave Petitions have been filed against the order of the Division bench of the Punjab & Haryana High Court in L.P.A. No.1368/92 and batch, dated March 1, 1996. The Haryana Urban Development Authority (HUDA) had invited applications for allotment of sites to establish the high schools, primary schools or nursery schools in the zone earmarked for the schools in Panchkula. Pursuant thereto, several applied for allotment of sites. HUDA had allotted, out of 23 plots available, sites to 1, persons and denied allotment to eight persons. The non-allotees filed the writ petitions in the High Court challenging the validity of the procedure adopted by the HUDA in allotting sites to the schools. Though the learned single Judge found fault with the allotment, on finding and taking into consideration that pending writ petitions, the petitioners and some of the respondents had constructed buildings and schools were being run at the allotted plots, he upheld their actions and dismissed the writ petitions with the observations mentioned therein. On appeal, the Division Bench set aside the order of the learned single Judge and while quashing the allotments made, issued directions as enumerated thus:
"a) All the school sites required
to be allotted or sold shall be
notified afresh strictly in
accordance with the provisions of
the Act and the Regulations. All
the petitioners, the private
respondents and all other eligible
persons shall be permitted to
participate in the process of sale
or allotment;
b) preference shall be given for
sale or allotment by open auction;
c) In case, the respondent
authority decides not to resort to
the method of open auction, it may
invite applications in accordance
with the provisions of Regulation 5
and on the prescribed proforma;
d) The tentative price/premium of
each site shall be pre-determined
and proportionate earnest money
received alongwith the
applications, if filed;
e) appropriate reasonable uniform
criterion for making the
allotments, if so desired be
notified in advance;
f) Before initiating action for
sale or allotment of the school
sites, value of the
construction/building raised by the
private respondents herein shall be
got determined by the Committee of
experts Headed by a Chief Engineer;
g) The intending allotees would be
intimated that if they succeed in
getting the school sites allotted
in their favour, they will take its
possession alongwith the building
staff and the students who offer to
remain in their
employment/institutions;
h) Incase it is decided to transfer
the land by open auction it shall
specifically be mentioned in the
notice that in case the present
allottee succeeds in such auction
they shall be given the benefit of
10 percent of the bid amount
offered by them;
i) Out of the amount realised by
sale or lease on account of the
price-premium the erstwhile
allottees shall be paid the amount
spent by him/it in raising
construction of the building at his
own risk and responsibility during
the pendency of the writ petition,
as calculated by Expert Committee
alongwith the amount already paid
to the HUDA such a provision would
not be applicable where the
allottee exercises his option to
remove the construction raised by
him/it at his/its own risk and
responsibility.
j) The process be initiated within
two months and completed within
four months;
k) Till the process of fresh
allotment is completed, the private
respondents shall be permitted to
remain in possession of the school
sites allotted to them. The
appellants are held entitled to the
payment of costs which are assessed
at Rs.2,000/- per appeal."
Shri P.P. Rao, Shri Gopal Subramaniam, learned senior counsel appearing for the petitioners and Shri Arun Jaitley, learned senior counsel appearing for the HUDA contended that the HUDA had laid the criteria for allotment of the sites; invited applications, prescribed the pre-conditions for compliance laid down therein; a Committee was constituted to go into the credentials of the applicants; and after close scrutiny of those applications the HUDA had allotted these sites to the petitioners in total to 11 applicants. Therefore, the procedure adopted by the HUDA cannot be found fault with. Shri Rao and Gopal Subramaniam further contended that allotment by auction is not the only criteria provided in Section 15 of the Haryana Urban Development Authority Act, 1977 (for short, the "Act"). The Haryana Urban Development (Disposal of Land and Buildings) Regulations 1978 (for short, the Regulations) do indicate the provision for allotment by modes other than public auction. Proviso to regulation 5(3) itself gives power for allotment to groups or individuals or persons practicing any profession or carrying on any occupation, trade or business or for any such categories of persons or government department or institution or charitable institutions or other organisations for public welfare as may be decided by the authority from time to time. Therefore, the Division Bench was not right in its conclusion that allotment by public auction is the only mode of allotment.
It is also further contended that pending writ petitions the petitioners have constructed the buildings at a huge cost. Compliance of the directions of the Division Bench would put them to great disadvantage and that, therefore, the relief should be suitably moulded. Having given consideration to the respective contentions, we think that the directions issued by the Division bench broadly cannot be found fault with. It is seen that Section 15 of the Act gives power to the authority for disposal of the land as under:
"15. Disposal of land :- (1)
Subject to any directions given by
the State Government under this Act
and to the provisions of sub-
section (5), the Authority may
dispose of -
(a) any land acquired by it or
transferred to it by the State
Government without undertaking or
carrying out any development
thereon; or
(b) any such land after undertaking
or carrying out such development as
it thinks fit, to such persons, in
such manner and subject to such
terms and conditions, as it
considers expedient for securing
development.
(2) Nothing in this Act shall be
construed as enabling the Authority
to dispose of land by way of gift
but subject to this condition,
reference in this Act to the
disposal of land shall be construed
as reference to the disposal
thereof in any manner, whether by
way of sale, exchange or lease or
by the creation of any easement,
right to privilege or otherwise.
(3) Subject to the provisions
hereinbefore contained, the
Authority may, sell, lease or
otherwise transfer whether by
auction, allotment or otherwise any
land or building belonging to it on
such terms and conditions as it
may, by regulations, provide.
(4) The consideration money for any
transfer under sub-section (1)
shall be paid to the Authority in
such manner as may be provided by
regulation.
(5) Notwithstanding anything
contained in any other law, for the
time being in force, any land or
building or both, as the case may
be, shall continue to belong to the
Authority until the entire
consideration money together with
interest and other amount, if any,
due to the Authority, on account of
the sale of such land or building
or both is paid.
(6) Until the conditions provided
in the regulations are fulfilled,
the transferee shall not transfer
his rights in the land or building
except with the previous permission
of the Authority, which may be
granted on such terms and
conditions as the Authority may
deem fit." Regulation 3 provides the mode of disposal thus:
"Mode of disposal - Subject to any
direction issued by the State
Government under the Act and to the
provisions of sub-section (5) of
section 15 of the Act:
(a) the Authority may dispose of
any land belonging to it in
developed or an undeveloped form;
(b) any land or building of the
Authority may be disposed of by
Authority by way of sale or lease
or exchange or by the creation of
any easement right or privilege or
otherwise;
(c) the Authority may dispose of
its land or building by way of sale
or lease either by allotment or by
auction, which may be by open bid
or by inviting tenders.
SALE OR LEASE OR LAND/BUILDING BY
ALLOTMENT
4. Fixation of tentative
price/premium -
(1) The tentative price/premium for
the disposal of land or building by
the Authority shall be such as may
be determined by the authority
taking into consideration the cost
of land, estimated cost of
development cost of buildings and
other direct and indirect charges,
as may be determined by the
Authority from time to tine.
(2) An extra 10% and 20% of the
price/premium shall be payable for
"preferential" and Special
preferential" Plots respectively.
5. Procedure in case of sale or
lease of land or building by
allotment -(1) In the case of sale
or lease of residential and
industrial land or building by
allotment the intending purchaser
shall make an application to the
Estate Officer concerned in the
prescribed form (annexed to these
regulation) as given in forms ’A’
and ’B’ respectively.
(2) No application under sub-
regulation
(1) shall be valid unless it
accompanied by such amount as may
be determined by the Authority,
which shall not be less than ten
per cent of the price/premium in
the form of a demand draft payable
to the Estate Officer, and drawn on
any scheduled bank situated at the
local place of the Estate Officer
concerned or any other such place
as the Estate Officer may specify.
(3) In the case of residential
plot/building when the application
has been so tendered, the Estate
Officer or such other office as may
be empowered, shall subject to such
directions as may be issued by the
Authority in this behalf consider
the applicant for allotment of a
plot cr buildings of the size
applied for. The allotment may be
on ’first come first served’ basis
or by draw of lots, as may be
determined by the Authority and the
successful applicant shall be sent
allotment letter, in form ’C’ or
’CI’ by registered post;
Provided that for the purposes
of proper planning and development
of an urban estate, mind or
building may be reserved for groups
or individuals or for persons
practicing any profession or
carrying or any occupation, trade
or business or for such other
category of Persons, Government
Departments and institutions,
charitable institutions and other
organisations of public welfare, as
may be decided by the Authority
From time to time."
A reading thereof, in particular Section 15 [3] read with Regulation 3 [c] does indicate that there are several modes of disposal of the property acquired by HUDA for public purpose. One of the modes of transfer of property as indicated in sub-section (3) of Section 15 read with subregulation (c) of Regulation 5 is public auction, allotment or otherwise. When public authority discharges its public duty the word otherwise would be construed to be consistent with public purpose and clear and unequivocal guidelines or rules are necessary and not at the whim and fancy of the public authorities or under their garb or cloak for any extraneous consideration. It would depend upon the nature of the scheme and object of public purpose sought to be achieved. In all cases relevant criterion should be predetermined by specific rules or regulations and published for the public. Therefore, the public authorities are required to make necessary specific regulations or valid guidelines to exercise their discretionary powers; otherwise the salutary procedure would be by public auction. The Division Bench, therefore, has rightly pointed out that in the absence of such statutory regulations exercise of discretionary power to allot sites to private institutions or persons was not correct in law.
The Division Bench has doubted the bona fides in the allotments in question, as expressly found in the judgment Since the learned single Judge had accepted the averments, but the Division Bench was not inclined to accept the same and doubted the bona fides of the actions of the authorities and resultant allottees, due to absence of any strong material we cannot lightly brush aside or disagree with the observations made by the learned Judges of the Division Bench. Under those circumstances, we are incline to uphold the order of the Division Bench subject to the following further directions:
While accepting the directions given by the Division Bench we further add that the Committee would, as suggested by the Division Bench, in evaluating the property, determine the market value of the sites allotted prevailing as on September 11, 1992 in the light of the directions issued in the light of the direction issued in the judgment, After the determination so made, an option would be given only to the petitioners, i.e., Ajay Memorial School,Ashok Trehan Memorial Charitable Trust and Manav Mangal Society and Lt. Col. Y.P. Mahindru, for payment of the market price in lumpsum. In the event of their accepting the offer the same shall be laid before the first court of the High Court to obtain tile approval thereof. The High Court, before giving approval, would consider the valuation and other relevant material. The HUDA also is directed to frame an appropriate scheme for allotment of the sites under discretionary power or other made otherwise than by public auction and then place the scheme before the first court of the High Court and obtain approval of the validity and correctness of the scheme and would thereafter proceed with the disposal of properties in future. As far as allotment to the petitioners, viz, Ajay Memorial Schools Ashok Trehan Memorial Charitable Trust and Manav Mangal Society and Lt. Col. Y.P. Mahindru, in these special leave petitions is concerned, the same will be subject to the above directions and in the event of their non-acceptance, the properties should be put to public auction along with other sites and buildings. The plots allotted to the rest of the petitioners other than those cases where notices were issued, will be subject to the directions issued by the Division Bench. The other unallotted plots also should be put to public auction as ordered by the Division Bench.
The Special Leave Petitions are accordingly ordered. SLP Nos 12720-23 of 1996
Issue notice returnable within four weeks. In addition dasti service also is permitted. In respect of the plot covered in these petitions, it would be subject to orders after service of notice.