New India Public School & Ors Vs. Huda & Ors [1996] INSC 807 (15 July 1996)
Ramaswamy,
K.Ramaswamy, K.G.B. Pattanaik (J)
CITATION:
JT 1996 (7) 103 1996 SCALE (5)553
ACT:
HEAD NOTE:
WITH SPECIAL
LEAVE PETITION (CIVIL) NOS.12261-64, 12338-41, 12720-23 AND 13053 OF 1996.
O R D
E R
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 sub- regulation (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 pre- determined 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.
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