- (1.) THE following questions of law were referred for the decision by a Larger Bench on 6.2.2012 while hearing the writ petition mentioned above and CWP Nos.3821 of 2008 and 14643 of 2008 filed by Career Launcher (I) Ltd. and M/s RSG Educational & Charitable Society (Regd.) respectively, inter alia, finding conflict in two judgments and also keeping in view the importance of the issues arising in large number of cases: 1. Whether a scheme for allotment of sites by mode otherwise than public auction is required to be published separately by way of regulations or can be culled down from the brochure? 2. Whether the criteria of staff education and training centre relates to training of in-house staff or training to the third persons in view of intention made know in the subsequent clause, when the commercial and manufacturing activities are not permissible in the institutional site? 3. Whether the principle of promissory estoppel can be invoked against the petitioners having participated in the selection process and which of the judgment lays down correct principle of law i.e. Delhi Assam Roadways Corporation Ltd. case (supra) on the one hand and Anil Kumar and U.G.Hospital Pvt. Ltd. cases (supra) on the other? 4. Whether this Court in exercise of powers of judicial review, can take a different view regarding suitability of applicants for allotment of plots in the absence of any proof of allegations of mala fide, favouritism or nepotism? Though CWP 2297 of 2007 alone was referred to the Larger Bench, but liberty was given to all the learned counsel in the other cases to assist this Bench. We have heard not only the counsels representing the parties in CWP No.2297 of 2007, but also the counsels representing parties in the other petitions.
(2.) THE facts in brief, giving rise to the present order, are that all the writ petitioners applied for allotment of institutional plots in Sectors 20-A and 20-B, Faridabad, advertised for sale by Haryana Urban Development Authority (for short 'the Authority') constituted under Haryana Urban Development Authority Act, 1977 (for short 'the Act'). Initially, the Authority had invited applications to allot "freehold institutional plots for Corporate Offices, Research & Development Centres, Corporate Towers and Staff Training Institutes" in Sectors 20-A and 20-B, Faridabad in the year 2004. The allotments were to be made on an on-going "first come first served" basis. There were plots for Government Organizations as well as for Private/ Non- Government Organizations contemplating separate rates for Government Organizations and for Private/Non-Government Organizations. In terms of such process of sale, it appears that only 16 applications were received. Thereafter, another advertisement was published in respect of the same plots, which were part of the earlier process of advertisement, but with stipulation that the booking of these plots commences on 10.02.2006 and closes on 10.03.2006. There was marginal increase in the cost of the plots as well. The plots allotted at Faridabad in pursuance of the second advertisement are the subject matter of challenge in these writ petitions. The primary ground of challenge is based upon the decision of the Hon'ble Supreme Court in New India Public School & others Vs. HUDA & others AIR 1996 SC 3458 and some of the judgments of this court following the said judgment. The Supreme Court judgment in the aforesaid case arose in pursuance of an advertisement issued in 1988 by the Authority inviting applications for school sites located in Urban Estate, Panchkula. The applications were to be received on or before 30.03.1988. The allotment of school sites in pursuance of the said advertisement became subject matter of challenge before this Court in CWP No.1303 of 1989. The advertisement so published (as appended in CWP No.1303 of 1989) reads as under:- "...The individuals/institution should apply to the Estate Officer, HUDA, Panchkula, on the following proforma with earnest money of Rs.2500/- in shape of Bank Draft payable at Panchkula in favour of Estate Officer, HUDA, Panchkula. 1. Name of Institution 2. Constitution whether trust or registered Society, its aims and objects, the name and particulars of members of the Governing Body, last audit report Financial position and details of similar institutions already set up at other places etc. 3. Requirement of land 4. Purpose for which the land is required 5. Financial position of the institution (with bank reference) 6. Requirement of electricity and water supply 7. Any other relevant information, which the institution may like to give 8. Bank draft of Rs.2500/- in the name of Estate Officer, HUDA 9. Land Utilization plan 10. Recommendation of concerned D.C. Organizing Secretary Preference will be given in following orders:- 1. Haryana Education Department 2. Central Schools Organization/Education Department of Government of India 3. Prominent national level/regional level institutions 4. Existing schools with good reputation 5. Others" The aforesaid writ petition was allowed by learned Single Bench on 11.09.1992 in a judgment reported as Seven Seas Educational Society Vs. Haryana Urban Development Authority & others AIR 1993 Punjab and Haryana 71. Learned Single Judge found that the Selection Committee, which considered the applications of all the applicants took into account the reputation of the institution, its creditability, quality of education and the financial position before making its recommendations and that some reasons have been given for selecting the private respondents for allotment of school sites, but no reason whatsoever was forthcoming for rejecting the claim of the petitioners and other applicants. Thus, the learned Single Judge concluded that allotment of school sites was considered by HUDA and its selection committee in a most arbitrary manner without adopting any uniform yardstick in weighing the merits and demerits of the applicants. After returning such finding, the learned Bench issued following directions: (1) HUDA will frame and adopt objective and uniform guidelines for the purpose of making selection of applicants for the allotment of school sites. (2) The claims of the petitioner herein, if they apply, will be considered for the allotment of school sites by HUDA on priority basis meaning thereby that other things being equal, the petitioners will be preferred in the matter of allotment. (3) Those of the petitioners who are already running their schools in residential houses at Panchkula will not be evicted therefrom till their applications for allotment have been finally decided. In case, an allotment is in their favour, they will be given reasonable time to construct the school building. The petitioners, however, undertake that in the event of their applications for allotment being rejected, they will vacate the existing premises within six months from the intimation received by them in this regard.
(3.) THE Division Bench accepted the appeal in a judgment reported as Seven Seas Educational Society Vs. The Haryana Urban Development Authority & others AIR 1996 Punjab and Haryana 228. The Bench observed that without ascertaining the tentative price of the site, acceptance of Rs.2500/- as earnest money appears to be against the interest of the authority. It also found that a school site was allotted in Sector 12, when it had not applied for allotment of site in the said Sector. From the record, the Bench observed as under: 28. The skeleton record of the respondent-authority produced before us and the pleading of the parties reveals: (i) that before advertising the school site, the area of such site was neither determined nor notified; (ii)that no tentative premium as required under the Regulations was determined before inviting applications; (iii)that the applications were not invited in accordance with the procedure prescribed under Regulation 5; (iv)that the amount of earnest money was not determined as mandated by Regulation 5(2); (v)that no terms and conditions were specified to be applicable upon allotment; (vi)that no criterion was determined before initiating the process of allotment; (vii)that the Committee was constituted as per some alleged instructions issued by the Authority which were not brought on record or produced before the Court during the pendency of the writ petitions or Letters Patent Appeals; (viii)that the so called criterion adopted by the Committee was more observed in breach than in compliance; (ix)that the criterion adopted was neither resonable nor proper and did not achieve the object for which the allotments were being made; (x)that the allotments are shown to have been made or rejected mainly on the ground of the recommendations of the Deputy Commissioner; (xi)that no reason was assigned for resorting to the method of allotment by ignoring the method of allotting by auction; (xii)that the interests of the HUDA were admittedly not protected; and (xiii)that the school sites have been allotted without specifying the amount to be paid as premium for such sites on allotment. The Bench concluded with the following observations: 38. ....The writ petitions filed by the appellants shall be deemed to be disposed of with the following directions: (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 predetermined 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 allottees 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) In case, 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 per cent of the bid amount offered by them; (i) Out of the amount realized 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.2000/- per appeal. The Hon'ble Supreme Court in New India Public School's case (supra) while considering the statutory provisions and the Regulations framed thereunder, returned the following findings: "5. 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 the consistent with the 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. ;