TaxTMI 
TaxTMI 
2009 (4) TMI 833
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....tain areas of Uttar Pardesh according to plan and for matters ancillary thereto. The main object and reasons for the enactment was to tackle resolutely the problems of town planning and urban development in the State of Uttar Pardesh. FACTUAL MATTERS : 5. On 12.05.2000, MDA allotted a plot of land admeasuring 20,000 sq.mts. situated in Pocket `O' Ganga Nagar Residential Scheme at the rate of Rs.560/- per sq.m. to AMS for construction of buildings meant to be utilised for educational purposes. The reserved price has been fixed in terms of G.O. dated 19.04.1996 which provides that plots for educational institutions/engineering colleges shall be sold at 50% of the sector rate. The AMS has requested to allot an additional land of 20,000 sq mts. and 37,000 sq. mts. in Ganga Nagar Residential Scheme for establishment of engineering college and other degree colleges, e.g. masters' course such as MBA, MCA etc. It is noteworthy that the land use of the above mentioned land in the Meerut Master Plan 2001 has been shown as `Residential medium Density'. The MDA having considered the request and other relevant factors resolved to invite tenders from interested persons to allot the land ad....
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....of only 37,000 sq.mts. of land. In all fairness the matter should have ended there. But it did not. 8. AMS having accepted the offer of 37,000 sq.mts. of land, raised an objection stating injustice has been done by the Authority in fixing the reserved price @ Rs.690/- per sq.m. even though adjoining plots were allotted @ Rs.500/- and Rs.560/- per sq.m. MDA in its meeting held on 15.03.2002 has decided that the disposal of the land be made through Open Tender-cum-Auction for residential use after giving wide publicity. The Authority considered the offer stated to have been made on behalf of the officer's Class Housing Society of the Canal Colony to purchase the bulk of land admeasuring 20,000 sq.m. @ Rs.775/- per sq.m. and as well as the letter dated 04.03.2002 sent by AMS. Since this letter reflects the attitude and conduct of AMS, it is required to be noted in its entirety: "The Chairman, Dated 04.3.2002 Meerut Developmetn Authority, MEERUT. Subject :- ALLOTMENT OF LAND AT GANGA NAGAR. Hon'ble Sir, Following facts are submitted for your honour's kind consideration:- 1. That M.D.A. on 19.9.2001 floated a tender for allotment of two pieces of land measuring 37,000 and....
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....002, permitted MDA to allot the land in pursuance of the advertisement dated 15.04.2002 "but the allotment shall be subject to the decision of this Writ Petition. It shall also be mentioned in the allotment order, if issued by MDA to the allottee." 12. In the auction Pawan Kumar Aggarwal, the appellant in C.A.Nos. 2620-2621/09 arising out of SLP ( C ) No. 1602-03/2008 became the highest bidder @ Rs.1365/- per sq.m. and the bid was accepted. He has deposited only the earnest money of Rs.5.50 lakhs. The balance consideration was required to be paid in installments. But during the pendency of the Writ Petition, the MDA vide its order dated 14.05.2007, cancelled the auction and the decision of allotment to Pawan Kumar Aggarwal. He filed the Writ Petition No.3007 of 2007 challenging the order of cancellation. The High Court by the impugned order allowed the Writ Petition filed by AMS and dismissed the Writ Petition filed by Pawan Kumar Aggarwal. Hence these appeals. SUMMARY OF SUBMISSIONS : 13. We have heard the learned senior counsel Shri P.S. Patwalia for the appellant - MDA, Shri Rakesh Dwivedi appearing on behalf of the appellant - Shri Pawan Kumar Aggarwal and Shri Sunil G....
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....est requires allotment of the said land in favour of AMS which is catering the needs of public at large in imparting education in engineering courses. These contentions are culled out from the storms of submissions made during the course of hearing of these appeals. ISSUES REQUIRING RESOLUTION : 15. Shorn of all the details and embellishments and notwithstanding the display of forensic skills by the senior counsel, the substantial question that really arises for our consideration in these appeals is whether the decision of MDA dated 15.03.2002 resolving to invite fresh tenders and making the land available for residential use suffers from any legal or constitutional infirmities? 16. Having regard to the above submissions, we propose to deal with the matter from the following four aspects: a) what is the nature of rights of a bidder participating in the tender process? b) the scope of judicial review in contractual matters; c) whether the decision of the Authority is vitiated by any arbitrariness and therefore hit by Article 14 of the Constitution of India? and d) whether the decision is not in public interest? WHAT IS THE NATURE OF RIGHTS OF A BIDDER PART....
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....as different. The reserved price of 20,000 sq. mts. was expressly and clearly mentioned at Rs.690/- per sq.m. There is no ambiguity nor any confusion in this regard. AMS itself mentioned different and separate bids in their tender and made a bid at Rs.560/- per sq.m. for 20,000 sq.mts plot which was less than that of the reserved price. The Authority was not under any legal or constitutional obligation to entertain the bid which was much below the reserved price. The plea that there was some vagueness, uncertainity and misunderstanding in the matter of depiction of rates is clearly an after thought. AMS never sought any clarification whatsoever from the Authority as regards the fixation of reserved price in respect of 20,000 sq. mts. of plot. This plea is not raised even in the Writ Petition filed by the AMS. 20. Be that as it may, the MDA though not under any obligation, provided a further opportunity to the Society and expressed its willingness to part away with the land provided AMS agreed to pay the reserved rate of Rs.690/- per sq.m. AMS did not avail this opportunity. Even at this stage AMS did not say that it was under some confusion as regards the specified reserved pric....
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....1) SCC 676], Global Energy Ltd. vs. Adani Exports [2005(4) SCC 435] and Purvanchal Projects Ltd. vs. Hotel Venues [2007(10) SCC 33]. 22. The bids offered by AMS received their due attention in a fair and transparent manner free from any bias at the hands of MDA. No rights of AMS have been infringed by MDA in not giving opportunity to involve itself in lengthy negotiations. The Authority was free to make its choice and to invite fresh bids after the Society relinquished its claim in respect of the disputed plot vide letter dated 17.09.2001 which was accepted by MDA. The decision of the Authority was duly communicated to the AMS by MDA vide its letter dated 27.11.2001. The decision so taken by the MDA resolved in infringement of rights of AMS. SCOPE OF JUDICIAL REVIEW IN CONTRACTUAL MATTERS: 23. In Tata Cellular (supra) this Court observed that "Judicial quest in administrative matters is to strike the just balance between the administrative discretion to decide matters as per government policy, and the need of fairness. Any unfair action must be set right by judicial review." 24. In Chief Constable of North Wales Police Vs. Evans [(1982) 3 AIIER 141], Lord Hailsham state....
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....ined from it, unless of course, there are other considerations which render it reasonable and in public interest to do so." The law has been succinctly stated by Wade in his treatise, Administrative Law: "The powers of public authorities are therefore essentially different from those of private persons. A man making his will may, subject to any rights of his dependants, dispose of his property just as he may wish. He may act out of malice or a spirit of revenge, but in law this does not affect his exercise of his power. In the same way a private person has an absolute power to allow whom he likes to use his land, to release a debtor, or, where the law permits, to evict a tenant, regardless of his motives. This is unfettered discretion. But a public authority may do none of these things unless it acts reasonably and in good faith and upon lawful and relevant grounds of public interest. So a city council acted unlawfully when it refused unreasonably to let a local rugby football club use the city's sports ground, though a private owner could of course have refused with impunity. Nor may a local authority arbitrarily release debto....
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....l from their decision. The courts have invented the remedies of judicial review not to provide the appeal machinery but to ensure that the decision maker does not exceed or abuse his powers... But the rules of natural justice do not render a decision invalid because the decision maker or his advisers make a mistake of fact or a mistake of law. Only if the reasons given by the ITC for the decision to reject the application... disclosed illegality, irrationality or procedural impropriety. could the decision be open to judicial review." In the concluding section of his speech, he added: "Of course in judicial review proceedings, as in any other proceedings, everything depends on the facts. But judicial review should not be allowed to run riot. The practice of delving through documents and conversations and extracting a few sentences which enable a skilled advocate to produce doubt and confusion where none exists should not be repeated." One has to bear in mind the caution administered by Lord Scarman in Nottinghamshire Country Council Vs. Secretary of State for the Environment [(1986) 1 AIIER 199] that: "Judicial review' is a great weapon in the hands of the judges; but the judg....
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....f Article 14 of the Constitution. This was done for making higher financial gain and profit and that too, at the instance of an alleged unverified extraneous person overlooking the demands of public interest as well as law and order problems that may arise on account of peculiar location of the plot in the midst of existing higher education campuses belonging to AMS. We find no merit in this submission. The claim of AMS, in our considered opinion came to an end on 17.9.2001 when it had intimated the MDA to delete its offer in respect of the disputed plot on the ground that the cost of that land as stipulated is not a viable one. This was followed by its letter dated 3.1.2002, once again stating that it was injustice to fix Rs. 690/- per sq. meter for the disputed land while adjoining plots were allotted for Rs. 500/- per sq. meter and Rs. 560/- per sq. meter respectively. There were no further negotiations and any response from MDA to the said letter dated 3.1.2002. The letter dated 4.3.2002 from AMS to MDA indicating the acceptance of Rs. 690/- per sq. meter only after one Harpal Singh Chowdhary on behalf of the Officer's Class Housing Society had mentioned a higher price of Rs....
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....ority in the present case did not suffer from absence of jurisdiction nor was vitiated and ultra vires. Financial gain was not at the cost of any social welfare. 29. In Padma Vs. Hiralal Motilal Desarda & Ors., [(2002) 7 SCC 564] this Court found that CIDCO's decision to part with the chunk of developable land was obviously in departure from the policy of serving on "no-profit-no-loss" basis to such people as were craving for a roof over their heads. It is in that context the Court observed; the land acquired and entrusted to CIDCO cannot just be permitted to be parted with guided by the sole consideration of money making. CIDCO is not a commercial concern whose performance is to be assessed by the amount it earns. Its performance would be better assessed by finding out the number of needy persons who have been able to secure shelter through CIDCO and by the beauty of the township and the quality of life for the people achieved by CIDCO through its planned development schemes. It was in that context the court observed; there should have been no hurry on the part of CIDCO in disposing of the balance land and that too guided by the sole consideration of earning more money. The....
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....o reject the tender of the AMS as the offer made was much below than the reserved price. In fairness, the matter should have rested at that but for the unwarranted repeated representations by the AMS without any lawful claim; the MDA if at all committed an error it was by entertaining such representations and entering into avoidable correspondence with the AMS. CHANGE OF LAND USE : 31. Now, we proceed to deal with the question whether the decision to change the land use is unreasonable? It was submitted that the decision of the MDA on 15.3.2002 to upturn the decision of 7.7.2001 and change the land use of the disputed plot from educational to housing and not to allot the same to AMS is ex facie arbitrary and unreasonable. We find no merit in this submission. The disputed land in the Master Plan is reserved for `Residential' purpose. The residential category of use is a category in contrast with industrial, agricultural, commercial, recreational, green belt, or institutional category in use. It does not mean exclusive use for housing on every inch of the land. The expression residential use in the Master Plan means that the land can be used for housing, various other kinds of ....
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.... institutions imparting education in engineering at a concessional rate i.e. to say 50% of the sector rate and accordingly fixed reserve price @ Rs. 690/- per sq. meter. The public interest parameters have been duly taken into consideration by the Government itself in directing MDA to make the lands available to educational institutions at a concessional rate. It is difficult to appreciate as to what more the AMS expects from the Authority. The Society in fact availed that assistance from MDA on an earlier occasion but failed to avail the facility this time for which the AMS has to blame itself. The AMS having failed to offer at least the reserved price cannot be permitted to turn round and ask for a mandamus to allot the land in its favour based on self-serving representations. The AMS indulged to say the least in speculative litigation. We accordingly find no merit in the submission of the AMS placing reliance upon the Directive Principles of State Policy and more particularly, Article 41 of the Constitution of India which says that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education an....
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.... appropriate and sub-serve public interest than making it available for residential use. Public interest floats in a vast, deep-ocean of ideas, and "imagined experiences". It would seem to us wise for the courts not to venture into this unchartered minefield. We are not exercising our will. We cannot impose our own values on society. Any such effort would mean to make value judgments. The impugned judgment illustrates "the danger of judges wrongly though unconsciously substituting their own views for the views of the decision maker who alone is charged and authorized by law to exercise discretion." With respect, we find that the High Court virtually converted the judicial review proceedings into an inquisitorial one. The way proceedings went on before the High court suggest as if the High Court was virtually making an inquiry into the conduct and affairs of the MDA in a case where the court was merely concerned with the decision making process of the MDA in not accepting the offer/tender of the AMS in respect of the disputed plot on the ground that the offer so made was less than that of the reserve price fixed by the MDA. We express our reservation in the manner in which the High ....
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....nd supplementary affidavits were exchanged between the parties in the High Court. On 2.4.2007, the High Court allowed impleadment application of the appellant-Pawan Kumar Agarwal. During the course of hearing, the High Court on 8.5.2007 directed the Vice- Chairman, MDA to file additional affidavit inter alia explaining as to why allotment in favour of appellant-Pawan Kumar Agarwal was not cancelled when it has deposited only earnest money and not the balance of total consideration and whether the earnest money could be forfeited by MDA? MDA, obviously was reeling under the pressure and took decision to cancel the auction of the plot by its order dated 14.5.2007 on the grounds stated therein. Thereafter, MDA filed supplementary affidavit mentioning about cancellation of auction. The appellant-Pawan Kumar Agarwal filed Writ Petition No. 30074 of 2007 challenging the cancellation of auction. The High Court vide common impugned judgment dismissed the appellant-Pawan Kumar Agarwal's writ petition. 38. We find some merit in the submission made by learned senior counsel Shri Rakesh Dwivedi that the cancellation of the auction was not tenable. But the fact remains the appellant deposite....